United States v. Martinez-Armestica

• Decision Date: 20 January 2017
• Docket Number: No. 14-1674,14-1674
• Citation: 846 F.3d 436
• Parties: UNITED STATES of America, Appellee, v. Joseph MARTINEZ–ARMESTICA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

846 F.3d 436

UNITED STATES of America, Appellee,

v.Joseph MARTINEZ–ARMESTICA, Defendant, Appellant.

No. 14-1674

United States Court of Appeals, First Circuit.

January 20, 2017

John E. Mudd , with whom Law Offices of John E. Mudd , San Juan, PR, were on brief, for appellant.

Susan Jorgensen , Assistant United States Attorney, with whom Rosa Emilia Rodríguez–Vélez , United States Attorney, and Nelson Jose Pérez–Sosa , Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Lynch, Selya, and Lipez, Circuit Judges.

LIPEZ, Circuit Judge.

Joseph Martinez–Armestica ("Martinez") was charged with two counts of carjacking, one count of using, carrying, and brandishing a firearm during a crime of violence, and four counts of illegal possession of firearms seen in photographs on Martinez's cell phone. He pled guilty to the carjacking counts and not guilty to the others. After a three-day jury trial, Martinez was convicted on all five remaining counts and sentenced to 180 months in prison. He appeals his convictions and sentence, arguing that there was insufficient evidence for the jury to find that he brandished a real gun during the carjacking, that the trial judge erred in admitting testimony from the government's firearms expert related to the illegal possession counts, and that his sentence was unreasonable.¹ Following a careful review of his claims, we affirm.

I.

Because Martinez challenges the sufficiency of the evidence against him on the brandishing count, we state the facts in the light most favorable to the jury's verdict. United States v. Cruz–Rodriguez, 541 F.3d 19, 25 (1st Cir. 2008).

On September 25, 2012, at approximately 10:15 p.m., Zuleyka Arroyo–Melendez ("Arroyo") drove her 22–year–old niece, Stephanie Ramirez, to the Martinez Nadal train station in Puerto Rico. Ramirez had left her own SUV in the train station parking lot earlier in the day and had asked her aunt to drive her there after work so she could pick it up. Arroyo parked next to her niece's SUV, and Ramirez switched cars. Ramirez had turned her car on and was preparing to back out of her parking space when a white Toyota pulled up in the parking lot behind the two women. Two men, aged between 19 and 23 years old, also appeared behind them. One of the men, later identified as Martinez, approached Ramirez's SUV holding what the women described as a small, black pistol. He yelled at Ramirez to get out of her car and held the pistol to her head. Ramirez complied. Martinez got into Ramirez's SUV and, after heeding her pleas to throw her bag of college books to her, drove away.

Meanwhile, the second man approached Arroyo and stood approximately two feet away from her, pointing at her what was described as a second black pistol. After Martinez left, the second man got into Arroyo's SUV but, finding himself unable to turn off the emergency brake, called Arroyo over to the car. Pushing the muzzle of his pistol against her abdomen, he demanded that she lower the emergency brake handle. Arroyo later described the pistol as feeling hard and "a bit cold." She complied, but pleaded with him not to take the car and leave her stranded in the parking lot with her niece. He responded by saying that he needed the car, but he agreed to give Arroyo her house keys. He then drove away in Arroyo's SUV.

Arroyo later recognized Martinez and his accomplice in a photo she saw posted on Facebook and identified the two men to the police. When Martinez was taken into custody the police seized a cell phone from him, which was later found to contain at least four photos of Martinez with guns.

In July 2013, a grand jury returned a superseding indictment charging Martinez with two counts of carjacking and one count of brandishing a firearm during and in relation to a crime of violence. Martinez was also indicted on four counts of unlawful possession of a firearm by a convicted felon based on the photos discovered on his phone. As noted, he pled guilty to the two counts of carjacking but elected to go to trial on the other five counts. He was found guilty on all counts.

Martinez was subsequently sentenced to 71 months for each of the carjacking and illegal possession offenses, to be served concurrently. The district court also imposed a consecutive sentence of 109 months for brandishing a firearm during a crime of violence, which included a 25–month variance over the Guidelines-recommended sentence. This appeal followed.

II.

A. Sufficiency of the Evidence for Brandishing a Firearm During a Crime of Violence

Martinez argues that the evidence presented at trial was insufficient for the jury to find that he brandished a firearm during the carjacking. A conviction under 18 U.S.C. § 924(c) requires proof that the defendant wielded a "firearm," which is defined as

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

18 U.S.C. § 921(a)(3). The firearm must be "real," rather than a toy or replica, but it "need not be prove[d] to be loaded or operable." United States v. Taylor, 54 F.3d 967, 975 (1st Cir. 1995) (quoting United States v. Kirvan, 997 F.2d 963, 966 (1st Cir. 1993) ).

Martinez contends that the government failed to establish that the object in his hand was a real gun. Sufficiency of the evidence claims are reviewed de novo when, as here, they have been preserved for appeal. United States v. De León–Quiñones, 588 F.3d 748, 751 (1st Cir. 2009). We give deference to the jury's determination, however, viewing the evidence in the light most favorable to the government and asking "whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Roberson, 459 F.3d 39, 47 (1st Cir. 2006) (quoting United States v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005) ).

At trial, both Arroyo and Ramirez testified about Martinez's use of a gun during the carjacking. Martinez argues that because neither woman actually stated that the gun was real, their testimony about the gun was not specific enough to support a jury finding to that effect. He also attempts to cast doubt on their ability to adequately see the object in his hand, asserting that the parking lot was not well lit and that Ramirez could see only part of the gun.

Martinez's attempt to discredit the evidence before the jury is unavailing. Both women described the object as a "black pistol." Arroyo also testified that she knew the difference between a pistol and a revolver, permitting the jury to infer that she had some familiarity with firearms.² Neither woman referred to the gun in Martinez's hand in any way that would indicate that it was not real. See United States v. Cruz–Diaz, 550 F.3d 169, 173 (1st Cir. 2008) (finding that the totality of evidence, including the lack of an indication in the witness testimony that the "pistol" described by the witnesses was fake, supported an inference by the jury that the defendant used a real gun). Moreover, the two witnesses' reactions to the gun provide further circumstantial evidence that they believed it to be real: both women gave up their cars and keys in response to the threats of Martinez and his accomplice, and Arroyo testified that she thought Martinez was going to kill her niece. See De León–Quiñones, 588 F.3d at 752 (finding sufficient evidence for a § 924(c) conviction based, in part, upon evidence of the victims' reaction indicating that they believed the defendant's gun was real).

Nor is there any reason to doubt the witnesses' testimony that they could see the gun. Both Arroyo and Ramirez pointed out that the parking lot was lit, and Arroyo noted that she had parked her SUV directly next to a lamp post. Ramirez also testified that she could see clearly during the episode. Moreover, Arroyo, who observed the gun from only 2 to 3 feet away while Martinez pointed it at her niece, testified that she was paying close attention because "I thought he was going to kill her."

Martinez also attempts a more general challenge to Arroyo and Ramirez's testimony, arguing that the testimony of a lay witness who lacks experience with guns is categorically insufficient to prove that an object is a real gun. Instead, he argues, the testimony of an expert witness is required, or, as in Roberson, at least the testimony of a witness who handled the object at issue and has some familiarity with firearms. See 459 F.3d at 47. Along with other circuits, we have squarely rejected the argument that such expert testimony is necessary. See Taylor, 54 F.3d at 975 ("lay opinion testimony may be employed to propel a finding that an object is in fact a real gun"); see also, e.g., United States v. Lawson, 810 F.3d 1032, 1040 (7th Cir. 2016) ; United States v. Stenger, 605 F.3d 492, 504 (8th Cir. 2010). Furthermore, a witness need not be familiar with firearms, nor have held the weapon to testify that it was real. See United States v. Jones, 16 F.3d 487, 490–91 (2d Cir. 1994) (finding testimony of eyewitnesses who were "not familiar with weapons" sufficient to sustain conviction under § 924(c) ); Parker v. United States, 801 F.2d 1382, 1383–85 (D.C. Cir. 1986) (rejecting the contention that eyewitness testimony will not suffice to establish that an object is a gun unless "it [was] given by persons knowledgeable about firearms who had an opportunity to examine the weapon closely").

Martinez argues that these precedents should be reevaluated in light of the 2000 amendments to Rule 701 of the Federal Rules of Evidence, which he claims were intended to "mak[e] it much more difficult for laypersons to testify as to issues better left for experts." That argument, which was limited to one sentence of appellant's brief, was raised in such a perfunctory manner that we...