United States v. Jose Navarro-Cervellon

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 26, 2024
• Docket: 22-4696
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4696

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOSE DAVID NAVARRO-CERVELLON,

Defendant – Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paula Xinis, District Judge. (8:19-cr-00603-PX-2)

Argued: December 8, 2023 Decided: February 26, 2024

Before NIEMEYER, GREGORY, and HEYTENS, Circuit Judges.

Affirmed by unpublished opinion. Judge Heytens wrote the opinion, in which Judge Niemeyer and Judge Gregory joined.

ARGUED: Brent Evan Newton, Gaithersburg, Maryland, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Nicole M. Argentieri, Acting Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Erek L. Barron, United States Attorney, Baltimore, Maryland, William D. Moomau, Assistant United States Attorney, Leah B. Grossi, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. USCA4 Appeal: 22-4696 Doc: 57 Filed: 02/26/2024 Pg: 2 of 13

Unpublished opinions are not binding precedent in this circuit.

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TOBY HEYTENS, Circuit Judge:

A jury convicted Jose David Navarro-Cervellon of three offenses stemming from

the murder of Ramiro Moya. The district court sentenced him to concurrent terms of life

imprisonment and an additional 10-year term to be served consecutively. Navarro raises

several challenges to his convictions and sentence. Seeing no reversible error, we affirm.

I.

Navarro was charged with three crimes: conspiracy to commit murder for hire with

death resulting, in violation of 18 U.S.C. § 1958(a) (Count 1); murder for hire with death

resulting, also in violation of 18 U.S.C. § 1958(a) (Count 2); and using a firearm in

connection with a crime of violence with death resulting, in violation of 18 U.S.C.

§ 924(c)(1)(A) and § 924(j) (Count 3). The indictment alleged the substantive murder for

hire charged in Count 2 as the predicate crime of violence for Count 3. A jury found

Navarro guilty on all three counts.

Before sentencing, Navarro moved for a judgment of acquittal under Federal Rule

of Criminal Procedure 29 and for a new trial under Rule 33. At the sentencing hearing, the

district court orally denied Navarro’s motions. The court then imposed the mandatory

minimum sentences of life imprisonment on Counts 1 and 2 and 10 years of imprisonment

on Count 3 and ordered that the 10-year sentence on Count 3 run consecutively to the

concurrent life sentences on Counts 1 and 2. The district court also imposed various

conditions of supervised release.

II.

Navarro makes four arguments on appeal. We conclude each fails.

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A.

We begin with Navarro’s assertion that his substantive murder for hire conviction

was not a “crime of violence” as defined in 18 U.S.C. § 924(c)(3) and thus could not serve

as a predicate for his firearm conviction.

Navarro’s argument faces a steep climb. For one thing—as Navarro concedes—this

claim is forfeited because it was never raised in the district court. See United States v.

Fuertes, 805 F.3d 485, 497 (4th Cir. 2015) (holding that a general motion for a judgment

of acquittal does not preserve a “purely legal challenge” that a charged predicate is not a

“crime of violence”). To prevail, Navarro thus must do more than show the district court

erred in concluding that his 18 U.S.C. § 1958(a) conviction was a qualifying “crime of

violence.” He also must demonstrate “that the alleged legal error is clear or obvious, rather

than subject to reasonable dispute.” United States v. Ravenell, 66 F.4th 472, 492 (4th Cir.

2023) (quotation marks removed).

Navarro fails to clear that hurdle. This Court has never said a violation of 18 U.S.C.

§ 1958(a) is not a crime of violence. To the contrary, we have held that a conspiracy to

violate that statute is a crime of violence when death results. See United States v. Runyon,

994 F.3d 192, 201–04 (4th Cir. 2021). Given Runyon, it is neither clear nor obvious that

the substantive offense would not also qualify as a crime of violence when death results.

And there is no doubt death resulted here because the jury specifically found the conduct

charged in Count 2 “resulted in the death of Ramiro Moya.” JA 947. *

* At oral argument, Navarro suggested this case is distinguishable from Runyon because that defendant was convicted of conspiring to violate Section 1958(a) while he 4 USCA4 Appeal: 22-4696 Doc: 57 Filed: 02/26/2024 Pg: 5 of 13

Navarro responds that Runyon has been abrogated by United States v. Taylor,

596 U.S. 845 (2022), which issued after his sentencing. But Taylor involved a different

crime (attempted robbery) and a different statute (18 U.S.C. § 1951(a)), and it affirmed a

decision of this Court holding such offenses were not crimes of violence. See United States

v. Taylor, 979 F.3d 203, 205 (4th Cir. 2020), aff’d, 596 U.S. at 848–52. All that makes for

an unpromising start to an argument that it is clear or obvious that Runyon is a dead letter

after Taylor. See, e.g., Carrera v. E.M.D. Sales, Inc., 75 F.4th 345, 352 (4th Cir. 2023) (“We

do not lightly presume that the law of this circuit has been overturned[.]”).

But Navarro presses on, insisting Runyon’s explanation for why Section 1958(a)

violations are crimes of violence cannot be squared with Taylor’s approach to such matters.

Of course, even fatally undermining Runyon’s reasoning would not—by itself—establish

that Runyon’s bottom-line result was clearly or obviously wrong. But Navarro does not

attack all of Runyon’s reasoning. Instead, he argues that two sentences in a seven-paragraph

explanation employed a form of analysis “explicitly rejected” in Taylor, and urges that,

absent such analysis, the result in Runyon would have been different. Navarro Br. 20–21

(identifying language from Runyon).

Even when unconstrained by the limited scope of review brought on by forfeiture,

this Court has cast doubt on arguments of that type. Indeed, “[w]e have expressly held that

when a Supreme Court decision abrogates one portion of our rationale in a prior case but

was convicted of the substantive offense. See Oral Arg. 12:34–13:12. That argument is not merely forfeited: It is waived. See Navarro Br. 20 n.20 (acknowledging that Runyon involved a conspiracy offense but stating that Runyon’s “reasoning equally applied to a ‘substantive’ violation of § 1958(a)”). 5 USCA4 Appeal: 22-4696 Doc: 57 Filed: 02/26/2024 Pg: 6 of 13

not another, the rationale not abrogated by the Supreme Court nonetheless binds future

panels of this court.” Taylor v. Grubbs, 930 F.3d 611, 619 (4th Cir. 2019). Nothing in the

Supreme Court’s decision in Taylor “directly contradict[s] our prior holding” in Runyon

(id.) or makes clear that no “portion” of Runyon’s “logic” or reasoning remains “intact,”

United States v. Obey, 790 F.3d 545, 550 (4th Cir. 2015). To the contrary, much of this

Court’s reasoning in Runyon turned on the relationship between the required result of the

offense (a “death”) and the specific intent requirement (“that a murder be committed for

money”)—reasoning that is in no way undermined by Taylor. See Runyon, 994 F.3d at 204.

To be clear: We need not—and thus do not—decide whether Runyon’s holding about

Section 1958(a) remains correct or binding post-Taylor. We hold only that Navarro has

failed to meet his burden of showing that the district court committed clear or obvious error

in following Runyon here.

B.

We turn next to Navarro’s challenge to the district court’s denial of his new trial

motion. Navarro does not contend the court could not have denied that motion under the

correct legal standard—a decision that would be reviewed only for an abuse of discretion.

See United States v. Miller, 41 F.4th 302, 315 (4th Cir. 2022). Instead, Navarro argues the

district court made a legal error by applying the wrong standard.

We disagree. To be sure, the court’s oral explanation of its ruling made significant

use of shorthand and could have been more thoroughly explained. But we see no persuasive

evidence the court misunderstood the relevant legal standards or applied the wrong one in

denying Navarro’s new trial motion. See Frazier v. Prince George’s Cnty., 86 F.4th 537,

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544 (4th Cir. 2023) (noting that, absent circumstances not present here, “a district court’s

lack of explanation doesn’t amount to error, even if it makes our job harder”).

Two threshold considerations frame our inquiry. First, as Navarro concedes,

Rule 33 does not require a district court to explain its reasons for denying a motion for a

new trial. Compare United States v. Ali, 991 F.3d 561, 570 (4th Cir. 2021) (noting that a

“district court does not need to expound upon its reasoning in its denial of a new trial

motion”), with 18 U.S.C. § 3553(c) (directing a sentencing court to state “the reasons for

its imposition of the particular sentence”); and Fed. R. Crim. P. 12(d) (requiring courts to

make express findings of fact when ruling on pretrial suppression motions). Second,

“[e]ven when the transcript does not explicitly show as much, trial judges are presumed to

know the law and to apply it in making their decisions.” Ali, 991 F.3d at 570 (alterations

and quotation marks removed). For that reason, the question is not whether the district

court provided enough explanation for denying Navarro’s Rule 33 motion or whether some

of the court’s language can be read in the way he suggests. Instead, it is whether the district

court’s oral explanation for its decision is enough to rebut the presumption that the court

knew and was applying the correct legal standard.

As always, the context for the district court’s ruling is critical. Like many federal

criminal defendants, Navarro filed two post-trial motions in one document: He asked for

both a judgment of acquittal under Federal Rule of Criminal Procedure 29 and a new trial

under Rule 33. That filing was entered on the district court’s electronic docket as entry 198

and labeled “Motion for New Trial.”

Despite being brought in a single filing, however, all agree that Navarro brought

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two alternative motions governed by distinct legal standards. A court deciding a Rule 29

motion may neither weigh the evidence nor assess witness credibility. See, e.g., United

States v. Gallagher, 90 F.4th 182, 190 (4th Cir. 2024). Instead, the court asks whether “any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Millender, 970 F.3d 523, 528 (4th Cir. 2020).

In contrast, district courts enjoy “much broader” authority when deciding whether

to grant a new trial based on the weight of the evidence. United States v. Arrington,

757 F.2d 1484, 1485 (4th Cir. 1985). When reviewing such a motion, the court acts “as a

thirteenth juror” by “conduct[ing] its own assessment of the evidence, unconstrained by

any requirement to construe the evidence in the government’s favor.” United States v.

Rafiekian, 68 F.4th 177, 186 (4th Cir. 2023) (quotation marks removed). The central

question in the Rule 33 context is whether “the evidence weighs so heavily against the

verdict that it would be unjust to enter judgment.” Arrington, 757 F.2d at 1485.

The parties’ disagreement is narrow. They agree about the relevant legal standards.

They agree the district court denied both motions. And they agree the district court applied

the correct legal standard in denying Navarro’s Rule 29 motion. The only dispute is

whether Navarro can show the district court applied the wrong legal standard when orally

denying the Rule 33 motion.

On that question, we conclude the answer is no. After confirming Navarro had

received and reviewed the presentence report, the district court said it was “mov[ing] to the

motion for new trial at ECF 198” (JA 978) which—again—is how Navarro’s single

consolidated filing was labeled on the court’s docket (JA 30). The court explained it had

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“left” that motion “open just to make sure that there wasn’t anything else that either side

wished to bring to [its] attention,” and noted that it had not “received any other

supplemental information.” JA 978. The court then said it was “going to deny that motion,”

and gave the following brief explanation:

As counsel well knows, that a jury’s verdict is to be upheld if there is substantial evidence viewed in the light most favorable to the government to support it. Another way of saying it is I can only set aside the jury verdict if I find that no reasonable juror could come to the conclusion -- to come to a finding of guilt.

And as to the three counts to which Mr. Navarro was convicted, I presided over the entire trial, listened to the witnesses, heard the evidence, and there is simply no basis to grant the new trial motion. Obviously, it preserves your issues for appeal, but I’m going to deny ECF 198.

JA 978–79.

All agree the first paragraph of that explanation closely tracks the Rule 29 standard.

See Rafiekian, 68 F.4th at 186. The dispute involves the second paragraph.

Admittedly, that paragraph does not recite the Rule 33 standard. Still, what the court

did say (“I presided over the entire trial, listened to the witnesses, heard the evidence”)

sounds a lot like a district court that appreciated the shift from Rule 29’s objective standard

to Rule 33’s subjective one. See Rafiekian, 68 F.4th at 186. There would be no obvious

reason for the district court to have discussed its personal impressions of the evidence under

the Rule 29 standard, which focuses on what a reasonable juror could have found. On its

face, that statement seems far more relevant to the court’s role as the “thirteenth juror”

under Rule 33.

The district court’s final statement also undercuts Navarro’s claim that the court

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mistakenly applied the same legal standard in denying his two motions. The court noted

that its ruling “preserves your issues”—plural—“for appeal.” JA 979 (emphasis added).

That too suggests the court recognized that the single filing it referenced at both the

beginning and the end of its discussion (“ECF 198”) raised multiple issues, not just one.

We would not place much significance on the word “issues” standing alone, and it would

not be enough to rebut otherwise-compelling evidence that the district court applied the

wrong standard. But considering the other signals we have, we take this as another cue that

the district court correctly analyzed the issue.

Navarro’s contrary argument relies on United States v. Mallory, 902 F.3d 584 (6th

Cir. 2018). There, the Sixth Circuit reversed the denial of a criminal defendant’s new trial

motion because the trial court’s written order—“[w]hen read as a whole”—

“demonstrate[d] that it asked the wrong question” when denying the Rule 33 motion. Id. at

597. In fact, the Sixth Circuit concluded the district court in that case did exactly what

Navarro accuses the district court of doing here: applying the Rule 29 sufficiency-of-the-

evidence standard when considering a Rule 33 motion. See id. at 596–97.

Navarro overlooks a critical distinction between this situation and Mallory and thus

overstates the similarity between the two. Unlike Navarro, Mallory sought relief only under

Rule 33, meaning any reference to Rule 29’s more rigorous standard for granting a motion

for a judgment of acquittal was out of place and cause for concern. See United States v.

Pioch, No. 3:14-cr-00403-JGC, 2017 WL 1376410, at *1 (N.D. Ohio Apr. 17, 2017)

(“Pending are each defendant’s Fed. R. Crim. P. 33 motion for a new trial.”), rev’d in

relevant part, 902 F.3d at 597. Yet the district court’s written order “repeatedly

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characterized its task as evaluating the sufficiency of the evidence” (the Rule 29 standard)

“rather than weighing the evidence for itself ” (the Rule 33 standard). Mallory, 902 F.3d at

596.

Here, by contrast, the district court confronted both a Rule 29 and a Rule 33 motion.

For that reason, there was nothing problematic about the court’s reference to the Rule 29

standard. And, as we have already explained, we conclude that—“read as a whole,”

Mallory, 902 F.3d at 597—the record here fails to overcome the presumption that the

district court knew and applied the correct legal standard to each of Navarro’s motions.

C.

Navarro next argues he is entitled to resentencing because the district court

mistakenly believed it had to order his 10-year sentence on Count 3 be served

consecutively to the two life sentences he received on Counts 1 and 2. This Court’s recent

decision in United States v. Huskey, 90 F.4th 651 (4th Cir. 2024), resolves that issue. In

Huskey, as here, a defendant was sentenced to two concurrent life sentences to be followed

by a consecutive 10-year sentence for “using and carrying a firearm in connection with a

crime of violence that resulted in [ ] death.” Id. at 676. In Huskey, as here, the defendant

failed to object to the district court’s conclusion that it had to make the 10-year sentence

consecutive but argued that such a conclusion was reversible plain error after the Supreme

Court’s intervening decision in Lora v. United States, 599 U.S. 453 (2023). See Huskey,

90 F.4th at 676. And here—as in Huskey—we hold Navarro is not entitled to relief under

the plain-error standard because he offers no “non-speculative explanation about how a

consecutive sentence tacked onto a life sentence will affect [his] substantial rights.” Id.

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D.

Finally, we address Navarro’s assertion that the district court violated the rule of

United States v. Rogers, 961 F.3d 291 (4th Cir. 2020), by imposing discretionary conditions

of supervised release that were never announced in his presence. We disagree—the district

court committed no Rogers error.

Rogers holds that a district court may not impose discretionary conditions of

supervised release in a written judgment if the court did not announce those conditions

during the sentencing hearing. See 961 F.3d at 297–99. This rule, this Court has explained,

stems from a criminal defendant’s “right to be present when he is sentenced” and the

principle that “if a conflict arises between the orally pronounced sentence and the written

judgment, then the oral sentence controls.” Id. at 296. So, much like Navarro’s challenge

to the district court’s ruling on his motion for a new trial, resolving the alleged Rogers error

requires a close reading of the relevant transcript. See id. (reviewing court determines

whether a Rogers error occurred by “comparing the sentencing transcript with the written

judgment”).

During the sentencing hearing, the district court announced it was imposing “a

special condition of drug and alcohol evaluation and treatment, as deemed appropriate by

probation.” JA 993–94. In its written judgment, the district court stated Navarro “must

participate in” drug and alcohol treatment and in “substance abuse testing” and that his

probation officer would “supervise [his] participation in the program.” JA 1004. According

to Navarro, these two conditions are “materially different” because the court’s oral

pronouncement—but not its written judgment—gave the probation officer discretion to

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decide “whether [Navarro] should participate in the programs or testing” in the first place.

Navarro Br. 23–24.

No question, a material discrepancy between a discretionary condition as orally

pronounced and later detailed in the written judgment is a Rogers error. See United States

v. Cisson, 33 F.4th 185, 194 n.6 (4th Cir. 2022). But Rogers itself noted that “where the

precise contours of an oral sentence are ambiguous, we may look to the written judgment

to clarify the district court’s intent.” 961 F.3d at 299.

That is the situation we have here. As the government correctly points out, the

district court’s statement at the sentencing hearing is susceptible to two meanings—either

the probation officer had authority to decide whether Navarro would participate in drug

and alcohol treatment or they had discretion to decide which program he was to complete.

Because both readings are reasonable, we conclude the oral pronouncement was

ambiguous. The court’s written judgment, however, closed the door on one of those

possibilities and adopted the other. So, under Rogers itself, there was no error. See 961 F.3d

at 299; accord United States v. Love, 593 F.3d 1, 9 (D.C. Cir. 2010) (noting the “vast

majority of ” the courts of appeals hold that “district court[s] may use the written judgment

to clarify an ambiguous oral pronouncement of the sentence”). We therefore reject

Navarro’s challenge to his conditions of supervised release.

* * *

The district court’s judgment is

AFFIRMED.