U.S. v. Vega-Santiago

• Decision Date: 31 October 2007
• Docket Number: No. 06-1558.,06-1558.
• Citation: 519 F.3d 14
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Manuel A. VEGA-SANTIAGO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

519 F.3d 14

UNITED STATES of America, Plaintiff, Appellee, v. Manuel A. VEGA-SANTIAGO, Defendant, Appellant.

No. 06-1558.

United States Court of Appeals, First Circuit.

Heard March 9, 2007.

Decided October 31, 2007.

Johnny Rivera-Gonzáles, for appellant.

Thomas F. Klumper, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA and LIPEZ, Circuit Judges, and DICLERICO, JR.,^* Senior District Judge.

LIPEZ, Circuit Judge.

In 2005, a federal jury convicted Manuel Vega-Santiago ("Vega") of armed carjacking and related weapons charges. The district court imposed two consecutive ten-year sentences. On appeal, Vega contests his conviction on multiple grounds: the victims' identification of him was tainted and improperly admitted; the court erred in allowing testimony concerning his confession, which he claims was involuntarily given; the district court abused its discretion in reopening the case to allow the government to introduce additional evidence after he moved for a judgment of acquittal; and the evidence presented at his trial was insufficient to establish all elements of the charged offenses. We find no merit in any of these claims.

Vega also challenges his sentence, arguing that it is unreasonable and that he was not given proper notice of the court's intent to impose a sentence above the Sentencing Guidelines' range. This latter contention requires us to address an issue that has divided the circuits—whether the requirement in Federal Rule of Criminal Procedure 32(h) that a court give the parties "reasonable notice" of a contemplated departure from the Sentencing Guidelines applies post-Booker when a court is considering a sentence that varies from the Guidelines.

We conclude that Rule 32(h) applies to post-Booker variances, as well as to Guidelines departures. We also conclude that, in the circumstances of this case, the notice and the term of imprisonment were both reasonable. Thus, although we must remand for correction of the written judgment, which records an inaccurate sentence on one charge, we otherwise affirm the conviction and sentence.

I.

On the evening of September 6, 2005 Javier García-Toledo ("García") and Pedro Alarcón-Carrasquillo ("Alarcón") were confronted by an armed intruder in García's kitchen. The intruder—wearing black gloves, a black jacket, a black cap and a white shirt, and carrying a black bag of the style used to carry motorcycle helmets—brandished a gun and ordered the men to surrender their money and jewelry. Threatening to kill them, the intruder then demanded that García bring him the contents of his bedroom safe. While making these threats and demands, the intruder fired his gun in close proximity to the men. García initially believed he had been shot; however, the bullet missed him and lodged in the wall behind him. Shortly thereafter, García retrieved several pieces of jewelry from the safe but left his own firearm there, and he returned to the kitchen with the items.

Upon García's return, the intruder took the jewelry and asked whether García's car, a red Nissan 350Z, had a special alarm system. Ascertaining that it did not, the intruder demanded that García start the vehicle. The intruder then directed the men to the bedroom. Shortly thereafter, García and Alarcón heard the sound of the car's engine moving away from the house.

Confident that the intruder was leaving, García retrieved his pistol from the bedroom safe and the men pursued the intruder, firing at the car as it backed down the driveway. Using Alarcón's truck, the men pursued the intruder through the streets. Meanwhile, they called 911 to report the robbery. Happening upon a patrol car at a nearby convenience store, the men stopped to explain the situation to the police. At the officers' suggestion, García surrendered his weapon.

While the men were speaking with the police, the officers received the news that a vehicle matching the description of Garía's Nissan had been found. García and Alarcón drove to the scene, followed by the police officers. As they approached the site where the car was abandoned, the men saw a group of officers interviewing someone; both men spontaneously identified that person, appellant Vega, as the intruder. A search of the vicinity uncovered a black motorcycle bag containing black gloves, a baseball cap, a black mask, a black shirt, and a .357-revolver with its serial number defaced and one bullet expended. The stolen items were also discovered nearby. Six .357-caliber bullets in a speed-loader were recovered from Vega's pocket; the bullets were of the same make as the bullets found in the revolver.

Vega was arrested on the spot by local police and subsequently was transferred to federal custody. On September 21, 2005, a grand jury returned a three-count indictment charging him with: (1) an armed carjacking, with intent to cause death or serious injury, in violation of 18 U.S.C. § 2119(1); (2) the use and possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A); and (3) knowing possession of a firearm with an altered or obliterated serial number, in violation of 18 U.S.C. § 922(k). Vega pled not guilty on all counts.

Vega's trial commenced on November 8 and both sides completed their presentation of evidence that day. After the government rested, defense counsel filed a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29, claiming that the prosecution had not adduced sufficient evidence from which a reasonable jury could conclude that Vega had committed the crime of carjacking. In particular, the defense asserted that the prosecution had not provided substantial evidence of the car's movement in interstate commerce, a jurisdictional requirement under 18 U.S.C. § 2119. The district court allowed the government to re-open its case the next morning for the narrow purpose of presenting testimony regarding where the car was manufactured. After that testimony, both sides delivered their closing arguments. That same day, the jury found Vega guilty on all counts.

The Presentence Investigation Report ("PSR") prepared in advance of the sentencing hearing noted that the second count, charging use of a firearm during the carjacking, carried a mandatory minimum ten-year sentence, to be imposed consecutively to any other term of imprisonment. Although the carjacking offense carried a maximum statutory penalty of fifteen years' imprisonment, Vega's offense level and criminal history produced an advisory Guidelines range of 57 to 71 months. The PSR included a victim impact statement in which both García and Alarcón expressed their desire that Vega receive the maximum sentence authorized by law. The victims emphasized that they were confronted in García's home, that they were forced to beg for their lives, that Vega showed little respect for their lives when he fired his gun so close to them that the gunpowder burned García's face, and that the event had caused both men continuing anxiety. The PSR noted that the probation officer had not "identified any information that would warrant a departure from the guidelines." Neither party objected to the PSR.

Shortly after the start of Vega's sentencing hearing, his counsel noted that Count Two—the § 924(c) firearms charge—required a ten-year term imposed consecutively to any other term of imprisonment resulting from the charged criminal activity, and he urged the court to impose a sentence at the bottom of the Guidelines range for the remaining offenses. In response, the government pointed out that ten years was the statutory minimum for the § 924(c) charge and the court could go above it. Defense counsel, in turn, observed that the Guidelines provided for a ten-year consecutive sentence and that, if the government believed a higher sentence was warranted, it was required to give defendant advance notice. Counsel also argued that the court was obliged to give notice if it intended to go beyond the advisory Guidelines term, specifically invoking Federal Rule of Criminal Procedure 32(h).¹

The court rejected the notice argument, explaining its view that Rule 32(h) applies only to formal "departures," which are based on specific provisions of the advisory Guidelines, and not to "variances" from the Guidelines based on the sentencing criteria set out in 18 U.S.C. § 3553(a).² After additional colloquy about the adequacy of the Guidelines range in this case, including a statement from Alarcón reiterating the request that Vega receive "the greatest term possible," the court imposed a total sentence of twenty years: the ten-year mandatory minimum on the § 924(c) count (Count Two); an additional ten-year sentence on the carjacking count (Count One); and a sixty-month sentence for possessing a weapon with an obliterated serial number (Count Three), to be served concurrently with the carjacking term. The court explained that this variance from the Guidelines resulted from consideration of two of the factors listed in § 3553(a): the nature and circumstances of the offense and Vega's background. The court additionally ordered three years of supervised release. This appeal followed.

II.

A. Pretrial Identification

Vega contends that the circumstances under which the victims identified him as the perpetrator were so impermissibly suggestive as to taint the victims' subsequent identification testimony at trial, thereby denying him due process of law. See, e.g., Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (explaining that "[s]uggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous"). In particular, Vega claims that any...