United States v. Lopez-Soto

960 F.3d 1

• Court: Court of Appeals for the First Circuit
• Decided: May 21, 2020
• Docket: 17-1663P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 17-1663, 17-1668, 17-1679, 17-1680

UNITED STATES,

Appellee,

v.

CARLOS ENRIQUE LÓPEZ-SOTO, A/K/A CHEMITO,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Dominguez, U.S. District Judge]

Before

Barron, Lipez, and Dyk, Circuit Judges.

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.

 Of the Federal Circuit, sitting by designation. May 21, 2020

- 2 - 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)

- 3 - 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

- 4 - 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).

1The Judgement in Case No. 14-cr-637 lists the conviction as to Count Seventeen as corresponding to "18 U.S.C. § 924(g)(1) & - 5 - 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

924(a)(2)." This appears to be a typographical error. As noted above, Count Seventeen corresponds to 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2.

- 6 - 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

- 7 - 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:

- 8 - 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 further questioning by

López-Soto, Ruiz testified that he signed the agreement "without

any promise."

- 9 - On appeal, López-Soto argues that the district court's

medical care instruction was improper and that the instruction is

evidence of bias by the trial judge. We reject the claim of bias

but agree that the district court's medical care instruction was

improper. We nevertheless conclude that this error was harmless

in light of the overwhelming evidence of López-Soto's guilt.

This court has recognized that trial judges have a

"common law power to question witnesses and to analyze, dissect,

explain, summarize, and comment on the evidence." Logue v. Dore,

103 F.3d 1040, 1045 (1st Cir. 1997). "What a trial judge may not

do, however, is take on the role of an advocate or 'otherwise use

his judicial powers to advantage or disadvantage a party

unfairly.'" United States v. Ayala-Vazquez, 751 F.3d 1, 24 (1st

Cir. 2014) (quoting Logue, 103 F.3d at 1045). "In that vein,

there is no question that it is 'improper for a judge to assume

the role of a witness' by testifying to facts or authenticating

evidence." Id. (quoting Glasser v. United States, 315 U.S. 60,

82 (1942)). When addressing allegations of judicial bias, this

court considers (1) "whether the [judge’s] comments were

improper"; and, if so, (2) "whether the complaining party can show

serious prejudice." United States v. DeCologero, 530 F.3d 36, 56

(1st Cir. 2008).

Although we do not conclude that López-Soto has

established that the trial judge was biased, the impropriety of

- 10 - the district court's medical care instruction is evident. The

district court's instruction purported to be a statement of law,

but it was in reality a factual representation that Ruiz had an

unconditional right to medical care, and strongly implied that

Ruiz could not have been concerned about receiving adequate medical

care. It also suggested that López-Soto's line of questioning was

unsupported and improper. The district court's instruction thus

added to the record evidence. In doing so, the district judge

failed to heed this court's guidance that "trial judges must guard

against adding to the evidence . . . under the guise of . . .

commenting on the evidence." Ayala-Vazquez, 751 F.3d at 28; see

also Quercia v. United States, 289 U.S. 466, 471–72 (1933)

(ordering the reversal of a judgment where "the trial judge did

not analyze the evidence; he added to it, and he based his

instruction [to the jury] upon his own addition").

The instruction cannot be justified as correcting a

factual error as to Ruiz's legal right to medical care. The issue

was not whether Ruiz would have been legally entitled to medical

care if he had not signed the plea agreement, but instead whether

Ruiz believed he had to agree to the plea deal in order to receive

care. The district judge's instruction had the effect of

eliminating from the jury's consideration this salient factual

issue. Not only did the trial judge prevent López-Soto from

pursuing this impeachment theory, the judge contradicted it by

- 11 - suggesting that Ruiz could not have been motivated by his need to

secure medical care. The impropriety of the instruction is

especially apparent where, as here, the prosecution had neither

objected to López-Soto's line of questioning nor sought a

corrective instruction from the court.

Notwithstanding this error, we do not order a new trial

because López-Soto has not met his burden to show "serious

prejudice." See DeCologero, 530 F.3d at 56. It is, first,

unclear whether, absent the instruction, Ruiz's testimony would

have been helpful to López-Soto. As the district judge noted, the

terms of Ruiz's plea agreement stated that "[t]he 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." On cross, Ruiz

testified that he signed the agreement "without any promise." And

on re-direct, Ruiz distanced himself from his motion to withdraw,

testifying that he did not actually write the motion and only

"signed it under fear" that he would suffer adverse consequences

if he did not sign it. And Ruiz never suggested -- whether in his

motion to withdraw or elsewhere -- that his statements regarding

López-Soto's involvement in the offenses were false. This

evidence suggests that López-Soto's questioning (absent the

improper medical care instruction) was unlikely to be helpful to

López-Soto.

- 12 - Even if Ruiz's testimony had been successfully

impeached, the other evidence of López-Soto's guilt (described

above) -- including testimony by cooperating co-defendant García-

Santiago, video recordings, items seized from López-Soto and his

girlfriend, and other physical evidence connecting López-Soto to

the robberies -- was overwhelming. In light of this evidence,

"[w]e are satisfied that 'there is no chance that the remarks made

[by the district judge] prejudiced the outcome' of the trial."

See Ayala-Vazquez, 751 F.3d at 27 (quoting United States v.

Gentles, 619 F.3d 75, 83 (1st Cir. 2010)).

B.

We next address López-Soto's contention that the

district court erred in preventing him from cross-examining Ruiz

about Ruiz's testimony that López-Soto participated in robberies

occurring in 2013, in violation of the Sixth Amendment's

Confrontation Clause. The district court had prevented cross-

examination on the basis that López-Soto was not charged with 2013

robberies.

Before Ruiz testified, the government had called the

other cooperating co-defendant, García. On direct examination,

García testified that López-Soto committed robberies in 2013:

Q. And going to those robberies in 2013, with whom did you commit these robberies that you're talking to us about?

A. With the gentleman that's here.

- 13 - Q. And who are you referring to, sir?

. . . .

A. Chemito [i.e., López-Soto].

On cross-examination, García reiterated López-Soto's participation

in 2013 robberies:

Q. . . . In what month of 2013 I sold you the revolver, .38 caliber, and we get together and plan all this?

A. It was around, like, May or June. We would meet in that business establishment Flor de Mayo. Luis, Chemito would meet there with me. I would bring Coco, Juvencio, Juve, and myself. Yeah.

BY MR. LÓPEZ-SOTO:

Q. Can you specify a month in 2013 that I participate in any robbery with you?

A. I don't recall exactly like that in 2013, a month.

Q. But you remember it was in 2013?

A. That's right. That's correct.

(emphasis added). The district court imposed no limit on the

cross-examination.

Later when Ruiz took the stand he testified as to López-

Soto's participation in robberies. On questioning from the

government, Ruiz stated:

- 14 - Q. Did it come a time that you engaged in robberies, sir?

A. Yes.

Q. And when was this, sir?

A. Well, in 2013. Well, or 2013, 2014. On or about that time.

Q. And, sir, you mentioned to us that around 2013, 2014 you did robberies.

A. Correct.

Q. With whom did you do these robberies?

A. With . . . Chemito [i.e., López-Soto].

(emphasis added).

On cross-examination, López-Soto sought to discredit

Ruiz by getting him to admit that López-Soto had not participated

in any robberies in 2013. To that end, López-Soto asked Ruiz the

date in 2013 on which they first met. Before Ruiz answered, the

prosecutor objected. The prosecutor reasoned that López-Soto did

not have a "good-faith basis" for asking the question because he

"knows that he participated [only] in 2014, that's why he cannot

coax the witness [into testifying that they that met or committed

robberies] in 2013." The district court sustained the

government's objection, explaining to López-Soto that "[y]ou

- 15 - cannot . . . coax the witness to give a wrongful answer and then

say that he's a liar," and that "[y]ou're not charged with anything

in 2013. Nothing." As a result, López-Soto was not allowed to

cross-examine Ruiz as to López-Soto's involvement (or lack

thereof) in robberies in 2013.

López-Soto asserts that the district court's

restrictions violated his rights under the Sixth Amendment's

Confrontation Clause. "The Sixth Amendment to the Constitution

guarantees the right of an accused in a criminal prosecution 'to

be confronted with the witnesses against him.'" Davis v. Alaska,

415 U.S. 308, 315 (1974). The right to confrontation includes the

right to challenge the credibility of those witnesses. See id.

at 318. A district court's limitation on cross-examination

violates the Confrontation Clause if, "absent the limitation,

. . . the jury [would] have received a 'significantly different

impression' of the witness's credibility." DiBenedetto v. Hall,

272 F.3d 1, 10 (1st Cir. 2001) (quoting Delaware v. Van Arsdall,

475 U.S. 673, 680 (1986)).

We conclude that López-Soto's Confrontation Clause

rights were not violated. Ruiz's testimony at issue was cursory

and hardly clear, in contrast to the earlier García testimony.

The most reasonable interpretation of Ruiz's testimony was simply

that he himself was unclear about the date of the charged

robberies, rather than that López-Soto had engaged in additional,

- 16 - uncharged robberies in 2013. Allowing the testimony to stand

(without cross-examination) did not reasonably create an

impression that López-Soto committed other, uncharged robberies.

In other words, Ruiz's testimony as to López-Soto's involvement in

"2013, 2014" -- even absent cross-examination -- was not

prejudicial to López-Soto.

In any event, even interpreting Ruiz's testimony to be

that López-Soto participated in robberies in 2013, that testimony

was inconsequential relative to Ruiz's testimony as a whole. A

defendant’s Confrontation Clause right "is not without limits,"

and "the district court wields considerable discretion to impose

'reasonable limits' on cross-examination." United States v.

Casey, 825 F.3d 1, 24 (1st Cir. 2016) (quoting United States v.

Raymond, 698 F.3d 32, 40 (1st Cir. 2012)). "The court need not

permit unending excursions into each and every matter touching

upon veracity if a reasonably complete picture [of a witness] has

already been developed." United States v. Fortes, 619 F.2d 108,

118 (1st Cir. 1980). Ruiz's testimony, which spanned over two

days and dozens of pages in the trial transcript, easily provided

the jury with a reasonably complete picture of his "veracity, bias,

and motivation." See United States v. Capozzi, 486 F.3d 711, 723

(1st Cir. 2007) (quoting United States v. Byrne 435 F.3d 16, 21

(1st Cir. 2006)).

- 17 - Ruiz testified that he had entered into a cooperation

agreement with law enforcement, and that he had done so "to help

[him] out with [his] sentencing and to start out anew, from zero.

Be a good citizen." Ruiz testified that he "would face an

additional charge" if he did not "comply with the conditions of

[his] cooperation [agreement]." And López-Soto elicited testimony

from Ruiz that tended to undercut Ruiz's credibility, for example,

that Ruiz initially claimed to not recognize López-Soto. We

cannot conclude that, absent the cross-examination that López-Soto

sought, the jury lacked a "reasonably complete picture" of Ruiz's

credibility, see Capozzi, 486 F.3d at 723, or that if the district

court had not limited López-Soto's cross-examination the jury

would have had a "significantly different impression" of Ruiz's

credibility, see Van Arsdall, 475 U.S. at 680. López-Soto's right

to confront the witnesses against him was not violated.

López-Soto does not argue that, aside from a

Confrontation Clause violation, the district court abused its

discretion. We find no error as to the district court's limitation

of López-Soto's cross-examination.

C.

We next turn to López-Soto's contention that the

government violated Brady v. Maryland, 373 U.S. 83 (1963), by

failing to timely disclose materials pertaining to an interview of

co-defendant Ruiz by law enforcement on the day of his arrest. In

- 18 - that interview, Ruiz had been shown several photographs and been

asked to identify the person in each photograph. Ruiz identified,

among others, co-defendants García and Juvencio Correa-Morales.

However, when shown a photograph of López-Soto, Ruiz "said that

[he] didn't know him." We review the district court's decision

on López-Soto's Brady claim for abuse of discretion. See United

States v. Villarman-Oviedo, 325 F.3d 1, 13 (1st Cir. 2003).

Although López-Soto received a report of this interview

("ROI")2 before trial, the government did not provide López-Soto

with the photographs associated with the ROI until the fourth day

of López-Soto's trial. Without these photographs, López-Soto

could not have known that Ruiz's statement in the ROI that he did

not recognize the subject of the photograph was referring to López-

Soto. The district court recognized the tardiness of the

government's disclosure, and first offered a trial continuance

when López-Soto complained about the late disclosure. The court

asked: "how much more time [in addition to the day being provided]

do you want?" López-Soto did not respond to the question. The

district court found that the delay could be sufficiently remedied

2 It appears that the ROI is not in the record. The government had attempted to video record the interview, but it seems that due to a technical problem no recording was actually made. López-Soto attempted to present evidence of the loss of this recording to the jury, but the district court excluded the evidence as merely collateral. López-Soto does not challenge the district court's decision on this point.

- 19 - by allowing López-Soto to use the ROI in trial the following day.

The court stated: "It [the disclosure of the photographs] may have

been late, but it [the delay] is easily cured by giving him time.

Because he now knows, if he didn't know, that is the photograph"

of López-Soto presented to Ruiz. The following day López-Soto

elicited testimony from Ruiz that when he was shown the photograph

of López-Soto, Ruiz had stated that he "did not know him." On

appeal, López-Soto asserts that the government's delay in

disclosing these photographs warrants vacatur of his convictions

and remand for a new trial.

"In a criminal case, [under Brady,] the government bears

an 'affirmative duty to disclose evidence favorable to a

defendant.'" United States v. Montoya, 844 F.3d 63, 71 (1st Cir.

2016) (quoting Kyles v. Whitley, 514 U.S. 419, 432 (1995)). "If

the government fails disclose this so-called Brady material in a

timeous manner, the defendant may be entitled to relief." Id. To

show that a delayed disclosure of information violated the

government's Brady obligation, the defendant has a "threshold

burden" to "show that 'learning the information altered the

subsequent defense strategy, and [that], given timeous disclosure,

a more effective strategy would likely have resulted.'" United

States v. Lemmerer, 277 F.3d 579, 588 (1st Cir. 2002) (alteration

in original) (quoting United States v. Devin, 918 F.2d 280, 290

(1st Cir. 1990)).

- 20 - López-Soto has not satisfied his threshold burden to

show prejudice caused by the delayed disclosure. After having

been provided the photographs with a day to prepare, López-Soto

was able to demonstrate that Ruiz had previously claimed not to

know López-Soto. López-Soto fails to explain how he would have

done things differently had the photographs been disclosed

earlier. In his briefing, López-Soto argues that "[i]t is hard

to think of anything more favorable or potentially exculpatory"

than evidence suggesting that Ruiz did not know López-Soto. But

this argument goes to materiality, not López-Soto's burden to show

that "a more effective [trial] strategy" would have resulted from

an earlier disclosure. See Lemmerer, 277 F.3d at 588. At oral

argument, López-Soto could only provide "the obvious but

admittedly generic answer that the appellant would have been better

prepared for trial" with an earlier disclosure. But López-Soto

"'must bear the burden of producing, at the very least, a prima

facie showing of a plausible strategic option which the delay

foreclosed' . . . or [how the delay] prevented defense counsel

from using [the evidence] effectively." Id. (quoting Devin, 918

F.2d at 290). López-Soto has not met his burden.

D.

López-Soto argues that his motion to suppress should not

have been denied and that the evidence at trial was insufficient

to convict him.

- 21 - 1

Although the district court granted López-Soto's motion

to suppress his confession made while in custody, it denied the

motion as to evidence of (1) statements that he made at the time

of his arrest, and (2) two items (.38 caliber bullets and a plastic

pistol) that were seized from his vehicle when he was arrested.

López-Soto had moved to suppress on the theory that the government

lacked probable cause to arrest him and search his vehicle. López-

Soto argues that the district court erred in denying his motion to

suppress and his request for a suppression hearing. We disagree.

López-Soto has not established error in the district

court's suppression rulings. "When reviewing a district court's

disposition of a motion to suppress, we accept the court's findings

of fact unless they are clearly erroneous and subject its

conclusions of law . . . to de novo review." United States v.

Brown, 500 F.3d 48, 53 (1st Cir. 2007). López-Soto contends that

the district court erred in denying his motion to suppress "just

and only because" he did not file an affidavit under penalty of

perjury in support of his motion. This misunderstands the

district court's ruling. The district court properly concluded

that probable cause was established by the combination of (1) an

informant's tip as to López-Soto's location; and (2) video footage

of a robbery that was used to identify López-Soto as a perpetrator.

Though the district court indicated that its denial was without

- 22 - prejudice to a renewed motion to suppress based on an affidavit by

López-Soto (or another), the district court did not deny

suppression due to the lack of such an affidavit.

Nor did the district court err in denying López-Soto's

request for a suppression hearing. López-Soto's motion to

suppress was premised entirely on undisputed facts, and his one-

line request for a hearing did not explain the purpose that a

hearing would serve. It was not an abuse of discretion for the

district court to conclude that, without a showing in the form of

a sworn statement that would create a material factual dispute, a

hearing on the motion to suppress was unnecessary.

López-Soto argues that the district court erred in

denying his motion for acquittal for two of the firearm counts of

which he was convicted: brandishing a firearm during a Hobbs Act

robbery under 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Case No. 14-

cr-415, Count Two), and possession of a firearm by a convicted

felon under 18 U.S.C. §§ 922(g)(1) and 2 (Case No. 14-cr-415, Count

Three). López-Soto was convicted under the theory that he aided

and abetted García in the commission of these offenses. To be

convicted as an accomplice to a section 924(c)(1)(A)(ii) offense,

the government had the burden to show beyond a reasonable doubt

that López-Soto knew "to a practical certainty" that García would

brandish a gun. See United States v. Spinney, 65 F.3d 231, 234

- 23 - (1st Cir. 1995) (quoting United States v. Torres-Maldonado, 14

F.3d 95, 103 (1st Cir. 1994)). To be convicted as an accomplice

to the section 924(g) offense, the government had the burden to

show that López-Soto knew that García possessed a firearm. See

United States v. Ford, 821 F.3d 63, 74 (1st Cir. 2016). López-

Soto asserts the government failed to meet this burden.

"We review [a district court's decision to deny a motion

for acquittal] de novo, but our review . . . is 'quite limited; we

must affirm unless the evidence, viewed in the light most favorable

to the government, could not have persuaded any trier of fact of

the defendant’s guilt beyond a reasonable doubt.'" United States

v. Hernandez, 218 F.3d 58, 64 (1st Cir. 2000) (quoting United

States v. Paradis, 802 F.2d 553, 559 (1st Cir. 1986)).

There was ample evidence to support the verdict.

Cooperating co-defendant García testified that, on June 3, 2014,

he and López-Soto robbed an AT&T store in Lares, Puerto Rico, and

that in the robbery García had brandished a .38 caliber revolver.

The evidence supported a finding that López-Soto knew García

possessed and would brandish the revolver. García testified that:

(1) López-Soto had sold the revolver to him, (2) García had visibly

handled and inspected the weapon in the car -- while López-Soto

was in the other front seat -- before the robbery, (3) "we always

carried it [i.e., the gun] with us" during robberies, and (4)

López-Soto "was aware that [García's] modus operandi was to always

- 24 - show the firearm during the robberies." Based on this testimony,

"a rational jury could have found that the government proved the

[knowledge] elements of the crime[s] beyond a reasonable doubt."

See United States v. Appolon, 715 F.3d 362, 367 (1st Cir. 2013)

(quoting United States v. Mardirosian, 602 F.3d 1, 7 (1st Cir.

2010)).

denying his motion for acquittal as to all counts because none of

the victims identified López-Soto at trial. López-Soto's argument

lacks merit. This court has never required that a victim identify

the defendant, but has instead "repeatedly . . . held that 'the

uncorroborated testimony of a cooperating accomplice may sustain

a conviction so long as that testimony is not facially

incredible.'" United States v. Cortés-Caban, 691 F.3d 1, 14 (1st

Cir. 2012) (quoting United States v. Torres–Galindo, 206 F.3d 136,

140 (1st Cir. 2000)). Here, not one but two cooperating co-

defendants -- García and Ruiz -- testified as to López-Soto's

participation in the robbery scheme of which he was accused.

Documentary evidence, physical evidence, and the testimony of many

victims and government agents corroborated García and Ruiz's

testimony. The evidence is more than sufficient to sustain the

verdict.

- 25 - E.

López-Soto challenges various other rulings of the

district court.

consolidating the two cases for which he was being prosecuted.

The court reviews joinder decisions de novo. United States v.

Ponzo, 853 F.3d 558, 568 (1st Cir. 2017) López-Soto does not

appear to contest the propriety of joinder under Federal Rule of

Criminal Procedure 13. Nor has López-Soto demonstrated prejudice

sufficient to foreclose joinder. See Fed. R. Crim. P. 14. López-

Soto has not shown error in the consolidation of these cases.

López-Soto contends that the district court's denial of

his request for a continuance of the start of the trial was an

abuse of discretion and violated his Sixth Amendment rights. The

court "review[s] a denial of a motion for a continuance for abuse

of discretion." United States v. Arias, 848 F.3d 504, 514 (1st

Cir. 2017). "If the denial of a continuance effectively deprives

a pro se defendant of the ability to represent himself, it may

constitute both an abuse of discretion and a Sixth Amendment

violation." Barham v. Powell, 895 F.2d 19, 22 (1st Cir. 1990).

Because López-Soto raises this argument for the first time on

- 26 - appeal, we review the district court for plain error. See United

States v. González-Barbosa, 920 F.3d 125, 128 (1st Cir. 2019).

At a hearing three days before trial, the district court

gave final approval to López-Soto's request to represent himself

at trial. López-Soto then moved to continue his trial, contending

primarily that he did not have enough time to "confer with

witnesses" that he intended to call. The district court denied

the continuance. As the district court noted, López-Soto had been

requesting to represent himself for over a year and had been filing

pro se motions for two years. The district court concluded López-

Soto would have adequate time to prepare his witnesses.

On appeal, López-Soto asserts that he did not have

sufficient time to review video recordings of the robberies of

which he was accused. But, at the pre-trial hearing, the district

court ordered the government to provide López-Soto with the

recordings; López-Soto suggested at trial that he had seen them;

and López-Soto did not thereafter raise the issue at the district

court. In failing to articulate with particularity how additional

time would have improved his effectiveness at trial, López-Soto

has not met his "heavy burden" to "show that the judge's decision

caused specific, 'substantial prejudice.'" United States v.

Robinson, 753 F.3d 31, 41 (1st Cir. 2014) (quoting United States

v. Maldonado, 708 F.3d 38, 42 (1st Cir. 2013)). López-Soto has

- 27 - not shown that the district court abused its broad discretion in

declining to continue the trial.

López-Soto challenges the district court's denial of

many of his pro se pretrial motions. So long as López-Soto was

represented by counsel, he had no right to file his own motions.

López-Soto "has no right to hybrid representation" by himself and

counsel simultaneously. See United States v. Nivica, 887 F.2d

1110, 1121 (1st Cir. 1989). "That is not to say that hybrid

representation is foreclosed; rather, it is to be employed

sparingly and, as a rule, is available only in the district court's

discretion." Id. We review the district court's decision to not

allow hybrid representation for abuse of discretion. Id. Here,

the court noted that López-Soto's counsel were "excellent" and had

"vast experience here in court precisely in this type of case,"

whereas López-Soto had "no experience in any legal analysis." The

district court did not abuse its discretion in declining to

consider his pro se motions while he was represented by counsel.

In any event, López-Soto presents no developed argument

as to what motions were erroneously denied, merely citing docket

numbers of the motions and the district court’s corresponding

orders. These motions generally requested the court to compel the

government to produce directly to López-Soto evidence it intended

to use at trial. The court denied many of these pro se motions

- 28 - because López-Soto was, at the time, being represented by two

attorneys. The court ordered López-Soto "to provide his counsel

with a copy of any motion he wishes to file for counsel to perfect

the motion and duly file it."

López-Soto has not shown any error in the court's denial

of his pro se motions. López-Soto has not specifically

articulated why he needed the evidence directly from the

government. He states that the motions were "important for the

preparation of the defendant's defense" and notes that the

government did not respond to many of these motions. But López-

Soto does not explain, for example, why he could not obtain

government evidence from his counsel, and why instead he needed a

court order that the government produce it to him directly. There

was no abuse of discretion by the district court in rejecting

López-Soto’s motions.

López-Soto also contends that the district court erred

in "allowing the US government to file a second response to [López-

Soto's] motion" for acquittal. The government's original response

to López-Soto's motion for acquittal did not include citations to

the record. The district court, sua sponte, ordered the

government to refile its response -- with citations to the record

-- within four business days. The district court's ruling was not

an abuse of discretion.

- 29 - F.

Finally, López-Soto argues that his sentence of 744

months of imprisonment is substantively unreasonable. He

acknowledges that "the statutory and guidelines calculations

appear to be correctly applied and accurate," but primarily argues

that "in the face of his codefendants' more extensive charged

criminal acts," the substantially higher sentence that he received

is unreasonable. López-Soto did not raise the issue of disparity

between his sentence and that of his co-defendants before the

district court. We therefore review the district court's sentence

only for plain error. See Gonzalez-Bárbosa, 920 F.3d at 128.

All three of López-Soto's co-defendants pled guilty to:

(1) a RICO violation under 18 U.S.C. §§ 1962(d) and 1963(a); and

(2) carrying a firearm during and in relation to a crime of

violence under 18 U.S.C. §§ 924(c)(1)(A). Co-defendant Jesús

Ramírez-Cotto was sentenced to 171 months of imprisonment. Co-

defendant Ruiz's sentence was sealed, but his plea appears to have

recommended a sentence between 205 and 235 months. Co-defendant

García's sentence was also sealed, but his plea agreement

recommended a sentence between 262 and 327 months.

Title 18, section 3553(a) provides factors that a court,

"in determining the particular sentence to be imposed, shall

consider." Section 3553(a)(6) notes "the need [in sentencing] to

- 30 - avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct."

Here, focusing on the disparities of the defendants, and

even assuming that the sentences of Ruiz and García were within

the range proposed, López-Soto's disparity argument fails. "Since

the District Judge correctly calculated and carefully reviewed the

Guidelines range, he necessarily gave significant weight and

consideration to the need to avoid unwarranted disparities." Gall

v. United States, 552 U.S. 38, 54 (2007) (emphasis added).

"Although this section is primarily aimed at national disparities,

rather than those between co-defendants, a district court may

consider differences and similarities between co-defendants at

sentencing." United States v. Marceau, 554 F.3d 24, 33 (1st Cir.

2009) (citation omitted).

There is no showing of an unwarranted disparity. López-

Soto's co-defendants were not "found guilty of similar conduct."

See 18 U.S.C. § 3553(a)(6). Though some of López-Soto's co-

defendants were charged with more crimes than López-Soto, all three

co-defendants were convicted of fewer crimes. Notably, for

example, López-Soto was convicted of three Hobbs Act robberies,

whereas none of his co-defendants was convicted of any.

So too, all co-defendants to whom López-Soto compares

himself pled guilty (López-Soto did not), and two of the three

cooperated with law enforcement (López-Soto did not). This court

- 31 - has recognized "the permissible distinction" for sentencing

purposes "between co-defendants who go to trial and those who plead

guilty" and "between those who cooperate and those who do not."

United States v. Reyes-Santiago, 804 F.3d 453, 467 (1st Cir. 2015).

In light of these differences between his co-defendants

and himself, López-Soto cannot show "clear[ly] or obvious[ly]"

that the district court abused its discretion in imposing its

sentence. See González-Barbosa, 920 F.3d at 128 (“Courts

frequently reject disparity claims . . . when appealing defendants

ignore material differences between their own circumstances and

those of their co-defendants.”).

III.

We conclude that the district court erred in providing

its medical care instruction to the jury, but find this error to

be harmless in light of the overwhelming evidence of López-Soto's

guilt. For López-Soto's remaining challenges, we find that he has

not shown that the district court plainly erred or abused its

discretion.

As the government notes in its Informative Motion, the

district court -- in sentencing López-Soto to 360 months for Count

One of Case No. 14-cr-415 and Counts One, Fourteen, and Fifteen of

Case No. 14-cr-637 -- exceeded the statutory maximum of 240 months

for these offenses. See 18 U.S.C. §§ 1951(a) and 1963(a). We

- 32 - vacate the district court’s sentence in this respect and remand

for the district court to enter a sentence of 240 months for these

counts to be served concurrently with each other. See United

States v. Almonte-Nuñez, 771 F.3d 84, 92 (1st Cir. 2014)

Affirmed-in-part, vacated-in-part, and remanded.

- 33 -