[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 96-1298
UNITED STATES,
Appellee,
v.
JULIO RAMIREZ-BURGOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
Before
Cyr, Stahl and Lynch, Circuit Judges.
Julio Ramirez-Burgos on brief pro se.
Guillermo Gil, United States Attorney, Nelson Perez-Sosa,
Assistant United States Attorney, and Jose A. Quilles-Espinosa, Senior
Litigation Counsel, on brief for appellee.
MAY 21, 1997
Per Curiam. Defendant Julio Ramirez-Burgos was
convicted by a jury of aiding and abetting in two armed
carjackings in violation of 18 U.S.C. 2119, and 18 U.S.C.
2, and of using a weapon during the commission of a violent
crime in violation of 18 U.S.C. 924(c). He was sentenced
to a term of 35 years' imprisonment.
On appeal, defendant seeks to overturn his
conviction on the grounds that (1) the prosecution allegedly
presented perjured testimony, to wit, the testimony of
defendant's accomplice, (2) the court erred in failing to
suppress the two victims' identifications of defendant, (3)
the evidence was otherwise insufficient to prove that
defendant participated in the crimes, and (4) the court erred
in admitting evidence of a rape he committed during one of
the carjackings. He also asserts multiple challenges to the
computation of his sentence.
Background Background
Viewed in the light most favorable to the verdict,
the evidence at trial showed that by prearrangement,
defendant and his accomplice, Daniel Montanez-Rosa
("Daniel"), were each carrying a revolver when they accosted
their first carjacking victim, Nancy Rosada-Santiago
("Nancy"). Brandishing a weapon, one of the men forced Nancy
to cede control of her Pontiac Sunbird.
-2-
The pair then drove around in Nancy's car searching
for a second victim -- all the while holding Nancy against
her will, guns pressed against her. She was forced to lie
low in the front passenger seat, facing the door, while the
men questioned her about her family and personal life, stole
her cash, jewelry and telephone beeper, and threatened her
children and her life.
Spying a second likely victim, Kassandra Rivera-
Boujoven ("Kassandra"), the men rammed Nancy's car into
Kassandra's Mitsubishi. Again brandishing a gun, Daniel took
over the Mitsubishi, forcing Kassandra to lie down on the
passenger seat of her car, face toward the door.
Now in control of two cars and two women victims,
the carjackers continued on their journey toward a site where
they could sell the stolen jewelry and buy drugs. Along the
way, defendant stopped Nancy's car, forced her to undress,
and forcibly raped her.
During the rape the car's interior light was on,
allowing Nancy to see the defendant's face. She also could
hear Daniel yelling from a distance, urging defendant to
"hurry up." With a final instruction to Nancy to remain at
the site or her family would "pay" for it, "especially [her]
little girl," defendant exited the Pontiac and climbed into
the back seat of the Mitsubishi -- leaving Nancy kneeling
-3-
against the passenger seat of her car, traumatized, hurt, and
suffering from vaginal bleeding.
Together again and driving about in the Mitsubishi,
the two men now turned their attention to Kassandra.
Pressing a gun to her ribs, they questioned her about her
personal life, rifled through her purse, stole her jewelry,
threatened her life, and argued between themselves about how
to drug her and kill her.
At one point they stopped the car at a housing
project in order to buy drugs, and again at a gas station to
get water with which to mix the drugs. As they were
injecting themselves with the drugs, a police car approached,
lights flashing. In the light, Kassandra clearly saw the
defendant's face, and his gun. Threatening to shoot her if
she did not turn away, defendant also ordered Daniel to "take
off." A high speed chase ensued which ended with a crash.
The two men were arrested at the crash site.
Kassandra was discovered in the wreckage wedged beneath the
glove compartment. She was pried from the car, semi-
conscious, hysterical, and unable to walk.
Defendant testified that he was not involved in
either of the carjackings, but had unwittingly climbed into
the back seat of Kassandra's Mitsubishi, unarmed, just before
the police chase. By "sheer happenstance," he claims, the
real carjackers (Daniel and an unidentified second man) must
-4-
have interrupted their crime spree at the same time and place
(the housing project) where defendant had gone to buy drugs.
Allegedly without any knowledge of the crimes, nor the
existence of the presumed real second carjacker, defendant
must have unwittingly switched places with the real second
carjacker -- joining Daniel in the Mitsubishi for the sole
purpose of shooting-up drugs.
Defendant theorizes that Daniel's testimony was a
fabrication designed to inculpate defendant in a rape which
Daniel himself had perpetrated -- and that both Kassandra and
Nancy were mistaken in their identifications of defendant.
(1) Alleged Perjury (1) Alleged Perjury
Defendant asks this court to infer that Daniel's
testimony was perjured -- and that the prosecution knew it --
as shown by inconsistencies between Daniel's testimony and
that of the complaining witnesses; Daniel's own prior
inconsistent statements, confessed lies in other cases, and
prior criminal convictions. A knowing presentation of
perjured testimony by the prosecution violates a defendant's
right to due process. See United States v. Tavares, 93 F.3d
10, 14 (1st Cir.) (citations), cert. denied, 117 S. Ct. 373
(1996).
However, "it is axiomatic that inconsistent
testimony is not per se perjurious." United States v. Gary,
74 F.3d 304, 314 (1st Cir.), cert. denied, 116 S. Ct. 2567
-5-
(1996); see also United States v. Lebon, 4 F.3d 1, 2 (1st
Cir. 1993). Nor is perjury conclusively shown here by adding
to the mix the circumstantial evidence that Daniel lied
before and engaged in other acts of dishonesty.
Defendant did not ask the trial court to make a
finding of perjury. "We decline his invitation that we now
find wilful intent to provide false testimony based on no
more than . . . inconsistenc[ies]" and character evidence.
Tavares, 93 F.3d at 14.
(2) Motion to Suppress the Identifications (2) Motion to Suppress the Identifications
Defendant challenges the denial of his motion to
suppress the complaining witnesses' line-up identifications
of him, and presumably the admissibility of their later in-
court identifications, as tainted by a prior show-up and
suggestive conditions at the line-up. Identifications made in
circumstances that are so impermissibly suggestive as to give
rise to "a very substantial likelihood of irreparable
misidentification" are not admissible in keeping with due
process. Bouthot v. United States, 878 F.2d 1506, 1514 (1st
Cir. 1989) (quoting Simmons v. United States, 390 U.S. 377,
384 (1968)).
Defendant claims that (1) Kassandra's
identification was impermissibly tainted because Kassandra
saw the defendant being taken by his keepers through a
hallway at the police station to the line-up room; and (2)
-6-
both of the complaining witnesses' line-up identifications
were tainted because defendant was distinctively clothed
(allegedly in a tee shirt and blue jeans), and his face was
swollen, bruised and bleeding. His version of the line-up
was supported by his wife, Sonia Maria Vazquez-Rosa
("Sonia"), who testified that she was in the police station
hallway and there saw her husband being led past Kassandra on
his way to the line-up, tee shirted and battered.
Other testimony about the line-up, however, was to
the contrary. Kassandra denied that the alleged accidental
show-up had occurred, as did the police officer who
accompanied Kassandra before and during the line-up. They
denied seeing any swelling, bleeding or bruising on the
defendant's face. His clothing, they said, was substantially
the same as that of the other participants, including an
identical over-the-trousers collared shirt supplied to all
participants by the police. Contemporaneous police
photographs corroborated this version of the line-up.
The district judge found, as fact, that the alleged
accidental show-up had not occurred; and that defendant's
face was not impermissibly marked nor his appearance
otherwise suggestive. The findings reflect a "reasonable
view of the evidence," and incorporate credibility
determinations which are necessarily entitled to special
deference by an appellate tribunal. United States v. De
-7-
Jesus-Rios, 990 F.2d 672, 676 (1st Cir. 1993); see also
Bouthot, 878 F.2d at 1513-14 n.8.
Seeing no ground for disturbing the court's factual
determination that the identification procedure was not
impermissibly suggestive, we need not reach the second prong
of the due process issue, i.e., the likelihood of
misidentification. See United States v. Guzman-Rivera, 990
F.2d 681, 682 (1st Cir. 1993). In any event, as discussed
below and in the margin, the victims' identifications were
reliable in light of the relevant second-prong factors.1 1
(3) Sufficiency of the Evidence (3) Sufficiency of the Evidence
Defendant argues that there was insufficient
evidence to identify him as a participant in the crimes, at
least in the absence of Daniel's (allegedly perjured)
testimony. The argument is faulty for two reasons.
First, Daniel's testimony, though inconsistent in
part with the other eyewitnesses, was not incredible. His
credibility was subjected to sustained and searching cross-
examination. The jury was instructed on the possibility of
1As applied in this case, the second-prong factors set 1 forth in De Jesus-Rios, 990 F.2d at 677, show: (1) Each of
the complaining witnesses had an opportunity during the crime to view the defendant at close range, (2) both testified that their gazes were fixed on defendant during those moments, (3) their descriptions to the police, while vague and omitting defendant's moustache, were consistent with defendant's appearance, (4) both identified the defendant with certainty, and (5) the line-up was held within 24-36 hours after the crime.
-8-
problems with testimony of this type. The choice was for the
jury, not for this court. See United States v. Laboy-
Delgado, 84 F.3d 22, 27 (1st Cir. 1996).
Second, and in any event, defendant was positively
identified in court by both of the complaining witnesses as
an armed and violent participant in the carjackings. Despite
gaps in each witness's ability to see during the respective
crimes, each identification had a substantial foundation and
was corroborated by other evidence.
Nancy testified that she first saw the defendant
only briefly, as he entered her car. She then saw his face
clearly in the car light for several minutes as he raped her.
A piece of paper found in Nancy's purse, which was retrieved
after the crime from her car, bore the defendant's
fingerprint.
Nancy's testimony also corroborated the
identification of defendant as the back-seat carjacker of
Kassandra's vehicle. As defendant drove away in another car,
Nancy testified, he reminded her of his threats against her
child, and told her to call him on the telephone beeper which
he had stolen from her. Substantially the same words were
overheard by Kassandra, shouted from her car window by the
second of her car's invaders (whom she could not yet see).
Kassandra then heard this second carjacker's voice
continuously, enabling her to testify with certainty that it
-9-
was he who had initially climbed over her crouched body into
the back seat of her car, held a gun to her ribs, and then
exited and reentered the vehicle at the housing project.
During this stop, she said, too, the back-seat carjacker
stood right next to the car, his body continuously in her
line of sight. True, she first saw defendant's face, and
gun, only when the police chase began. But defendant spoke
then, too, and she saw the face connected to this voice at
close range, in good lighting, and with fixed attention.
To be sure, cross-examination revealed that each of
the complaining witnesses was extremely frightened during the
crime, and still upset at the time of the line-ups. Their
respective opportunities to see the carjackers had been
limited by darkness and the twisted postures they had been
forced to assume on the passenger seats of their automobiles.
In addition, each gave only a general description of the
culprits when first questioned, and each testified that the
first carjacker to approach her car was partly masked by a
tee shirt pulled up over his mouth and nose. Nancy even
admitted that she never saw the first carjacker's face, and
was not at all able to identify Daniel.
These were good arguments, offered to the jury in
an attempt to cast doubt on the credibility of the victims'
identifications. In addition, defendant challenged the
scientific evidence, pointing out that much of it was
-10-
inconclusive, and someone else might have wrongly transported
his fingerprint to Nancy's car. And he elicited substantial
testimony which tended to impeach Daniel's credibility.
Having heard all of the evidence, however,
including defendant's own testimony, the jury convicted the
defendant. Viewed in the light most favorable to the
verdict, there was more than ample reliable identification
evidence which "would allow a rational jury to determine
beyond a reasonable doubt that the defendant [was] guilty as
charged." United States v. Sullivan, 85 F.3d 743, 747 (1st
Cir. 1996) (quoting United States v. Mena-Robles, 4 F.3d
1026, 1031 (1st Cir. 1993)), cert. denied, 114 S. Ct. 1550
(1994); see also Guzman-Rivera, 990 F.2d at 682-83.
(4) Evidence of the Rape (4) Evidence of the Rape
Defendant also assigns as error the rejection of
his motion to exclude evidence of the rape; arguing that rape
is not an "element" of the offense, but only a sentencing
enhancement issue. We have travelled this road before, and
rejected similar arguments under this statute. See United
States v. Cruz-Kuilan, 75 F.3d 59, 60-61 (1st Cir. 1996)
(finding proof of victim's death admissible to show a taking
by force and violence); United States v. Rivera-Gomez, 67
F.3d 993, 995 (1st Cir. 1995) (finding proof of death
admissible to show use of force and violence, although death
is not an independent element of offense); United States v.
-11-
Rivera, 83 F.3d 542, 545 (1st Cir. 1996) (upholding
admissibility of evidence of rape which provided a "crucial
chapter" in narrative of events and critical proof of
possession of a weapon).
Of course, in and of itself, a rape is not an
essential element of the crime of carjacking as defined in
the Anti Car Theft Act, 18 U.S.C. 2119 (1992).2 See 2
Rivera-Gomez, 67 F.3d at 996 (defining statutory elements).
However, if a carjacker chooses rape as the means of "force,"
"violence," or "intimidation" by which to seize control of a
vehicle, it amounts to the same thing.
In this case the prosecution showed that Nancy's
car was first taken from her by intimidation with a gun, not
2 The 1992 statute provides: 2
Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been . . . in interstate or foreign commerce from . . . the person of . . . another by force and violence or by intimidation, or attempts to do so, shall -- (1) be fined . . . or imprisoned not more than 15 years or both (2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both . . . .
The statute has since been amended. In 1994, Congress substituted "with intent to cause death or serious bodily harm" for "possessing a firearm as defined in section 921." In October, 1996, Congress clarified subsection (2) by expressly providing that "serious bodily injury" also includes sexual assaults violative of 18 U.S.C. 2241, 2242.
-12-
by rape. The later rape, nonetheless, accompanied by a
veiled threat to do the same to her daughter, terrorized
Nancy into complying with the carjackers' command that she --
with her car -- remain stationery for some time at the spot
where the carjackers left them. Thus the rape, like the
earlier brandishing of the gun, provided the intimidation by
which the carjackers extended their control of the victim and
her automobile. Compare Rivera, 83 F.3d at 545 (holding
evidence of a rape admissible on other issues, but not
essential to prove a taking by "force and violence," where
the rape was not instrumental in the taking nor retention of
the car).
Evidence of the rape was of critical relevance, in
any event, to the jury's understanding of Nancy's
identification of the defendant. And it provided a "crucial
chapter" in the narrative that linked the defendant to the
second carjacking. Rivera-Gomez, 67 F.3d at 997. Given the
value of this evidence as directly probative of two elements
of the offense, the court did not abuse its discretion under
Fed. R. Evid. 403 in admitting it, despite any risk of unfair
prejudice. Id. at 996. "Though lurid, it is part of what
old-fashioned lawyers might call the res gestae." Id. at
998.
Sentencing Sentencing
-13-
The court sentenced defendant to 420 months'
imprisonment: 360 months (concurrent terms) for the
carjackings charged in Counts One and Two, and a mandatory
consecutive 60-month term for the firearms violation charged
in Count Three. The concurrent carjacking sentences exceed
the statutory maximum.
Under the guidelines, the carjacking sentences were
calculated as follows. The base offense level, under USSG
2B3.1, for each carjacking count was 20. Six sets of
enhancements were added to each count, bringing the offense
level for Count One to 35, and for Count Two to 33. Since
these were "non-groupable offenses," applying USSG 3D1.4(a),
the court added two levels, bringing defendant's total
offense level for the two carjackings to 37. With a Category
I criminal history, this produced a guideline range for the
carjackings of 210-262 months. The court then departed
upward under USSG 5K2.3, and Application note 2 to USSG
2K2.4, arriving at the 360-month (concurrent) sentence.
However, as the government concedes on appeal, the
statutory maximum term for the Count One carjacking (Nancy's
car) is 300 months. See 18 U.S.C. 2119(2). On Count Two,
(Kassandra's car), the maximum is 180 months. See 18 U.S.C.
2119(1). Concurrent terms for the carjackings were clearly
intended by the court, and so specified. Thus the sentence
on Counts One and Two should have been capped at the
-14-
statutory maximum for the highest count of conviction, or 300
months. See USSG 5G1.2(b)(c). Adding the 60-month
mandatory consecutive sentence under 18 U.S.C. 924(c)),
produces a total allowable term of imprisonment for all three
counts of 360 months.
We reject defendant's other assignments of error at
sentencing for the following reasons.
(1) Two-level Enhancement for Perjury: There was (1) Two-level Enhancement for Perjury
no clear error in the court's finding that defendant
intentionally attempted to obstruct justice by falsely
denying any involvement in the two carjackings and the rape.
See USSG 3C1.1; United States v. Tracy, 36 F.3d 199, 201
(1st Cir.), cert. denied, 513 U.S. 1031 (1994).
Defendant theorizes that his testimony may not
have been deliberately false but, since he is a drug addict,
the product of confusion, mistake, or faulty memory.
However, at trial he unequivocally testified to an alibi,
claiming to remember even the television programs he was
watching in his home at the time of the crimes. He
reiterated the alibi in his post-trial statement to the
probation officer. Given the several eyewitnesses who
instead placed him at the crime scenes, as well as the
fingerprint evidence, there was ample factual support for the
district court's finding. See United States v. Dunnigan, 507
U.S. 87, 95 (1993).
-15-
(2) Two Level Enhancement for Reckless Endangerment (2) Two Level Enhancement for Reckless Endangerment
During Flight: There was no clear error in the court's During Flight
finding that the high speed chase, along crowded roads,
created a substantial risk of death or bodily injury to
others, and actually resulted in bodily injury to Kassandra.
See USSG 3C1.2.
Defendant argues that as a back-seat occupant, he
was not in control of the vehicle. However, there was ample
support for the court's finding that defendant ordered Daniel
to "take off," and otherwise aided and abetted Daniel
throughout the chase.
(3) Loss Exceeding $10,000: There is no clear (3) Loss Exceeding $10,000
error in the court's findings that the loss to each victim,
including the value of their respective automobiles, exceeded
$10,000. Defendant's challenges in this regard are
frivolous. See USSG 2B1.1, comment. (n.2).
(4) Serious Bodily Injury: The court's (4) Serious Bodily Injury:
determination that Nancy suffered "serious bodily injury" due
to a protracted impairment of her mental faculties triggered
the twenty-five year maximum term of imprisonment on Count
One. See 18 U.S.C. 2119(2).3 In calculating defendant's 3
3 The statute incorporates the definition of "serious 3 bodily injury," found in 18 U.S.C. 1365(g)(3), i.e., injury involving "(A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ or mental faculty . . . ."
-16-
guideline sentence, the court imposed a four-level
enhancement for "serious bodily injury" under USSG
2B3.1(b)(3), and departed upward under USSG 5K2.3.
The decision to apply the statutory penalty range
provided in 18 U.S.C. 2119(2), was amply supported by
evidence adduced at the sentencing hearing. Psychiatric
reports showed that as a result of the crime Nancy was
diagnosed with post-traumatic stress disorder and major
depression. Due to the mental trauma inflicted by the crime,
she attempted suicide at least twice, suffered auditory
hallucinations, and was hospitalized for psychiatric
treatment. She was forced to discontinue her career as a
pharmacist, had become emotionally distant from her children,
and dependent on her mother. The medical prognosis is that
she will require additional psychotherapy, hospitalizations,
and medical intervention for the rest of her life.
Defendant misplaces reliance on United States v.
Rivera, 83 F.3d 542 (1st Cir. 1996). In Rivera there was no
finding of protracted mental injury, and inadequate evidence
to sustain a finding that the victim had suffered "extreme
physical pain," as defined by the statute. Id. at 547. By
contrast here, the court found that as a result of the crime
Nancy will suffer a lifetime impairment of her mental
-17-
faculties. See 18 U.S.C. 1365(g)(3)(D). It should also be
noted that subsequent to the Rivera case, Congress enacted
the Carjacking Correction Act of 1996, which amended the
definition of "serious bodily injury" to include rape and
sexual abuse.
The court's factual finding was amply supported by
evidence in the PSR and medical reports. There was no abuse
in the refusal to require live testimony. "Sentencing
hearings are not meant to be mini-trials." United States v.
Robles-Torres, 109 F.3d 83, 86 (1st Cir. 1997) (citation
omitted).
As to the guidelines calculation, the court did not
exhaust its enhancement power under 2B3.1, by imposing a
four level increase for Nancy's "serious bodily injury."4 4
The finding that Nancy will suffer a lifetime of mental
illness could have been factored into the sentence as a six-
level enhancement for "permanent" bodily injury.5 Instead, 5
factoring in the permanency of the injury as an upward
4"Serious bodily injury" is defined in the sentencing 4 guidelines to mean "extreme physical pain or the impairment of a function of a bodily member, organ or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation." USSG 1B1.1 comment. (n.1(j)).
5"Permanent or life-threatening bodily injury" includes 5 "loss or substantial impairment of the function of a . . . mental faculty that is likely to be permanent." USSG 1B1 comment. (n.1(h)).
-18-
departure under USSG 5K2.3, p.s., did not amount to "double
counting."
Defendant also fails to demonstrate that the court
abused its discretion in deciding that a lifetime of mental
illness is a "much more serious" injury than that "normally
resulting from commission of the offense" of carjacking.6 6
USSG 5K2.3, p.s. The court was not required to obtain
extrinsic "proof" of a comparatively "normal" level of
carjacking victims' injuries, but was entitled to rely on
other Guidelines cases and its superior knowledge of the
facts. Koon v. United States, 116 S. Ct. 2035, 2038 (1996);
United States v. Rivera, 994 F.2d 942, 952 (1st Cir. 1993).
(5) Upward Departure Under USSG 2K2.4, comment. (5) Upward Departure Under USSG 2K2.4, comment.
(n.2) (n.2)
Defendant argues that the court erred in applying
Application note 2 to USSG 2K2.4, which permits an upward
departure to compensate for the possible anomalous result of
an offender receiving a lighter guidelines sentence for an
underlying offense (carjacking) when he is also convicted of
a firearms offense under 924(c), than if he was convicted
solely of the underlying offense.
6Defendant mistakenly assumes that the court should have 6 compared the victim's mental trauma to that "normally" experienced by victims of rape. The offense charged was carjacking; the use of rape as a means to control and terrorize the victim contributed to the unusual degree of mental injury inflicted on the victim as a result of the charged offense.
-19-
Defendant misapprehends the guideline. In
calculating the sentencing range for the carjackings, the
court properly refrained from assessing a five level
enhancement for the brandishing of a firearm during the
offense. See United States v. McCarthy, 77 F.3d 522, 536
(1st Cir. 1996), cert. denied, 117 S. Ct. 479, 771 (1997).
This resulted in a guideline range for the carjackings of
210-262 months. Adding the mandatory 60-month consecutive
sentence for the violation of 18 U.S.C. 924(c), produced a
total sentence of only 322 months. By contrast, had there
been no separate count of conviction under 18 U.S.C.
924(c), the enhancement for brandishing the weapon would have
increased the guidelines calculation of the carjacking
sentence alone to a level of 42, (360 months to life). This
computational anomaly justified an upward departure --
subject, of course, to an adjustment for the statutory
maximum.
Defendant's opposite reading of Application note 2,
as requiring a decrease in the maximum penalty for the
carjackings to offset the 60-month consecutive sentence for
the firearms offense,7 also ignores the court's broad 7
7This interpretation may be rooted in a mistaken 7 understanding of the double jeopardy clause. While defendant does not directly argue the point here, in a previous appeal he argued that the firearms charge should be dismissed before trial because it violated the prohibition against multiple punishment. The earlier appeal was dismissed on jurisdictional grounds. United States v. Ramirez-Burgos, 44
-20-
discretion. That a district court may consider lowering a
guidelines sentence to offset a consecutive statutory minimum
in some circumstances does not mean that it is required to do
so. United States v. Webster, 54 F.3d 1, 4 (1st Cir. 1995).
In sum, there was no abuse of discretion in the two
upward departures. Both were well explained and grounded in
record facts. See United States v. Twitty, 104 F.3d 1, 2
(1st Cir. 1997); United States v. Quinones, 26 F.3d 213 (1st
Cir. 1994). While the court did not separately specify the
extent of each, the oversight was harmless. But for the
statutory maximum, a five-level increase was warranted under
the Application note to 2K2.4 alone, bringing the penalty
range to 360 months to life.
F.3d 17 (1st Cir. 1995); see also United States v. Stoller,
78 F.3d 710, 715 & n.2 (1st Cir. 1996) (indicating uncertainty about the continued vitality of the jurisdictional ruling), cert. dismissed, 117 S. Ct. 378
Double jeopardy's prohibition against multiple punishments, however, only prevents the imposition of a stiffer sentence than the legislature intended. United
States v. Page, 84 F.3d 38, 41 (1st Cir. 1996). Congress
clearly intended that a term of incarceration under 924(c) should be in addition to the punishment provided in 18 U.S.C. 2119. See United States v. Centeno-Torres, 50 F.3d 84, 85
n.2 (1st Cir.) (citing additional cases), cert. denied, 116
S. Ct. 208 (1995); cf. United States v. Gonzales, 513 U.S.
132, --- (1997) (observing that Congress "has made clear its desire to run 924(c) enhancements consecutively to all other prison terms, [even] regardless of whether they were imposed under firearms enhancement statutes similar to 924(c).").
-21-
However, since the statutory maximum for the
highest count of conviction on the carjackings is 300 months,
we must vacate so much of the sentence as reflects a higher
concurrent term for Counts One and Two. The mandatory
consecutive 60-month sentence for the firearms offense brings
the permissible total sentence for all three counts to 360
months.
The judgment of conviction is affirmed. The
sentence on Counts One and Two is vacated and remanded to the
district court with directions that the court enter a
sentence in accordance with this decision. In all other
respects, the sentence is affirmed.
-22-