United States v. López-Soto

• Decision Date: 21 May 2020
• Docket Number: 17-1679,17-1668,17-1680,Nos. 17-1663,s. 17-1663
• Parties: UNITED STATES, Appellee, v. Carlos Enrique LÓPEZ-SOTO, a/k/a Chemito, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

960 F.3d 1

UNITED STATES, Appellee,

v.Carlos Enrique LÓPEZ-SOTO, a/k/a Chemito, Defendant, Appellant.

Nos. 17-1663

17-1668

17-1679

17-1680

United States Court of Appeals, First Circuit.

May 21, 2020

German A. Rieckehoff, with whom Carlos Enrique López-Soto, pro se, was on brief, for appellant.

Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, were on brief, for appellee.

Before Barron, Lipez, and Dyk,^* Circuit Judges.

DYK, Circuit Judge.

Carlos Enrique López-Soto appeals convictions and sentences imposed by the United States District Court for the District of Puerto Rico for three Hobbs Act robberies under 18 U.S.C. § 1951, two counts of brandishing a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii), two counts of possession of a firearm by a convicted felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), one count of possession of ammunition by a convicted felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and conspiring to commit a Racketeer Influenced and Corrupt Organizations Act ("RICO") violation under 18 U.S.C. §§ 1962(d) and 1963(a). We affirm the convictions and sentences except that we remand for the limited purpose of reducing López-Soto’s sentence for the Hobbs Act and RICO counts to the 240-month statutory maximum.

I.

López-Soto was alleged to be part of a group -- consisting of himself, Luis Ruiz-Santiago ("Ruiz"), Roberto García-Santiago ("García"), and Jesús Ramírez-Cotto -- that conducted a string of robberies in 2014. Two robberies were conducted with García (on May 23, 2014 and June 3, 2014), and one was with García and Ruiz (on May 17, 2014).

On October 22, 2014, a Grand Jury returned a superseding indictment in Case No. 14-cr-415 charging López-Soto with: (1) Hobbs Act robbery under 18 U.S.C. §§ 1951 and 2 (Count One); (2) brandishing a firearm during and in relation to a crime of violence under 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count Two); (3) possession of a firearm by a convicted felon under 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2 (Count Three); and (4) possession of ammunition by a convicted felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Four). The same day, a Grand Jury returned an indictment charging López-Soto with: (1) conspiring to commit a Racketeer Influenced and Corrupt Organizations Act ("RICO") violation under 18 U.S.C. § 1962(d) (Count One); (2) Hobbs Act robberies under 18 U.S.C. §§ 1951 and 2 (Counts Fourteen and Fifteen); (3) brandishing a firearm in relation to a crime of violence under 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count Sixteen); and (4) possession of a firearm by a convicted felon under 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2 (Count Seventeen). All were aiding and abetting charges except for the RICO charge and the charge for possession of ammunition. The two cases were consolidated and both were tried together starting on December 1, 2016.

López-Soto was represented by counsel until the time of trial, but he represented himself at trial. García and Ruiz cooperated with the government and testified as to López-Soto's participation in the robberies and other offenses for which he was charged. The government also presented evidence (1) of video recordings of the robberies, one of which appeared to show López-Soto at the scene; (2) that López-Soto was arrested wearing a striped shirt similar to the shirt worn by one of the perpetrators of a May 23, 2014, robbery, and that ammunition seized from López-Soto was of the same caliber as that of the revolver used in the robberies; (3) that López-Soto owned and was arrested in a burgundy-colored Dodge Durango, which matched the vehicle used in the robberies, and that, in López-Soto's presence, his colleagues had attempted to spray paint the Durango black a day after the June 3, 2014 robbery; and (4) that boxes of cell phones and accessories were seized by the government from López-Soto's girlfriend's apartment, including a box with the label of a cell phone store that had been robbed.

The jury convicted López-Soto on all counts. The court sentenced López-Soto to 360 months as to Count One in Case No. 14-cr-415, and as to Counts One, Fourteen, and Fifteen in Case No. 14-cr-637, to be served concurrently with each other but consecutively to an imprisonment term of 84 months as to Counts Two, Three, and Four in Case No. 14-cr-415, and Count Seventeen in Case No. 14-cr-637, and consecutively to 300 months of imprisonment as to Count Sixteen in Case No. 14-cr-637.¹ The sentence results in a total imprisonment term of 744 months (62 years).

López-Soto appeals. He filed two sets of briefs: an opening and a reply brief prepared by his counsel, and a pro se brief. We have jurisdiction under 28 U.S.C. § 1291 to review the final decisions of the district court, and under 18 U.S.C. § 3742 to review the district court's sentence.

II.

A.

We first address López-Soto's contention that the district court improperly instructed the jury as to the medical care to which cooperating co-defendant Ruiz was entitled. López-Soto also contends that, in providing this instruction, the judge indicated bias. The instruction was given during Ruiz's testimony. Some background is useful.

Ruiz was arrested on October 29, 2014, and, like López-Soto, charged with Hobbs Act robbery, RICO, and firearm-related offenses. On November 10, 2014, at his arraignment, Ruiz pled not guilty.

However, on April 6, 2015, Ruiz signed a plea agreement with the government. Ruiz agreed to plead guilty to a RICO violation and the carrying of a firearm during and in relation to a crime of violence, and the government agreed to dismiss all other charges. As part of the plea agreement, Ruiz stipulated that he led a criminal organization that committed robberies, and listed fourteen robberies conducted by the organization between November 12, 2013, and June 3, 2014. Ruiz further stated in the plea agreement that López-Soto took part in five of these robberies, which occurred on or about May 4, May 17, May 23, and June 3, all in 2014. On June 11, 2015, the district court accepted Ruiz's guilty plea.

On June 30, 2015, about 18 months before López-Soto's trial, Ruiz, acting pro se, filed a motion to withdraw his guilty plea. In a three-page handwritten document, Ruiz asserted that he pled guilty based on his counsel's representation that he would not receive medical treatment unless he accepted the government's plea agreement. Ruiz claimed that because his medical condition at the time was "critical" -- he continued to suffer from being shot in another incident fourteen years earlier -- his guilty plea was involuntary. Specifically, Ruiz asserted that he only accepted the plea offer because his attorney told him that he would not get the medical treatment he needed otherwise. He requested that he be allowed to withdraw his plea and that he be assigned new counsel for trial. The district court denied Ruiz's motion, explaining that "[Ruiz's] plea has been accepted by the court. More so, the present motion [to withdraw his guilty plea] prepared by a jailhouse lawyer, and not [Ruiz's] counsel ..., is perfunctory and generic."

Thereafter, Ruiz appeared as a government witness at López-Soto's trial, testifying as to López-Soto's involvement in the planning and execution of the robberies for which he was charged.

López-Soto sought to attack Ruiz's trial testimony by showing that Ruiz believed he would not receive medical care for his gunshot injuries unless Ruiz agreed to the government's plea deal. López-Soto asked Ruiz:

And it would be accurate to say that you also express in that document to this Court [i.e., Ruiz's motion to withdraw his guilty plea], sir, that you were going to accept this offer [i.e., the plea agreement] due to the pain and suffering that you have to deal with in the facility at MDC Guaynabo due to the fact that you were shot several times and went through so many surgeries and have a critical health? Yes or no.

Before Ruiz answered, the court called for a sidebar. At sidebar, the court stated:

Now I'm forced to give an instruction. And the instruction is that he's entitled to that [i.e., medical treatment], plea or not plea. Because that is a right that the defendant has by law, plea or not plea; the right to receive medical treatment.

Then, in open court, the court instructed the jury ("the medical care instruction") over López-Soto's objections, stating:

THE COURT: So the jury is not confused, all defendants, plea or not plea, are entitled by law to the following: To provide the defendant with the needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. All defendants.

All. All of them are entitled to that, plea or not plea. So if you want to continue under this chain of thought, he is entitled medical care. Period. After he leaves MDC Guaynabo, he's entitled to that. In fact, he may have received already some of that treatment if he's living outside MDC Guaynabo.

MR. LÓPEZ-SOTO: But, Your Honor.

THE COURT: Don't argue with me. That's the law. So that they're not confused, they are getting the law now.

MR. LÓPEZ-SOTO: Okay, Your Honor. But I have an objection to that, Your Honor.

THE COURT: You may have many objections, but you asked those questions, and you're leaving this jury in doubt whether or not the matter was going to be accepted or not based strictly on a quid pro quo of the medical treatment. When he, by law, is entitled that. By law. It doesn't go with the plea agreement. You won't find that in the plea agreement either. It's not there. Because he's entitled by law to receive that. You decided to ask these questions. And now the jury was confused thinking that that would be a quid pro quo. That cannot be a quid pro quo.

Keep on asking [your questions].

After this instruction, in response to...