United States v. Rivera-Rivera

555 F.3d 277, 2009 U.S. App. LEXIS 2283, 2009 WL 294798
CourtCourt of Appeals for the First Circuit
DecidedFebruary 9, 2009
Docket05-2495, 05-2498
StatusPublished
Cited by40 cases

This text of 555 F.3d 277 (United States v. Rivera-Rivera) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rivera-Rivera, 555 F.3d 277, 2009 U.S. App. LEXIS 2283, 2009 WL 294798 (1st Cir. 2009).

Opinions

[280]*280HOWARD, Circuit Judge.

Appellants José Rivera-Rivera (“Rivera”) and Ramón Sánchez-Rosado (“Sanchez”) were convicted on three counts stemming from the armed robbery of a lottery ticket business in Caguas, Puerto Rico. Rivera was sentenced to 415 months’ imprisonment — more than 34 years — and Sánchez was sentenced to 397 months— just over 33 years. Both sentences included a mandatory minimum term of 25 years for the use of a firearm in relation to a violent federal felony after a previous conviction for the same offense. See 18 U.S.C. § 924(c)(1)(C)(i). By statute, the 25-year term was required to be imposed consecutively to any other sentence. The appellants challenge both their convictions and their sentences. They claim two trial errors: (1) the key witness’s in-court identification was tainted by unnecessarily suggestive pretrial encounters, and (2) the government failed to meet its burden of proving that the robbery affected interstate commerce. They also assert multiple flaws in their sentencing, including that the court improperly imposed the 25-year mandatory minimum based on facts not found by the jury beyond a reasonable doubt. We affirm.

I. FACTUAL BACKGROUND

The facts of the robbery, as the jury could have found them, are as follows. Shortly after 8 a.m. on the morning of October 11, 2004, Carmelo Fonseca, the manager of the Muñiz Gallery, a small shopping mall in Caguas, opened both the front and rear entrances to the building, turned on the machines in the mail’s game center, and started walking toward the office of the lottery ticket business run by the Gallery’s owner, Félix Muñiz. At 8:20 a.m., before the mall was open for customers, two individuals entered the mall through the back entrance. They approached Fonseca and asked him where the lottery machines were located, and then each pulled out a gun. One of them “loaded [his] pistol and charged it,” and, after warning Fonseca “not to act like some tough guy, that they would shoot [him],” they directed Fonseca to take them to the lottery business office on the second floor. Although the men told Fonseca not to look at them, he testified that he did not comply and that “every time I had a chance, I looked at them.” Fonseca reported that one of the individuals was wearing a white shirt and the other wore a black shirt. On direct examination, Fonse-ca indicated that both men were wearing sunglasses and hats. On cross-examination, he testified that one of them was wearing dark glasses and the other was wearing a hat. One of the men was carrying a black plastic bag of the type used by retail stores.

Meanwhile, across the hallway from where the three men were having their initial conversation, Dr. Johanna Loyola, an optometrist who had just arrived at her office, noticed the young men with Fonseca and saw that one had a pistol. She immediately called 911 to report a robbery, describing the perpetrators as young men with dark glasses and caps, and also shouted to the mail’s maintenance employee, Maria, to get help because Fonseca was being robbed. In her phone call to the police, Loyola stated that one of the men did not seem tall, but looked strong.

Maria found a municipal police officer, Juan Soto, outside the mall. Soto went in through the back entrance, which he closed, proceeded to the front of the building, and padlocked the front door. He then called for backup. By this time, the two robbers had taken Fonseca upstairs, where he was forced to open the office safe. Because he was nervous, Fonseca made several attempts before he success[281]*281fully opened the combination lock. The men then ordered him to get face down on the floor, and they tied his arms and legs with black ties taken from the black bag. They took a cash box containing $8,770 from the safe, and a gun and photographs from Muniz’s desk.

Outside the building, Puerto Rico Police Department officers and municipal officers, including Soto and Caguas officer Eliseo Martinez, had gathered in response to Soto’s request for backup and Loyola’s call. Soto removed the padlock from the front door and prepared to enter the building. He and Martinez testified that they could see two individuals in the vicinity of Muñiz’s office. One wore blue jeans and a white t-shirt, had on dark glasses and was carrying a black bag with shiny lettering; the other wore a black shirt and blue jeans and was holding a fisherman’s cap in his right hand. Ignoring Soto’s order to halt, the men walked to the end of the hallway, found the back door closed, and then walked back down the hallway trying the doors of the businesses they passed. None were open, and the pair went into the men’s restroom at the end of the hall. As they entered the bathroom, they lifted their shirts, and Soto saw pistol butts in their waistbands. The two men — defendants Sánchez and Rivera — came out several minutes later, at which point Martinez arrested them.

In a trash can in the bathroom, Soto found the black bag with the shiny letters, which contained some dollar bills; a metal box; the fisherman’s cap he had seen one of the men holding; some black straps; and a .38-caliber revolver belonging to Muñiz. Soto also found two loaded pistols inside a towel dispenser.

Fonseca was released by a municipal police officer and shortly thereafter saw Martinez escorting the defendants, in handcuffs, out of the building. Fonseca testified that he immediately recognized them as the robbers. He saw the defendants again about an hour later at the Caguas municipal police station, where he had gone to file charges. Fonseca testified that he happened to notice them as they walked back and forth inside a holding cell. On cross-examination, Fonseca stated that he also saw them in two locations at the courthouse where the defendants’ preliminary hearing was held: in a cell at the district attorney’s office and then “standing in front of the judge.” Soto testified that Fonseca also saw the defendants briefly as they were being moved from the police station to the patrol car to be transported to the courthouse.

Charges originally were brought against Sánchez and Rivera under local law, but they were later dismissed and the men were charged in a three-count federal indictment. Count One alleged that the defendants aided and abetted each other in committing an armed robbery affecting interstate commerce in violation of the Hobbs Act, 18 U.S.C. §§ 1951(a) and 2. Count Two charged the use of a firearm in connection with the robbery, in violation of 18 U.S.C. §§ 924(c)(l)(A)(ii) and 2. Count Three charged defendants with being felons-in-possession of a firearm, in violation of 18 U.S.C. §§ 922(g)and 924(a)(2), and alleged that they had been convicted in 1998 for an armed bank robbery.

At trial, Fonseca was asked if the men who robbed him were in the courtroom, and he identified the defendants.

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Bluebook (online)
555 F.3d 277, 2009 U.S. App. LEXIS 2283, 2009 WL 294798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rivera-rivera-ca1-2009.