U.S. v. Martinez-Bermudez

• Decision Date: 01 November 2004
• Docket Number: No. 02-2419.,02-2419.
• Citation: 387 F.3d 98
• Parties: UNITED STATES, Appellee, v. Carlos MARTINEZ-BERMUDEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 98

387 F.3d 98

UNITED STATES, Appellee, v. Carlos MARTINEZ-BERMUDEZ, Defendant, Appellant.

No. 02-2419.

United States Court of Appeals, First Circuit.

Submitted June 21, 2004.

Decided November 1, 2004.

Appeal from the United States District Court for the District of Puerto Rico, Juan M. Perez-Gimenez, J Colleen E. Carafotes for appellant.

H.S. Garcia, United States Attorney, Nelson Pérez-Sosa and Sonia I. Torres-Pabón, Assistant United States Attorneys, for appellees.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

Appellant Carlos Martinez-Bermudez participated in a carjacking, recklessly drove the stolen vehicle against traffic on a crowded street, and eventually struck and killed a police officer. After being charged in a three-count indictment, he pled guilty to one count of aiding and abetting an armed carjacking that resulted in death in violation of 18 U.S.C. § 2119(3). The district court sentenced him to life imprisonment. He now appeals his sentence, arguing that the district court misapplied several provisions of the United States Sentencing Guidelines. We affirm.

I.

Because appellant was sentenced following a guilty plea, "[w]e distill the facts from the plea colloquy, the undisputed portions of the presentence investigation report... and the transcript of the disposition hearing." United States v. Brewster, 127 F.3d 22, 24 (1st Cir.1997). We summarize the facts in this section and recount additional facts in subsequent sections where appropriate.

On June 26, 2001, at about 1 p.m., Miguel Comas-Horta was driving past the service window of a Wendy's restaurant in Mayagöez, Puerto Rico. Three men — Wilber Heredia-Rivera (Heredia), David Nuñez-Pérez (Nuñez), and appellant Carlos Martinez-Bermudez (Martinez) — approached Comas-Horta's car. Heredia forced Comas-Horta at gunpoint to surrender his vehicle, and Martinez ordered him to throw himself on the ground. The three assailants then drove off at a high rate of speed. The police were soon informed of the crime and received a description of the stolen car.

At about 1:45 p.m., a Commonwealth motorcycle police officer saw the car driving on Comercio Street in downtown Mayagüez and followed it. The three assailants noticed the officer pursuing them and, with Martinez at the wheel, attempted to escape. During the pursuit, Nuñez threw two guns out the window of the car, one of which was later recovered by the Commonwealth police.

Two additional Commonwealth officers — Maria L. Colón-Ramos and William Camacho-Rivera — joined the pursuit in a patrol car. They made a u-turn on Comercio Street and stopped their vehicle. Officer Camacho-Rivera exited the patrol car and began to stop oncoming traffic. Martinez drove the stolen vehicle approximately sixty miles per hour down the wrong side of Comercio Street — that is, against the flow of traffic — and toward Officer Camacho-Rivera. Although Martinez had sufficient time to stop or change the direction of his vehicle, he did not do so. Instead, he struck and killed Officer Camacho-Rivera, then lost control of the car and struck two civilian vehicles before the stolen car finally came to a stop. Martinez, Nuñez, and Heredia were apprehended shortly thereafter.

II.

On July 24, 2001, a grand jury handed down a three-count indictment against Martinez. At his arraignment in August 2001, Martinez pled not guilty to all three counts. In April 2002, however, he agreed to plead guilty to Count One: aiding and abetting the taking of a vehicle by force which resulted in the death of Officer Camacho-Rivera.¹ In exchange for his guilty plea on Count One, the government agreed to request dismissal of Counts Two and Three.² The parties did not enter into any agreement regarding the application of the Sentencing Guidelines, except that the government agreed to support a three-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.³

The presentence report recommended, pursuant to U.S.S.G. § 2B3.1(c) (the robbery cross-reference to the first degree murder guideline), that Martinez receive a base offense level of forty-three. It also recommended the following adjustments: (1) a three-level upward adjustment pursuant to § 3A1.2 because the victim was a government officer; (2) a two-level upward adjustment pursuant to § 3C1.2 for reckless endangerment during flight from a law enforcement officer; (3) a two-level upward adjustment pursuant to § 3C1.1 for obstruction of justice; and (4) a three-level downward adjustment pursuant to § 3E1.1 for acceptance of responsibility. The adjustments resulted in a total offense level of forty-seven. At the sentencing hearing on September 30, 2001, the district court adopted the recommendations in the presentence report and applied a total offense level of forty-seven. Under the Guidelines' sentencing table, that total offense level requires a punishment of life imprisonment. See U.S.S.G. Ch. 5 Pt. A.

III.

On appeal, Martinez argues that the district court misapplied the Guidelines as a matter of law.⁴ First, he argues that the district court improperly applied a base offense level of forty-three. Second, he contends that the district court's imposition of both an upward adjustment for obstruction of justice and a downward adjustment for acceptance of responsibility is inconsistent. Finally, he argues that the district court engaged in impermissible double counting by imposing both an upward adjustment because the victim was a government officer and an upward adjustment for reckless endangerment during flight from law enforcement. We review de novo the district court's legal interpretation of the Guidelines. See United States v. Talladino, 38 F.3d 1255, 1263 (1st Cir.1994).

A. The Base Offense Level

U.S.S.G. § 2B3.1(c) provides that, in the case of a robbery:

If a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States, apply § 2A1.1 (First Degree Murder).

This section, which explicitly applies to robbery, also applies to carjacking. See United States v. Lebrón-Cepeda, 324 F.3d 52, 61 (1st Cir.2003) (per curiam), cert. denied sub nom. Caraballo-Gonzalez v. United States, ___ U.S. ___, 124 S.Ct. 232, 157 L.Ed.2d 167 (2003). 18 U.S.C. § 1111 provides in relevant part: "Murder is the unlawful killing of a human being with malice aforethought. Every murder... committed in the perpetration of ... robbery ... is murder in the first degree." Finally, U.S.S.G. § 2A1.1 mandates a base offense level of forty-three for first degree murder.

Martinez argues that § 2B3.1(c) is inapplicable in this case because Martinez did not kill Officer Camacho-Rivera "in the perpetration of ... robbery," but rather during his flight from pursuing authorities. This argument is unavailing. In interpreting 18 U.S.C. § 2119(2), the carjacking statute that applies when serious bodily injury "results," we have noted that "Congress intended to cover a fairly broad range of consequences flowing from a carjacking," and concluded that "the injuries covered ... include those caused by the carjacker at any point during his or her retention of the vehicle." United States v. Vazquez-Rivera, 135 F.3d 172, 178 (1st Cir.1998). Applying this principle to § 2119(3), which is parallel to § 2119(2) in all pertinent respects, a death "results" from a carjacking if that death was caused "at any point during [the carjacker's] retention of the vehicle." Therefore, the conduct to which Martinez admitted in his plea satisfied the elements of § 2119(3).

However, the fact that § 2119(3) covers a death incurred during flight does not end our inquiry for sentencing purposes. The offense guideline for § 2119 is U.S.S.G. § 2B3.1 (robbery), and the offense level must be calculated under that guideline. The cross-reference to § 2A1.1 (first degree murder) applies only if the requirements of 18 U.S.C. § 1111 (murder) are met.⁵ While it may seem intuitive that a death that "results" from a carjacking is also committed "in perpetration of" the carjacking, the analyses are formally distinct because they depend on interpretation of different statutes. Moreover, it is possible that a death might meet the standard of "result[ing]" from a carjacking while not the potentially higher standard of being committed "in perpetration of" that carjacking.

We have held repeatedly that "the law of this circuit is that the commission of a carjacking continues at least while the carjacker maintains control over the victim and [his or] her car." Lebrón-Cepeda, 324 F.3d at 61 (alteration in original) (internal quotation marks omitted); Ramirez-Burgos v. United States, 313 F.3d 23, 30 n. 9 (1st Cir.2002), cert. denied, 537 U.S. 1167, 123 S.Ct. 981, 154 L.Ed.2d 907 (2003); Vazquez-Rivera, 135 F.3d at 178. But those cases all involved injury to the victim of the carjacking itself, not to third parties. Indeed, the exact language of Ramirez-Burgos and Lebrón-Cepeda is that "the commission of a carjacking continues at least while the carjacker maintains control over the victim and her car." In this case, Martinez had relinquished control over Comas-Horta (the carjacking victim) some forty-five minutes before the police chase began, let alone the fatal crash.⁶

The problem of applying the felony murder doctrine to a death caused, not to the victim of the predicate robbery during its course, but to someone else during subsequent flight, has arisen in state law more often than under § 1111. For example, in People v. Kendrick, 56 Cal.2d 71, 14 Cal. Rptr. 13, 363 P.2d 13, 16 (1961), the defendant robbed a store and drove away, unpursued, at about seventy miles per hour. Some time (perhaps as much as forty-five minutes) later he was stopped by a traffic officer. The defendant mistakenly believed the officer intended to arrest him for the robbery, and shot the officer. Id....