United States v. Lara, No. 17-1957

• Decision Date: 12 August 2020
• Docket Number: No. 17-1957, No. 17-1964
• Citation: 970 F.3d 68
• Parties: UNITED STATES, Appellee, v. Victor LARA, Jr., Defendant, Appellant. United States, Appellee, v. Kourtney Williams, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

970 F.3d 68

UNITED STATES, Appellee,

v.Victor LARA, Jr., Defendant, Appellant.

United States, Appellee,

v.Kourtney Williams, Defendant, Appellant.

No. 17-1957

No. 17-1964

United States Court of Appeals, First Circuit.

August 12, 2020

Luke S. Rioux for Victor Lara, Jr.

Jessica LaClair, West Chesterfield, NH, for Kourtney Williams.

Benjamin M. Block, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

Before Thompson, Stahl, and Barron, Circuit Judges.

BARRON, Circuit Judge.

In these consolidated appeals, Victor Lara and Kourtney Williams challenge various federal convictions -- and the resulting sentence -- that each received in connection with a 2014 robbery in Maine. We affirm their convictions, except for the one that each received for violating 18 U.S.C. § 924(c), which makes it a crime to use a firearm "during and in relation to" a "crime of violence," id. § 924(c)(1)(A). The reversal of those convictions requires that we also vacate Lara's and Williams's sentences.

I.

Lara was arrested and detained on state charges by local law enforcement authorities in Maine on August 6, 2014, and so, too, was Williams days later on August 9. The arrests were made in connection with the robbery that year in Minot, Maine, of the residence of Ross Tardif, an alleged dealer of oxycodone and other controlled substances.

A federal complaint in connection with the robbery of Tardif's residence was filed in the District of Maine against Lara on March 18, 2015, at which point the state charges against him in connection with the robbery were dismissed and he was taken into federal custody. Then, on April 7, 2015, a federal grand jury in the District of Maine indicted both him and Williams, as well as a third person, Ishmael Douglas, on federal criminal charges arising out the robbery.

The federal indictment charged Douglas, Lara, and Williams each with one count of conspiracy to possess with intent to distribute controlled substances -- specifically, oxycodone -- under 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C) ; one count of conspiracy to commit Hobbs Act robbery under 18 U.S.C. § 1951(a) ; and one count of use of a firearm during and in relation to a "crime of violence" under 18 U.S.C. § 924(c)(1)(A)(ii). The federal indictment also charged Williams and Douglas each with one count of possession of a firearm by a felon under 18 U.S.C. §§ 922(g)(1) and 924(e).

Over the course of the next roughly eighteen months, Lara, Williams, and Douglas filed various pre-trial motions in the District Court. Then, in August of 2016, Douglas entered a conditional guilty plea to the counts for conspiracy to commit Hobbs Act robbery and for violating § 924(c), and the remaining charges against him were dismissed. Lara and Williams, however, proceeded to trial, and the jury in their case returned its verdict in September of 2016. The jury found them not guilty of conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C), but guilty on the other counts. The District Court entered judgments of convictions against both Lara and Williams and proceeded to sentencing.

The District Court sentenced Lara to 100 months of imprisonment for his conviction for conspiracy to commit Hobbs Act robbery and eighty-four months of imprisonment for his conviction for violating § 924(c), with each of these sentences to run consecutively. Lara thus received a total prison sentence of 184 months. The District Court sentenced Williams to a 100-month prison sentence for his conviction for conspiracy to commit Hobbs Act robbery, which was to run concurrently with his fifty-month prison sentence for his conviction for being a felon in possession of a firearm and consecutively to his eighty-four-month prison sentence for his conviction for violating § 924(c). Thus, like Lara, Williams also received a 184-month prison sentence.

Both defendants filed timely appeals, which were consolidated for our review.

II.

We start with the challenges that Lara and Williams each bring to their convictions for use of a firearm "during and in relation" to a "crime of violence." 18 U.S.C. § 924(c)(1)(A). The alleged "crime of violence" was conspiracy to commit Hobbs Act robbery. At the time that Lara and Williams were each convicted of this offense, the applicable definition of a "crime of violence" contained both a "force clause" and a "residual clause." See id. § 924(c)(3) ; see also United States v. Cruz-Rivera, 904 F.3d 63, 65 (1st Cir. 2018). The latter clause denominated as a "crime of violence" a felony "that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3)(B).¹

After the parties filed their initial briefs to us in these then-pending consolidated appeals, however, the United States Supreme Court decided United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). In that case, the Court struck down the "residual clause" as unconstitutionally vague. See id. at 2336. We requested supplemental briefing to address Davis's impact, if any, on Williams's and Lara's § 924(c) convictions. In their supplemental briefs, Lara and Williams argue that in consequence of Davis, conspiracy to commit Hobbs Act robbery does not qualify as a "crime of violence" under § 924(c), because what remains of the "crime of violence" definition does not encompass that offense. The government agrees. We thus reverse the conviction pursuant to § 924(c) that Lara and Williams each received.

III.

We next consider a set of challenges based on various instructional errors that Williams brings to his stand-alone conviction for conspiracy to commit Hobbs Act robbery. Lara did not make these challenges in his opening brief to us, but he purports to join in them through his reply brief.

We assume Lara has not waived these challenges by raising them only in his reply brief. See United States v. Mkhsian, 5 F.3d 1306, 1310 n.2 (9th Cir. 1993). But see United States v. Leoner-Aguirre, 939 F.3d 310, 319 n.11 (1st Cir. 2019) (finding arguments raised for the first time in a reply brief waived). For ease of exposition, though, we describe these challenges as if they are Williams's alone. We do so in part because Lara purported to join in them merely in one sentence in his reply brief. He thus gives no reason as to why his challenges do not rise and fall with Williams's arguments, even if some of them were waived below by representations that Williams's counsel made to the District Court while representing his client alone.

A.

We start with the contention that the District Court incorrectly instructed the jury that it only needed to find that Williams intended to obtain "drugs or drug trafficking proceeds" to find him guilty of conspiracy to commit Hobbs Act robbery. Williams points out that the indictment charged him with having "knowingly and intentionally conspired ... to obstruct, delay and affect commerce and the movement of articles in commerce, namely illegal drugs and drug trafficking proceeds, by robbery" but then added that, "[s]pecifically, the defendants agreed together and with others to steal Percocet

(oxycodone) pills and any proceeds from the trafficking of such illegal drugs." Williams contends that the instruction constructively amended the indictment by describing the object of the charged conspiracy too generally. See

United States v. Pierre, 484 F.3d 75, 81-82 (1st Cir. 2007) (discussing constructive amendments).

The problem for Williams is that, in a colloquy that preceded this instruction, the government proposed that the District Court use the word "property" to describe the conspiracy's object, and Williams's counsel proposed instead that the District Court use the phrase "drugs or drug proceeds." Thus, Williams targets language in the instruction that is not materially different from the language that his counsel requested. Accordingly, the challenge has been waived. See United States v. Acevedo, 882 F.3d 251, 264 (1st Cir. 2018).

B.

Williams next challenges the response that the District Court gave to a question that the jury asked during deliberations about this same count. The jury's question related to a theory that Williams had put forward at trial concerning a mismatch between what the evidence at trial had showed to be the object of the conspiracy and the object of the conspiracy charged in the indictment. Specifically, Williams had argued at trial that the evidence showed that the object of the conspiracy was inheritance money belonging to Tardif, while the indictment described its object as "Percocet

(oxycodone) pills and any proceeds from the trafficking of such illegal drugs."

The jury's question was: "[C]an we convict on just conspiracy, without convicting specifically under [H]obbs [A]ct [r]obbery for oxycodone pills and proceeds (question of inheritance as motive)?" The District Court responded: "[Y]ou cannot convict either defendant under [this count] unless you find that the defendant was part of [a] conspiracy that intended to obtain drugs or drug trafficking proceeds ... by robbery."

Williams does not dispute that the District Court's response correctly instructed the jury that it could not find him guilty on this count if the object of the conspiracy did not concern "drugs" at all. But, he contends, the instruction still wrongly instructed the jury, because it instructed the jury that it could find him guilty of this count without finding that the conspiracy's object concerned "Percocet

(oxycodone)" specifically. By describing the conspiracy's object as generally as the answer to the jury's question did, Williams argues, the District Court constructively amended the indictment. See

Pierre, 484 F.3d at 81-82.

We agree with the government that here, too, waiver stands in the way of Williams's challenge. See Acevedo, 882 F.3d...