United States Court of Appeals For the First Circuit
No. 21-1214
ÁNGEL FORTEZA-GARCÍA,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Raúl M. Arias-Marxuach, U.S. District Judge]
Before
Barron, Chief Judge, Montecalvo and Aframe, Circuit Judges.
Franco L. Pérez-Redondo, with whom Rachel Brill, Federal Public Defender, District of Puerto Rico, Héctor L. Ramos-Vega, Interim Federal Public Defender, District of Puerto Rico, and Kevin E. Lerman, Research and Writing Attorney, were on brief, for appellant. Joshua K. Handell, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Ricardo A. Imbert-Fernández, Assistant United States Attorney, were on brief, for appellee. March 3, 2025 BARRON, Chief Judge. Ángel Forteza-García appeals the
District Court's denial of his 28 U.S.C. § 2255 petition for
post-conviction relief, in which he seeks relief from his
conviction under 18 U.S.C. § 924(j). That provision makes it a
crime to "cause the death of a person through the use of a firearm"
in the course of violating 18 U.S.C. § 924(c), which in turn
criminalizes using or carrying a firearm "during and in relation
to any crime of violence." Forteza based his petition on United
States v. Davis, 588 U.S. 445 (2019), which held unconstitutionally
vague a portion of the definition of a "crime of violence" in
§ 924(c). Forteza contends that, in consequence of Davis, the
predicate conviction for his § 924(j) offense does not qualify as
a "crime of violence," and thus that his conviction for that
offense is unconstitutional. We disagree and affirm.
I.
Section 924(c) makes it a crime to use or carry a firearm
"during and in relation to any crime of violence or drug
trafficking crime . . . for which the [perpetrator] may be
prosecuted in a court of the United States," or to possess a
firearm in furtherance of any such crime of violence or drug
trafficking crime. 18 U.S.C. § 924(c)(1)(A). Section 924(j)
criminalizes anyone who, in the course of committing a violation
of § 924(c), "causes the death of a person through the use of a
firearm," with different penalties depending on whether that
- 3 - killing would qualify as murder or manslaughter under federal law.
Id. § 924(j).
So, to prove that a defendant has committed a violation
of § 924(j), the government must prove not only that a killing
occurred through the use of a firearm, but also that the killing
occurred in the course of the defendant committing a "crime of
violence or drug trafficking crime" within the meaning of § 924(c).
The relevant definition of "crime of violence" for § 924(c) is set
forth in § 924(c)(3). It provides that such a crime includes any
felony offense that, under what is known as the force clause, "has
as an element the use, attempted use, or threatened use of physical
force against the person or property of another" or that, under
what is known as the residual clause, "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."
Id. § 924(c)(3).
Forteza's § 924(j) conviction stems from an indictment
that was handed up in the District of Puerto Rico in March 2003.
The indictment charged him with five counts, though only two are
relevant to this appeal.
The first relevant count ("Count One") charged Forteza
with "aiding and abetting" a violation of 18 U.S.C. § 2114(a).
Although often referred to as the federal mail robbery statute
because it criminalizes the robbery of custodians of United States
- 4 - mail, § 2114(a) also criminalizes the robbery of any person who
has "lawful charge" of "any money or other property of the United
States." 18 U.S.C. § 2114(a); see Garcia v. United States, 469
U.S. 70, 72-73 (1984). The violation was alleged to have involved
the assault of a government informant, who possessed money provided
by the government for the purpose of effecting a controlled
purchase of a firearm, with the intent to rob him. This count
further alleged that the victim of the assault was "wounded" and
his life was "put . . . in jeopardy" when he was shot several times
and ultimately died.
The other count that is relevant to this appeal ("Count
Three") charged Forteza with "aiding and abetting" a violation of
§ 924(j). It did so by alleging that the violation of § 2114(a)
described in Count One was committed by the use or carrying of a
firearm during the incident, and that "in the course of that crime
of violence," the victim was "unlawfully killed . . . through the
use of a firearm."
Forteza pleaded guilty in September 2003 only to Count
Three, which had charged him with the § 924(j) offense. In
exchange for his guilty plea, the government agreed to drop the
remaining four charges -- including the § 2114(a) charge -- and to
recommend a sentence below the maximum term authorized for a
violation of § 924(j). Forteza was then sentenced to 324 months
in prison, followed by five years of supervised release.
- 5 - Forteza unsuccessfully appealed his conviction and
sentence. United States v. Fortez[a]-García, Nos. 04-1215, 04-
1398, 04-1216, 04-2458, 2006 WL 4399664 (1st Cir. Sept. 8, 2006).
He then filed a petition for post-conviction relief under 28 U.S.C.
§ 2255 in the District of Puerto Rico in 2006.
The petition alleged that Forteza's conviction and
sentence were unconstitutional due to prosecutorial and judicial
misconduct and his having received ineffective assistance of
counsel. The petition was denied. Forteza does not appear to
have appealed that ruling.
In 2017, however, Forteza filed an application for
permission to file a second petition for post-conviction relief
under § 2255. He did so on the ground that his § 924(j) conviction
was unconstitutional under intervening precedent of the Supreme
Court of the United States in Davis, which was decided in 2019.
There, the Court held that the portion of § 924(c)(3)'s "crime of
violence" definition which encompassed any 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" was unconstitutionally vague. Davis, 588
U.S. at 470.
This Court granted that application in 2020. Forteza
thereafter filed the petition that is at issue in this appeal.
- 6 - Forteza's petition alleges that, in consequence of
Davis, his § 2114(a) offense can only properly support his § 924(j)
conviction if it qualifies as a "crime of violence" under
§ 924(c)(3)(A)'s force clause. But, the petition further alleges,
that offense does not so qualify, because § 2114(a) does not have
"as an element the use, attempted use, or threatened use of
physical force against the person or property of another" that is
required under § 924(c)(3)(A).
The District Court rejected this argument on the ground
that the § 2114(a) offense of which Forteza had been convicted
does have as an element the use of force contemplated by
§ 924(c)(3)(A). Forteza-García v. United States, No. 20-1145,
2021 WL 784875, at *6 (D.P.R. Feb. 26, 2021). In so ruling, the
District Court also noted that any argument that Forteza's
predicate offense would not so qualify under the force clause
because he had been an accomplice to that offense, rather than a
principal, was foreclosed by binding First Circuit precedent. Id.
Finally, the District Court denied Forteza a certificate of
appealability (COA) on his claim. Id.
Forteza requested a COA from this Court. We granted the
request with respect to his claim that his § 924(j) conviction was
unconstitutional under Davis.
- 7 - II.
"When reviewing a district court's denial of a § 2255
petition, we review the district court's legal conclusions de novo
and any factual findings for clear error." Lassend v. United
States, 898 F.3d 115, 122 (1st Cir. 2018) (citation omitted).
"The question of whether an offense qualifies as a crime of
violence is a quintessentially legal one[.]" United States v.
Martinez, 762 F.3d 127, 133 (1st Cir. 2014) (citation omitted).
The question of which offense serves as the defendant's purported
predicate offense under the categorical approach, however, is a
question of fact. Pereida v. Wilkinson, 592 U.S. 224, 238 (2021).
Because this is a question of fact that we review for clear error,
we will only disturb the District Court's findings if, after
reviewing the whole record, we are left with "a strong, unyielding
belief that a mistake has been made." See United States v.
Fitzpatrick, 67 F.4th 497, 502 (1st Cir. 2023) (quoting United
States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)).
III.
Forteza agrees that he can succeed on his Davis-based
challenge to the denial of his petition only if he can demonstrate
that the § 2114(a) offense underlying his § 924(j) conviction does
not have "as an element the use, attempted use, or threatened use
of physical force against the person or property of another." 18
U.S.C. § 924(c)(3); see Mathis v. United States, 579 U.S. 500, 504
- 8 - (2016); United States v. Taylor, 848 F.3d 476, 491 (1st Cir. 2017);
see also United States v. Collymore, 61 F.4th 295, 297 (2d Cir.
2023) (explaining that "because an element of an offense under
section 924(j)(1) is that the defendant was 'in the course of a
violation of [§ 924(c)],'" a predicate that does not qualify for
the purposes of § 924(c) cannot qualify as a predicate for the
purposes of § 924(j)). But although Forteza contends that he can
demonstrate just that, we conclude that he has failed to do so.
A.
Section 2114(a)1 provides as follows:
(a) Assault.--A person who assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs or attempts to rob any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned not more than twenty-five years. 18 U.S.C. § 2114(a).
The parties agree that § 2114(a) sets out at least two
separate offenses -- a simple form of the offense and an aggravated
1 Section 2114 also contains a second provision, subsection (b), but no party contends that this subsection was the basis of Forteza's § 2114 offense.
- 9 - form of it. Taylor, 848 F.3d at 492 (explaining that statutes
which list multiple elements in the alternative are "divisible"
into separate offenses under the categorical approach, meaning
that some forms of the offense may have as an element the requisite
force while other forms of the offense may not). The parties'
agreement, however, ends there with respect to the nature and
number of offenses that § 2114 delineates.
As Forteza sees it, the text from § 2114(a) that is
quoted above sets out only two offenses. The first offense, in
his view, is a single, indivisible, simple variant of a § 2114(a)
offense, which is defined only by the text that precedes the
semicolon in that statute. The second offense, in his view, is
also a single, indivisible offense, but it is defined by all the
text following the semicolon, which sets forth an aggravated
variant of the § 2114(a) offense. As a result, he contends that,
although the aggravated form of the § 2114(a) offense can be
committed by wounding or placing the life of a custodian of federal
property in jeopardy in the course of committing simple § 2114(a),
it also can be committed by committing the simple form of the
§ 2114(a) offense more than once. Forteza then argues that,
because the simple form of mail robbery set forth in § 2114(a) can
be committed without using the force required under § 924(c)(3),
that § 2114(a) offense does not qualify as a "crime of violence"
under the definition of a "crime of violence" that provision sets
- 10 - forth. And he goes on to argue that it follows that, because the
aggravated variant of the § 2114(a) offense can be committed by
merely committing the simple variant of the § 2114(a) offense
twice, the aggravated form of the § 2114(a) offense also fails to
qualify as a "crime of violence" that could support his § 924(j)
conviction.
According to the government, however, the text in
§ 2114(a) that precedes the semicolon sets out three distinct
simple variants of the § 2114(a) offense: the first predicated on
robbery of a custodian of federal property, the second predicated
on assault of that custodian with intent to rob, and the third
predicated on attempted robbery of that custodian. The government
then goes on to contend that the text after the semicolon sets out
two distinct aggravated variants of the § 2114(a) offense. The
first of those offenses, according to the government, is for an
offense in which a person wounds the custodian while committing
the simple § 2114(a) offense. The second of those offenses,
according to the government, is for an offense in which a person
places that custodian's life in jeopardy by the use of a dangerous
weapon. Finally, the government argues that the remaining text
after the semicolon sets forth not a separate § 2114(a) offense
but merely a sentencing factor, which enhances the sentence for
any § 2114(a) offense -- whether a simple or aggravated variant of
- 11 - such an offense -- based on the defendant having violated § 2114(a)
more than once.
From this premise, the government argues that each of
the robbery-, wounding-, and placing-life-in-jeopardy-based
§ 2114(a) offenses has as an element the use of force that is
required for an offense to qualify as a "crime of violence" under
§ 924(c)(3)(A). As a result, in the government's view, so long
as Forteza's predicate § 2114(a) offense was for one of these kinds
of § 2114(a) offenses, it was for an offense that suffices to
support Forteza's § 924(j) conviction because it was for a "crime
of violence" within the meaning of § 924(c)(3).
Against this backdrop, we begin with Forteza's
contention that, because it is not clear from the record whether
his predicate offense was based on the simple or aggravated variant
of the § 2114(a) offense,2 the District Court was obliged to treat
his predicate offense as being for the simple rather than the
aggravated form of the offense and thus to conclude that it did
not qualify as a "crime of violence." Because we conclude that
2The government contends that Forteza's challenge to the District Court's finding that he was convicted of aggravated mail robbery is "underdeveloped" and thus waived. But, because we find the "simplest way to decide" Forteza's challenge on this ground is to proceed to the merits, we do so here. See, e.g., United States v. Grullon, 996 F.3d 21, 32 (1st Cir. 2021) (quoting United States v. McCullock, 991 F.3d 313, 322 (1st Cir. 2021)).
- 12 - there is no merit to this contention, we then proceed to address
Forteza's fallback contentions.
B.
Forteza begins with the point that the only count of his
indictment that he pleaded guilty to was Count Three, which charged
him with violating § 924(j). See United States v. Faust, 853 F.3d
39, 53 (1st Cir. 2017) (holding that a court may look to a
defendant's "charging document, written plea agreement, transcript
of [their] plea colloquy, and any explicit factual finding by the
trial judge to which the defendant assented," to determine which
offense under a divisible statute formed the basis of the
defendant's predicate (quoting Shepard v. United States, 544 U.S.
13, 16 (2005))). Count Three, to which he pleaded guilty, alleges
that Forteza and his codefendants:
[A]iding and abetting each other, did willfully, intentionally, and unlawfully possess, use or carry a firearm during and in relation to a crime of violence, . . . that is, assaulting an individual who lawfully had charge, control, or custody of money of the United States, with intent to rob, steal, or purloin said money, as set forth in COUNT ONE herein, which is realleged and incorporated by reference herein, . . . and, in the course of that crime of violence, the defendants herein unlawfully killed [the victim] with malice and aforethought through the use of a firearm, . . . by knowingly, willfully, deliberately and maliciously and with premeditation shooting [the victim] with a firearm thus causing his death . . . .
- 13 - Forteza argues that, because there is no reference in
this count to any potentially aggravating element (or elements) of
§ 2114(a) -- that is, to wounding the victim, placing his life in
jeopardy, or committing more than one § 2114(a) offense -- the
count does not make clear that the predicate offense underlying
his § 924(j) conviction was for anything other than the simple
form of the § 2114(a) offense. Thus, he contends, the District
Court was required to treat his predicate § 2114(a) offense as if
it were for the less serious form of the offense and so was for a
simple rather than an aggravated form of the § 2114(a) offense.
Moreover, Forteza contends that the District Court's
contrary conclusion is mistaken insofar as it rests on the
references in the text quoted above from Count Three to a firearm
and to the shooting and killing of the victim. He contends that
those references in the text of Count Three do not establish that
he pleaded guilty to any element (or elements) of having wounded
or placed the life of the victim in jeopardy with respect to an
aggravated form of a § 2114(a) offense. Instead, he contends,
those references were made with respect to establishing that he
pleaded guilty to the elements of the § 924(j) offense, which
requires that the government establish the death of a victim caused
by a firearm.
Finally, Forteza disputes that the text of Count One of
the indictment -- the count charging his § 2114(a) offense -- is
- 14 - incorporated into the text of Count Three. But, he contends, even
if that text from Count One is in fact incorporated into Count
Three, the text of Count One does not itself reference any
particular aggravating element of § 2114(a). Thus, he contends
that text cannot support the conclusion that, because the record
establishes that he pleaded guilty to Count Three, the record
establishes that his predicate § 2114(a) offense was for an
aggravated rather than a simple form of that offense.
Forteza, however, is not correct about the contents of
the text of Count One. That text does specifically allege that,
in the course of committing the § 2114(a) violation, he and his
codefendants "wounded [the victim], the custodian of said money
and put [the victim's] life in jeopardy, by shooting [him] several
times and causing his death." (Emphasis added). The underlined
portions of that text clearly reference the portion of § 2114(a)'s
text that describes wounding or placing a victim's life in jeopardy
by the use of a dangerous weapon. See 18 U.S.C. § 2114(a).
Forteza, therefore, can only succeed in arguing that the
record is not clear as to the nature of his predicate § 2114(a)
offense if the language in Count One concerning his § 2114(a)
offense is not incorporated by reference into the count to which
he pleaded guilty, which is Count Three. But, although the
District Court did not make any explicit finding as to whether the
language of Count One was incorporated into Count Three, the record
- 15 - makes clear that the language of Count One was so incorporated.
See Pullman-Standard v. Swint, 456 U.S. 273, 291-92 (1982) (holding
that appellate courts should remand to the district court to make
"missing findings . . . unless the record permits only one
resolution of the factual issue").
Count Three -- the § 924(j) count to which Forteza
pleaded guilty -- states that the crime of violence underlying the
§ 924(j) charge is "assaulting an individual who lawfully had
charge, control, or custody of money of the United States, with
intent to rob, steal, or purloin said money, as set forth in COUNT
ONE [of the indictment] herein, which is realleged and incorporated
by reference herein." (Emphasis added). In addition, at the
change-of-plea hearing, the sentencing judge confirmed that the
predicate offense underlying the § 924(j) charge was the § 2114(a)
charge "as [was] further described in the main count of the
indictment, [C]ount [O]ne."
Forteza does argue that this conclusion is foreclosed by
the language in the plea agreement that states that the agreement
"constitutes the complete Plea Agreement between the United
States, the defendant, and the defendant's counsel," and further
that the "United States has made no promises or representations
except as set forth in writing in this plea agreement and deny
[sic] the existence of any other term and conditions not stated
herein." But that is not so. The language of Count One is part
- 16 - of -- and so within the four corners of -- the plea agreement
itself precisely because it is expressly incorporated into Count
Three by that count's plain terms. 3 It is thus clear that
Forteza's predicate § 2114(a) offense was based on his having aided
and abetted a violation of § 2114(a) that involved placing the
life of the victim in jeopardy by the use of a dangerous weapon
and wounding that victim. Thus, it is clear from the record that
his § 2114(a) offense was for an aggravated rather than a simple
form of that offense, such that his challenge based on the offense
having been for a simple form of that offense necessarily fails.
C.
Forteza does separately contend that the aggravated form
of § 2114(a) is indivisible as between wounding, placing life in
jeopardy, and the repeated commission of the simple form of the
§ 2114(a) offense. Thus, he contends that even the aggravated
form of the § 2114(a) offense charged in Count One does not qualify
as a "crime of violence," precisely because the simple form of
that offense does not. But we have rejected this exact argument
in Rojas-Tapia v. United States, __ F.4th __ [slip op. at 18-22]
(1st Cir. 2024) [Nos. 20-1514, 20-1735].4 Nor does Forteza develop
3 Though Forteza is correct that the transcript of the change-of-plea colloquy did not contain any mention of a wounding or placing-life-in-jeopardy aggravator of § 2114(a), he makes no argument that this should trump any explicit reference to such aggravators in the incorporated language of the plea agreement. 4 Because we reject Forteza's argument about the indivisible - 17 - any other argument as to why we must conclude that the District
Court was wrong to hold that the aggravated variant of the
§ 2114(a) offense with which he was charged would qualify as a
crime of violence under § 924(c)'s force clause. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (deeming issue
waived where party makes no "effort at developed argumentation").
D.
There remains, then, only Forteza's final ground for
challenging his § 924(j) conviction. Here, he contends that, even
if his predicate § 2114(a) offense would qualify as a crime of
violence under § 924(c)'s force clause when committed by a
principal, it does not so qualify here because he committed that
offense as an aider and abettor. See 18 U.S.C. § 2 ("Whoever
commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commission, is
punishable as a principal."). But we have also rejected this
argument in Rojas-Tapia. See Rojas-Tapia, __ F.4th at __ [slip
op. at 26-35]. We thus must reject this aspect of his challenge
to the District Court's decision to deny his habeas petition as
well.
nature of the aggravated form of the § 2114(a) offense on the merits, we need not address the government's contentions that he waived this argument both below and on appeal. See, e.g., Grullon, 996 F.3d at 32.
- 18 - IV.
The decision of the District Court is affirmed.
- 19 -