United States v. Almonte-Núñez, No. 15-2070

• Decision Date: 18 June 2020
• Docket Number: No. 15-2070
• Parties: UNITED STATES of America, Appellee, v. Edwin Omar ALMONTE-NÚÑEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

963 F.3d 58

UNITED STATES of America, Appellee,

v.Edwin Omar ALMONTE-NÚÑEZ, Defendant-Appellant.

No. 15-2070

United States Court of Appeals, First Circuit.

June 18, 2020

Michael M. Brownlee, with whom The Brownlee Law Firm, P.A. was on brief, Orlando, FL, for appellant.

John P. Taddei, Attorney, Criminal Division, Appellate Section, U.S. Department of Justice, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, San Juan, PR, for appellee.

Before Torruella, Dyk,^* and Thompson, Circuit Judges.

DYK, Circuit Judge.

Edwin Omar Almonte-Núñez appeals convictions and sentences imposed by the United States District Court for the District of Puerto Rico for robbing an individual of a United States passport in violation of 18 U.S.C. § 2112, brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and possessing a firearm in violation of 18 U.S.C. § 922(g)(1) (possession by a convicted felon). We affirm.

I.

This case returns to this court after resentencing following the decision in United States v. Almonte-Núñez ("Almonte I"), 771 F.3d 84 (1st Cir. 2014).

As recounted in the earlier decision, on September 30, 2011, Almonte unlawfully entered the residence of a 78-year-old widow. During this home invasion, Almonte brandished and aimed towards the victim a loaded pistol, threatened to shoot her, twice struck her in the face with the pistol, and kicked her after she fell to the ground. The victim suffered grievous injuries, including the loss of her right eye. Almonte was thereafter arrested by Puerto Rico police officers after a high-speed car chase.

As relevant to this appeal, the Commonwealth of Puerto Rico court charged Almonte with two counts of violating the Puerto Rico Weapons Act: carrying and using a firearm without a license ("Commonwealth count 1") and discharging or pointing a firearm at another person ("Commonwealth count 2"). Almonte pled guilty to those charges and on June 6, 2012, was sentenced to ten years and two years of imprisonment for each count, respectively, to be served consecutively.

Thereafter, a federal grand jury returned an indictment charging Almonte with robbing the victim of her United States passport in violation of 18 U.S.C. § 2112 ("federal count 1"), brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) ("federal count 2"), and possessing a firearm in violation of 18 U.S.C. § 922(g)(1) (possession by a convicted felon) ("federal count 3"). On December 12, 2012, Almonte pled guilty to his federal charges. On June 14, 2013, the district court sentenced him to 150 months for federal counts 1 and 3, to be served concurrently, and 84 months for federal count 2, to be served consecutively with his sentence for federal counts 1 and 3.

Almonte appealed his federal sentence, arguing that his 150-month sentence for federal count 3 exceeded the statutory maximum. Almonte I, 771 F.3d at 91. This court held that Almonte's sentence "constituted clear and obvious error" because it exceeded the "maximum level of imprisonment [of 120 months] established by Congress" under 18 U.S.C. § 924(a)(2), and remanded to the district court with directions "to enter a modified sentence of 120 months on [federal count 3]." Id. at 91–92.

On August 21, 2015, the district court conducted a sentencing hearing in accordance with the remand order. At the resentencing hearing, Almonte twice expressed a concern that he was not "being adequately represented [by] [his] counsel," because of his belief that he was supposed to be resentenced for time served. App'x 55, 59. Almonte's counsel explained that there was "nothing in [the remand order] that would lea[d] one to believe that [he was supposed to be sentenced for time served]." App'x 57. The district court stated that the issue was waived because Almonte had not raised it in the first appeal. The district court modified Almonte's sentence for federal count 3 to 120 months and ordered that Almonte's federal sentence be served concurrently with the sentence imposed by the Commonwealth.

Almonte now appeals the sentence imposed at his resentencing. In his opening brief, he argues that (1) the district court failed to inquire into his request for substitution of new counsel and (2) his conviction for federal count 1 under 18 U.S.C. § 2112 did not constitute a predicate "crime of violence" under 18 U.S.C. § 924(c)(3)(A) for his conviction for federal count 2 under 18 U.S.C. § 924(c)(1)(A)(ii) and that § 924(c)(3)(B) was unconstitutionally vague under the Supreme Court's decision in Johnson v. United States, ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). Before the government filed its responsive brief, the Supreme Court decided Puerto Rico v. Sánchez Valle, ––– U.S. ––––, 136 S. Ct. 1863, 195 L.Ed.2d 179 (2016), holding that under the Double Jeopardy Clause of the Fifth Amendment, the Commonwealth of Puerto Rico and the United States were not separate sovereigns. Id. at 1876. This court ordered the parties to file supplemental briefs addressing whether Almonte's federal convictions were barred by the Double Jeopardy Clause under Sánchez Valle. After briefing had concluded, the Supreme Court decided United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), which held that 18 U.S.C. § 924(c)(3)(B) ("the residual clause") was unconstitutionally vague. Id. at 2336. This court again ordered supplemental briefing from the parties, this time to address the effect of Davis on Almonte's conviction for federal count 2.

II.

A.

The government urges that Almonte's arguments are barred by the law of the case doctrine. "Writ large, the law of the case doctrine 'posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.' " United States v. Matthews, 643 F.3d 9, 12 (1st Cir. 2011) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) ). "[A] legal decision made at one stage of a civil or criminal case, unchallenged in a subsequent appeal despite the existence of ample opportunity to do so, becomes the law of the case for future stages of the same litigation." United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993). This doctrine "bars a party from resurrecting issues that either were, or could have been, decided on an earlier appeal." Matthews, 643 F.3d at 12–13.

"The law of the case doctrine has two branches. The first branch--known colloquially as the mandate rule--'prevents relitigation in the trial court of matters that were explicitly or implicitly decided by an earlier appellate decision in the same case.' " Id. at 13 (emphasis added) (quoting United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004) ). "The second branch of the doctrine binds a 'successor appellate panel in a second appeal in the same case' to honor fully the original decision" and, with some limited exceptions, "contemplates that a legal decision made at one stage of a criminal or civil proceeding should remain the law of that case throughout the litigation, unless and until the decision is modified or overruled by a higher court." Id. (quoting Moran, 393 F.3d at 7 ). Under this doctrine, "[the appellate court] need not and do[es] not consider a new contention that could have been but was not raised on the prior appeal." AngioDynamics, Inc. v. Biolitec AG, 823 F.3d 1, 4 (1st Cir. 2016) (quoting United States v. Arreguin, 735 F.3d 1168, 1178 (9th Cir. 2013) ); see also M. v. Falmouth Sch. Dep't, 875 F.3d 75, 78 (1st Cir. 2017) ("The district court correctly concluded that ... introducing a claim that could have been raised [in the previous appeal] would be inappropriate.").

The government argues that both the district court and this court are bound by the law of the case because "the sole purpose of the remand was to impose a 120-month sentence for [federal count 3] so that it would not exceed the statutory maximum for that [c]ount." Government's Br. 9–10 (citing Almonte I, 771 F.3d at 92–93 ). The government suggests that unless this court "expressly directed otherwise, [the] district court [could] only consider new arguments or facts on remand that [were] made relevant by the Court of Appeals decision." Id. at 10 (citing United States v. Cruzado-Laureano, 527 F.3d 231, 235 (1st Cir. 2008) ).

The government relies on United States v. Santiago-Reyes, 877 F.3d 447 (1st Cir. 2017), which stated that the mandate rule "generally requires that a district court conform with the remand order from an appellate court." Id. at 450 (quoting United States v. Ticchiarelli, 171 F.3d 24, 31 (1st Cir. 1999) ). However, Santiago-Reyes did not purport to overturn the longstanding First Circuit precedent that "[the mandate] rule cannot apply" to "issue[s] [that] could not have been raised on the appeal from the original sentence." United States v. Bryant, 643 F.3d 28, 34 (1st Cir. 2011). "Whatever [the mandate rule] may preclude as to arguments that were made and lost or should have been made but were not, it can hardly extend to arguments that a party could not reasonably have been expected to make in the prior sentencing." Id. at 33–34 ; see also Matthews, 643 F.3d at 14 ; United States v. García-Ortiz, 904 F.3d 102, 106 (1st Cir. 2018).

B.

Almonte's first argument is that the district court erred when it failed to inquire into his request for substitution of counsel. The government urges that Almonte's argument is barred by the mandate rule. We conclude that Almonte's argument is not barred because it concerns an issue that arose for the first time in the resentencing hearing. See Bryant, 643 F.3d at 34.

We nonetheless conclude that the district court did not abuse its discretion in denying Almonte's request for substitution of counsel. When reviewing a district...