U.S. v. Romero, 96-2078
| Decision Date | 20 August 1997 |
| Docket Number | No. 96-2078,96-2078 |
| Citation | 122 F.3d 1334 |
| Parties | 97 CJ C.A.R. 1667 UNITED STATES of America, Plaintiff-Appellee, v. James Manuel ROMERO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Alonzo J. Padilla, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.
Louis E. Valencia, Assistant U.S. Attorney (John J. Kelley, U.S. Attorney, with him on brief), Albuquerque, NM, for Plaintiff-Appellee.
Before TACHA, HENRY, and LUCERO, Circuit Judges.
Defendant James Manuel Romero appeals his conviction and sentence resulting from his participation in a carjacking and robbery. On appeal, Romero contends that: (1) the government presented insufficient evidence that he intended to cause death or serious bodily harm as required by the federal carjacking statute; (2) the prosecutor's closing arguments and the jury instructions improperly informed the jury that they could convict Romero of carjacking based on conditional intent; (3) Congress exceeded its power under the Commerce Clause in enacting the federal carjacking statute; (4) the government presented insufficient evidence that the robbery affected interstate commerce to justify federal prosecution under the Hobbs Act; (5) Romero's prior conviction for conveying a
weapon in a federal prison is not a "violent felony" under the Armed Career Criminal Act; (6) Romero's prior conviction for conveying a weapon in a federal prison is not a "serious violent felony" under the mandatory life imprisonment statute ("Three Strikes law"); (7) one of Romero's convictions for using or carrying a firearm during and in relation to a crime of violence does not constitute a "second or subsequent conviction;" and (8) the district court failed to make specific factual findings regarding Romero's objections to findings in the presentence report. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. We remand for the district court to make specific factual findings regarding Romero's objections to the presentence report and affirm as to the remaining issues.
The charges against Romero arose from his participation in a carjacking and robbery that took place near Taos, New Mexico. We view the evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the government. United States v. Zeigler, 19 F.3d 486, 488 (10th Cir.), cert. denied, 513 U.S. 1003, 115 S.Ct. 517, 130 L.Ed.2d 422 (1994).
On the evening of October 30, 1994, Michael Ninneman, his wife Patricia, and their handicapped daughter Vanessa arrived at their home in an isolated area approximately five miles from Taos. As Mr. and Mrs. Ninneman exited their vehicle and prepared to go into the house, two screaming masked men ran around the side of the house and confronted the Ninnemans. Each man had a gun. One of the men wore a lighter mask and was later identified as the defendant in this case, James Manuel Romero.
One of the masked men hit Mr. Ninneman on the head and knocked him to the ground. At gun point, the men ordered Mr. Ninneman to open the door to the house. Upon entering the house, the armed men began asking, Tr. at 80. The men ordered Mr. Ninneman to lay face down in the entryway and do what he was told or the men would "blow a hole in ... [his] head." Tr. at 102. As Romero stood watch over Mr. Ninneman, his accomplice dragged Mrs. Ninneman to the house, tied her up, and placed a pillowcase over her head. The darker masked man then took Mr. Ninneman's glasses, tied him up, and draped a white cloth over his head.
The darker masked man began rummaging through the house looking for money and a safe. Meanwhile, Romero placed his knee on Mr. Ninneman's back and held a gun to his head. Romero told Mr. Ninneman not to do anything or Romero would "blow a hole in [his] head." Tr. at 105. Demanding to know the location of the safe, Romero hit Mr. Ninneman on the side of the head with his gun, kicked him in the chin, split his chin open, and tried kicking him in the groin. Mr. Ninneman told Romero that if they wanted money, the men would have to go to his restaurant in Taos, Michael's Kitchen. Mr. Ninneman, however, pleaded that the men bring his handicapped daughter into the house before going to the restaurant. They agreed.
The men placed Mr. Ninneman in the back seat of the Ninneman's Chevy Suburban and told him that if he lay face-down and kept quiet he would not be hurt. Shortly after 8:30 p.m., the masked men and Mr. Ninneman arrived at Michael's Kitchen. Scheduled to be closed for the next six weeks, the restaurant was not open for customers. About ten employees, however, were working inside.
The darker masked man entered the restaurant first and screamed at the employees to get down on the floor. Romero, holding a gun to Mr. Ninneman's head, led him into the restaurant. As Romero held the employees at gunpoint, the darker masked man led Mr. Ninneman to the office. He forced Mr. Ninneman to unlock the office door and open the safe, where he took over $10,000 in cash and an unknown number of checks. He then ran with the money out the back door of the restaurant.
Meanwhile, the Taos Police Department received a call that an armed robbery was in progress at Michael's Kitchen. Officer Ricardo Medina and two other officers responded to the call. Officer Medina approached the restaurant from the back alley. Hiding behind two dumpsters, he observed Romero As the vehicle sped out of the area, Romero rose to his feet and ran into a nearby wooded area. Shortly thereafter, Officer Medina found a .357 Magnum revolver with one spent cartridge and five live rounds where Romero fell.
standing on a platform behind the restaurant and shouted, "Police Officer. Drop your weapon." Romero looked around and pointed his gun in the officer's direction. Again, Officer Medina ordered Romero to drop his weapon. Romero jumped off the platform and ran toward the Ninneman's Chevy Suburban. For a third time, Officer Medina ordered Romero to stop and drop his weapon. Romero turned around and fired a shot in the officer's direction. In response, Officer Medina fired his shotgun and wounded Romero. Romero turned around and ran toward the Chevy Suburban, which was then spinning its tires and accelerating forward. Romero appeared to hit the side of the vehicle and fall to the ground
Later than night, Officer Medina found Romero in a local cemetery bleeding profusely from his chest and right arm. Law enforcement officers found the Chevy Suburban abandoned in an alley east of Michael's Kitchen. Romero's accomplice was never found.
The government indicted Romero on seven counts: conspiracy to commit carjacking and robbery and extortion affecting interstate commerce in violation of 18 U.S.C. §§ 2119 and 1951(a) (Count I), carjacking in violation of 18 U.S.C. §§ 2 and 2119 (Count II), using or carrying a firearm during and in relation to carjacking in violation of 18 U.S.C. § 924(c)(1) (Count III), interference with commerce by robbery and extortion in violation of 18 U.S.C. §§ 2 and 1951(a) (Count IV), using and carrying a firearm during and in relation to interference with commerce by robbery and extortion in violation of 18 U.S.C. § 924(c)(1) (Count V), receipt of a stolen firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2) (Count VI); and being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count VII). A jury convicted Romero on all counts.
On March 13, 1996, the district court sentenced Romero to three concurrent life imprisonment terms on Counts I, II, and IV under the "Three Strikes" provision of 18 U.S.C. § 3559(c)(1)(F). The court also imposed a sentence of 120 months on Count VI to run concurrently with Counts I, II, and IV; 327 months on Count VII to run concurrently with Counts I, II, IV, and VI; 60 months on Count III to run consecutively to Counts I, II, IV, VI and VII; and 240 months on Count V to run consecutively to all the other counts. Romero's total sentence amounted to life imprisonment plus twenty-five years.
Romero argues that his carjacking conviction cannot stand because the government presented insufficient evidence to establish that Romero had the requisite intent to commit the offense. Romero contends that for a jury to find him guilty of carjacking, the statute requires proof beyond a reasonable doubt that he intended to cause death or serious bodily injury whether or not the victim agreed to relinquish his car. In contrast, the government maintains that the "intent to cause death or serious bodily injury" element of the carjacking statute is satisfied if the government is able to show that Romero intended to cause death or serious bodily injury if the victim refused to relinquish his or her car. Conditional intent, the government asserts, is enough.
We review the district court's interpretation of a criminal statute de novo. 1 United States v. Rothhammer, 64 F.3d 554, 557 (10th Cir.1995). In interpreting a statute, we begin with the plain language of the statute itself. United States v. Green, 967 F.2d 459, 461 (10th Cir.1992). If the terms of the statute are unambiguous, our inquiry ends. Id.
In October of 1994, at the time of the incident in this case, the federal carjacking statute provided:
(2) if serious bodily injury ... results, be fined under this title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or...
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