United States Court of Appeals For the First Circuit
No. 20-1035
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE L. RODRÍGUEZ-SANTOS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Gelpí, Lipez, and Thompson, Circuit Judges.
Jose R. Gaztambide-Añeses for appellant. Jonathan L. Gottfried, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Robert P. Coleman III, Assistant United States Attorney, were on brief, for appellee.
December 29, 2022 LIPEZ, Circuit Judge. Jorge Rodríguez-Santos was
convicted of aiding and abetting (1) a carjacking resulting in
death (Count One), (2) kidnapping resulting in death (Count Two),
and (3) the use of a gun during a crime of violence resulting in
murder (Count Three). He appeals his conviction, arguing that the
evidence was insufficient on all counts and that the district court
erred by failing to provide a duress instruction to the jury. He
also contends that his conviction for aiding and abetting the use
of a gun during a crime of violence must be vacated in light of
the Supreme Court's decision in United States v. Davis, 139 S. Ct.
2319 (2019). Finally, he challenges two aspects of his sentence.
We affirm.
I.
Because this appeal concerns, in large part, a
sufficiency of the evidence challenge, "we recount the facts in
the light most favorable to the verdict." United States v.
Paz-Alvarez, 799 F.3d 12, 18 (1st Cir. 2015). They are shocking.
At approximately 5:00 PM on October 10, 2015, Maria Luisa
Mayol-Rivera, driving a white Mitsubishi Lancer, pulled up outside
the home of Melissa Cartagena-Vives and Ricardo Pagan-Rodríguez in
Ponce, Puerto Rico. Cartagena-Vives and Pagan-Rodriguez were
working on a car when Mayol-Rivera arrived. When she approached
the car, Cartagena-Vives saw that Mayol-Rivera was upset, her mouth
was split, her face was covered in blood, and she was drunk.
- 2 - Seeing Mayol-Rivera's distress, Cartagena-Vives offered
to call the police, but Mayol-Rivera declined. Instead, as
Cartagena-Vives described, Mayol-Rivera requested "help to catch
the guys [who had] taken her phone from her and . . . beat her
up." Enidza Marie Rodriguez-Figueroa, another witness who had
been outside with Cartagena-Vives, testified that Mayol-Rivera was
scared and had stated that the "guys" -- presumably those who had
beaten her -- "were going to burn her inside the vehicle."
After attempting to aid Mayol-Rivera for several
minutes, Cartagena-Vives received a call on her cell phone. She
recognized the voice of Luis Miguel Jiminez-Medina ("Luis
Miguel"), whom she also saw standing on a nearby hill, holding a
weapon. 1 Luis Miguel threatened her and warned her to get
Mayol-Rivera out of the area because she was a federal agent.
After Cartagena-Vives hung up, she saw him fire a single shot --
at what target is unclear -- before leaving the hill.
Not long after, a blue Dodge truck arrived outside of
Cartagena-Vives's home carrying three men: Luis Miguel, Tito
Bodon, and Rodríguez-Santos, the defendant. Bodon was driving,
Rodríguez-Santos was in the front passenger seat, and Luis Miguel
was seated in the back. Rodríguez-Santos ordered Luis Miguel to
It is unclear from the record how Cartagena-Vives recognized 1
Luis Miguel's voice and, in general, whether the witnesses at Cartagena-Vives's house had any prior relationship with Mayol-Rivera or her abductors.
- 3 - "[g]et out and move" when they arrived. Luis Miguel and
Rodríguez-Santos then got out of the truck. Mayol-Rivera started
screaming that these were the men who had beaten her and threw a
bottle of liquor at their truck. Rodríguez-Santos approached
Mayol-Rivera, who was standing by her car, grabbed her, and dragged
her toward her car by her hair, pulling so hard that he "moved her
face back." He then hit her, slammed her face against her car
mirror, and ordered her to get in the car. She was screaming at
him to let go of her. He then gave her to Luis Miguel, urging him
to "move it" and get into the backseat with Mayol-Rivera. Luis
Miguel then also hit her, "grabbed hold of her[,] and put her
inside her car in the back." After getting Mayol-Rivera into the
back seat, Luis Miguel got into her car with a tank of gasoline.
Both vehicles then left the scene -- Rodríguez-Santos drove
Mayol-Rivera's car away, with Luis Miguel and Mayol-Rivera in the
back seat.
That evening, at approximately 10:00 PM, the Puerto Rico
Police Department received an anonymous call reporting a person
and a vehicle on fire in Rio Chiquito. A homicide investigator
went to the scene and discovered a burned Mitsubishi Lancer and,
across the road, a burned body. From the vehicle's license plate
number, the police were able to trace the car to Adriana
Pou-Porrata. Pou-Porrata explained that she had lent the car to
Mayol-Rivera, who had been staying at her house. A forensic dental
- 4 - examination later confirmed that the body found on the side of the
road was Mayol-Rivera.
Investigators found gasoline on Mayol-Rivera's clothing,
five 9mm bullet casings under her body, and nine .40-caliber bullet
casings in an area nearby. The autopsy confirmed that
Mayol-Rivera died as the result of three gunshots to the head,
which occurred before her body was burned. She also appeared to
have sustained a gunshot to her left arm, and also exhibited first,
second, third, and fourth-degree burns covering her entire body.
The morning after Mayol-Rivera's murder,
Rodríguez-Santos dropped off his truck with a local mechanic,
Antonio Rosado-Colón. He asked Rosado-Colón to fix a hole in the
door of his truck and told him the hole had been caused by rebar,
a steel rod. Rodríguez-Santos returned that afternoon to pay for
the repairs and pick up the truck.
The police subsequently used security camera footage and
Google maps to trace the route of Mayol-Rivera's car, the
Mitsubishi Lancer, to the crime scene. They identified a blue
Dodge truck driving with the Lancer to the scene and traced the
truck to Rodríguez-Santos. Security footage also showed the blue
Dodge truck returning along the same road twenty minutes later,
without the Lancer. Investigators went to Rodríguez-Santos's
home, where he allowed them to take his truck for analysis. That
- 5 - analysis revealed a perforation caused by a bullet in one of the
door panels.
A federal grand jury indicted Rodríguez-Santos on three
counts: aiding and abetting a carjacking resulting in death, 18
U.S.C. § 2119, aiding and abetting a kidnapping resulting in death,
18 U.S.C. § 1201(a)(1), and aiding and abetting the use of a
firearm during a crime of violence resulting in murder, 18 U.S.C.
§ 924(c)(1)(a), (j)(1).
At the five-day trial, Rodríguez-Santos testified that
he participated in the events leading to Mayol-Rivera's murder
only under duress. Specifically, he offered the following
account. On the evening of October 10th, he was getting into his
truck in the La Coqui ward after buying a drink when he was accosted
by Tito Bodon and a masked man (whom he later identified as Luis
Miguel). The men took control of Rodríguez-Santos's truck at
gunpoint. A third man, identified only as "Chewi," approached the
truck and entered on the passenger side. The three men then put
a bag over Rodríguez-Santos's head and drove away with his truck,
with him as a passenger.
When the truck eventually stopped, Luis Miguel got out,
grabbed Mayol-Rivera, and put her in a car (ostensibly her
Mitsubishi Lancer). Both vehicles then drove away but stopped
again when Chewi got out to retrieve a red gas tank from a different
vehicle before they continued on. Finally, the vehicles stopped
- 6 - and Bodon ordered Rodríguez-Santos to get out and kneel on the
truck's running board. Rodríguez-Santos saw the men pour gasoline
over the white car and set it on fire. Bodon shot Mayol-Rivera,
and Chewi poured gasoline on her body. However, the men decided
not to kill Rodríguez-Santos. Instead, they drove him back to the
La Coqui ward in his truck. Before getting out of his truck, the
men told Rodríguez-Santos they would kill him if he ratted them
out and also threatened his mother. The next morning, Bodon and
Luis Miguel showed up outside Rodríguez-Santos's home and took him
to get the bullet hole in his truck repaired.
The jury did not credit Rodríguez-Santos's story, and he
was convicted on all counts. Defense counsel filed a Rule 29
motion, arguing that the evidence was insufficient on each count,
which the district court denied. The district court then
sentenced Rodríguez-Santos to concurrent terms of life
imprisonment for the aiding and abetting in carjacking and
kidnapping counts, and a life sentence for the firearm count, to
be served consecutively to the other terms.2 The district court
also applied a sentencing enhancement for obstruction of justice
because "Mr. Rodríguez deliberately gave false testimony during
trial." This appeal followed.
2 The other men involved with this crime are either dead or imprisoned. Bodon died on September 18th, 2016, and Chewi has been dead since December 21st, 2017. Luis Miguel has been in custody since 2018.
- 7 - II.
A. Sufficiency of the Evidence
Rodríguez-Santos argues that the evidence presented at
trial was insufficient to warrant a conviction on any count.
Because his appeal follows a guilty verdict, we "assess preserved
sufficiency claims de novo . . . reviewing the evidence, and making
all inferences and credibility choices, in the government's favor
-- reversing only if the defendant shows that no rational
factfinder could have found him guilty." United States v.
Rodríguez-Torres, 939 F.3d 16, 23 (1st Cir. 2019).
1. Carjacking
Count One charged Rodríguez-Santos with aiding and
abetting a carjacking resulting in death in violation of 18 U.S.C.
§ 2119. The elements of this offense are the "(1) taking or
attempted taking from the person or presence of another; (2) a
motor vehicle transported, shipped, or received in interstate or
foreign commerce; (3) through the use of force, violence, or by
intimidation; (4) with the intent to cause death or serious bodily
harm; (5) that results in death." United States v. Castro-Davis,
612 F.3d 53, 61 (1st Cir. 2010).
Rodríguez-Santos primarily focuses his argument on the
intent element, arguing that the record does not support a finding
that he had the intent to seriously injure or kill Mayol-Rivera
when aiding the carjacking. As Rodríguez-Santos was charged with
- 8 - aiding and abetting the offense, we must determine whether the
evidence indicates he "possessed -- or knew that the principals
possessed -- at least conditional intent to inflict death or bodily
harm at the time he and [the principals] took the car." United
States v. Evans-García, 322 F.3d 110, 114 (1st Cir. 2003). The
Supreme Court has explained that conditional intent for purposes
of the federal carjacking statute exists when "at the moment the
defendant demanded or took control over the driver's automobile
the defendant possessed the intent to seriously harm or kill the
driver if necessary to steal the car." Holloway v. United States,
526 U.S. 1, 12 (1999). In other words, the government can prove
conditional intent by showing that a defendant was willing to cause
bodily harm or death to accomplish the carjacking, which can be
proven, for example, simply by showing that violence or
intimidation occurred during the commission of the carjacking.
See id. at 6-7, 9-10. This is so because such actions show that
the defendant possessed the intent to harm or kill at the precise
moment the crime was committed. Id. at 6-7. There is ample
evidence in the record to support such a finding.
First, according to Rodriguez-Figueroa, one of the
witnesses, Mayol-Rivera stated that she was scared because, before
arriving in front of Cartegena-Vives's house, she had been beaten
and threatened that she would be burned inside her car. Later,
when Rodríguez-Santos and Luis Miguel arrived on the scene,
- 9 - Mayol-Rivera indicated that they were the men who had beaten her.
Second, witnesses described seeing Rodríguez-Santos hit
Mayol-Rivera, pull her by her hair toward her car, slam her face
into the car mirror, and hand her over to Luis Miguel, all while
she was screaming. Third, after Luis Miguel forced Mayol-Rivera
into the back of her car, a witness described seeing him get into
the car carrying a tank of gasoline before Rodríguez-Santos drove
them away. Fourth, later that evening, Mayol-Rivera was found
dead, having been shot several times before her body was burned.
We have found the requisite intent to inflict serious
bodily harm or death in circumstances much less violent than these.
For example, in United States v. Díaz-Rosado, 857 F.3d 116, 121-
22 (1st Cir. 2017), we concluded that evidence demonstrating that
the appellant struggled with the victim, "'push[ed] and shov[ed]'
her," "thr[e]w [her] onto the cement sidewalk," and then began
driving away with her car while the victim was attempting to get
her grandchild out of a car seat, was sufficient to indicate that
the appellant was willing to cause serious bodily harm in order to
complete the carjacking. We have also held that, while death
alone is not enough to satisfy the intent requirement, "[c]ommon
sense . . . dictates that the final act, at the very least,
evidences the intent." Castro-Davis, 612 F.3d at 63 n.13.
To state the obvious, the evidence here permitted "a
rational jury to conclude beyond a reasonable doubt that
- 10 - [Rodríguez-Santos and the other men were] willing to cause serious
bodily harm in order to abscond with [Mayol-Rivera]'s car." Díaz-
Rosado, 857 F.3d at 122. As we have described, several witnesses
identified Rodríguez-Santos as a key participant in the violent
scene that ended with Mayol-Rivera's car being driven away. These
witnesses also identified Rodríguez-Santos as the driver.
Moreover, the witness accounts of Mayol-Rivera's statements and
behavior during the incident suggest that Rodríguez-Santos had
participated in the violent beating she received before her arrival
at Cartagena-Vives's home. Taken together, these facts are
sufficient to permit the reasonable inference that
Rodríguez-Santos possessed, or at the very least knew that the
other men possessed, the intent to seriously injure or kill
Mayol-Rivera during the commission of the carjacking.
Finally, although it is unclear from the briefing if
Rodríguez-Santos challenges other elements of this count -- he
broadly states that there is no evidence of "actus reus"3 on any
count -- we briefly note that the evidence also supports the
remaining elements of the aiding and abetting in a carjacking
offense. Given the witness descriptions of the initial encounter
and the ultimate discovery of the burned car, it is evident that
3Actus reus is defined as the action or conduct which is a constituent element of a crime, as opposed to the mental state of the accused. See ACTUS REUS, Black's Law Dictionary (11th ed. 2019).
- 11 - Rodríguez-Santos, Luis Miguel, and Bodon were successful in
obtaining control of Mayol-Rivera's vehicle, satisfying the first
prong. As to the second prong, the parties stipulated to the fact
that the vehicle in question was shipped in interstate commerce.
Regarding the third prong, the above facts demonstrate that
Rodríguez-Santos used violent force in obtaining control of the
vehicle. And the final prong is satisfied by Mayol-Rivera's
murder immediately following the events described above. Viewing
the record in the light most favorable to the verdict, we conclude
that the evidence supports the conviction on Count One.
2. Kidnapping
Count Two charged Rodríguez-Santos with aiding and
abetting a kidnapping resulting in death. The federal kidnapping
statute, 18 U.S.C. § 1201, proscribes the actions of "any person
who: 'unlawfully seizes, confines, inveigles, decoys, kidnaps,
abducts, or carries away and holds for ransom or reward or
otherwise any person.'" United States v. Brown, 295 F.3d 152,
154-55 (1st Cir. 2002) (quoting 18 U.S.C. § 1201(a)). The statute
also provides that "if the death of any person results, [the
offender] shall be punished by death or life imprisonment." 18
U.S.C. § 1201(a). To prove this count, the government needed to
show that the defendant willfully aided and abetted the kidnapping.
See United States v. Simpson, 44 F.4th 1093, 1099 (8th Cir. 2022);
United States v. Urciuoli, 513 F.3d 290, 299 (1st Cir. 2008)
- 12 - (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938))
(explaining than an aider and abettor is one who "associate[s]
himself with the venture[] [and] participate[s] in it" and who
"seek[s] by his action to make it succeed."). However, the
government did not need to prove that Rodríguez-Santos knew in
advance that death would result from the kidnapping. See Simpson,
44 F.4th at 1099. Instead, the "death resulted" element only
required the government to prove that the kidnapping caused the
victim's death, but not that the individuals involved intended or
knew that death would result. See id. (citing United States v.
Barraza, 576 F.3d 798, 807 (8th Cir. 2009)). And "results," as
used in this context, "means that the kidnapping is a but-for cause
of the death." United States v. Ross, 969 F.3d 829, 838 (8th Cir.
2020), vacated in part, No. 18-2800, No. 18-2877, 2022 WL 4103064
(8th Cir. Sept. 7, 2022) (citing Burrage v. United States, 571
U.S. 204, 210-11 (2014)). In short, the government only needed
to show that the defendant by his actions aided in the kidnapping
that resulted in death. See Simpson, 44 F.4th at 1099.
Rodríguez-Santos argues that there is no evidence that
he aided and abetted a kidnapping because the government failed to
show that he intended to commit the kidnapping, that he had advance
knowledge of it, or that he facilitated the commission of the
offense. However, as we have noted, the record contains witness
testimony describing Rodríguez-Santos's active participation in
- 13 - Mayol-Rivera's kidnapping. See United States v. Campa, 679 F.2d
1006, 1010 (1st Cir. 1982) ("The government must prove some
affirmative participation by the aider and abettor."). The jury
heard testimony from witnesses who saw Rodríguez-Santos grab
Mayol-Rivera and hit her before getting into her car and driving
away, with her in the backseat. One witness described hearing
Rodríguez-Santos urging Luis Miguel to "move it" and get into the
backseat with a resisting Mayol-Rivera. The jury also heard that
investigators were able to trace the path of Mayol-Rivera's and
Rodríguez-Santos's vehicles to the crime scene where her body was
found.
Such evidence permits a reasonable inference that
Rodríguez-Santos was aware of the intended offense (the kidnapping
of Mayol-Rivera) and intended to assist Luis Miguel and Bodon in
carrying it out. See Rosemond v. United States, 572 U.S. 65, 78
n.9 (2014) ("In any criminal case, . . . the factfinder can draw
inferences about a defendant's intent based on all the facts and
circumstances of a crime's commission."). Simply put, viewing the
record in the light most favorable to the verdict, the evidence
indicates that Rodríguez-Santos, Luis Miguel, and Bodon threatened
and beat Mayol-Rivera, followed her car to Cartagena-Vives's home
in Rodríguez-Santos's truck, and then abducted her. Hence, we
readily affirm Rodríguez-Santos's conviction on the kidnapping
count.
- 14 - 3. Use of a Firearm in Relation to a Crime of Violence
Count Three charged Rodríguez-Santos with aiding and
abetting the use of a firearm in relation to a crime of violence,
18 U.S.C. § 924(c)(1)(A), here Mayol-Rivera's murder, id.
§ 924(j)(1). Section 924(j)(1) incorporates 18 U.S.C. § 1111,
which states that a murder "is the unlawful killing of a human
being with malice aforethought" and that a murder committed in the
course of a kidnapping or robbery is murder in the first degree.
The indictment listed both the carjacking and the kidnapping counts
as underlying crimes of violence to support Count Three.4 The
government's decision to list both counts as potential underlying
crimes of violence meant that evidence presented to prove the use
of a firearm was interwoven with the proof on the two prior counts.
On this final count, Rodríguez-Santos raises only one
sufficiency challenge. He argues that, as the indictment did not
charge him with premeditation as to Counts One or Two, Count Three
necessarily fails. He appears to draw this argument from United
States v. Catalán-Román, in which we described an indictment that
charged defendants with aiding and abetting the use of a firearm
in connection with a crime of violence "with premeditation." 585
F.3d 453, 474 (1st Cir. 2009). But Catalán-Román does not hold
4 Rodríguez-Santos raises a challenge to the "crime of violence" prong of this count in a later portion of his briefing. We follow suit and address only his sufficiency of the evidence arguments here.
- 15 - that premeditation is an essential element of a charge under 18
U.S.C. §§ 924(c)(1)(A) and (j)(1). Rather, we explained that "18
U.S.C. § 1111 'was intended to adopt the felony murder rule, and
for a stated felony the "malice" element is satisfied by the intent
to commit the unlawful felony.'" Id. (quoting United States v.
Morales-Machuca, 546 F.3d 13, 22 (1st Cir. 2008)). Thus, if there
was sufficient evidence that Rodríguez-Santos intended to aid in
the carjacking or the kidnapping, the "malice" element of Count
Three is satisfied. As we explained above, there is ample evidence
that he intended to aid in both the kidnapping and the carjacking,
so his sufficiency challenge to Count Three also fails.
B. Jury Instructions
Rodríguez-Santos argues that the district court erred
when it did not provide a jury instruction on duress. He admits
in his brief that he "did not disclose that he was going to employ
the duress defense during trial or move the district court for a
ruling on this subject prior to trial." On appeal, he has also
failed to identify any instance in the record where he requested
an instruction on the affirmative defense. His failure to seek a
duress instruction or to object to the given instructions renders
this argument unpreserved and thus subject to the rigorous plain
- 16 - error standard, which he cannot meet. 5 Teixeira v. Town of
Coventry, 882 F.3d 13, 16 (1st Cir. 2018).
To show plain error, Rodríguez-Santos must demonstrate
that the omission of a duress instruction was (1) "an error . . .
(2) which was clear or obvious and which not only (3) affected
[his] substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial
proceedings." United States v. Pennue, 770 F.3d 985, 989 (1st
Cir. 2014) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st
Cir. 2001)). There was no clear or obvious error in omitting the
duress jury instructions because there was no error at all in the
absence of a duress instruction.
To establish a duress defense, a defendant must
demonstrate that he "committed a crime as a result of: '(1) an
immediate threat of serious bodily injury or death, (2) a well-
grounded belief that the threat will be carried out, and (3) no
5 Rodríguez-Santos points to three Fifth Circuit decisions that he contends show that the trial court was obligated to sua sponte give a duress instruction to the jury. See Appellant's Br. at 63 (citing United States v. Posado-Rios, 158 F.3d 832 (5th Cir. 1998); United States v. Dixon, 413 F.3d 520 (5th Cir. 2005); United States v. Willis, 38 F.3d 170 (5th Cir. 1994)). While all of these cases relate to duress jury instructions, none of them support his entitlement to a duress instruction because, in all three cases, the defendant either requested a duress instruction before the district court or challenged the district court's proposed instructions. See Posado-Rios, 158 F.3d at 873-75; Dixon, 413 F.3d at 525; Willis, 38 F.3d at 174-176.
- 17 - reasonable opportunity to escape or otherwise to frustrate the
threat.'" United States v. González-Pérez, 778 F.3d 3, 13 (1st
Cir. 2015) (quoting United States v. Arthurs, 73 F.3d 444, 448
(1st Cir. 1996)). Rodríguez-Santos testified that he was forced
at gun point to allow Bodon, Luis Miguel and Chewi to take his
truck. The three men put a bag over his head and drove to
Cartagena-Vives's home, where he was ordered out of the truck so
the other men could get out, and then ordered back in. From the
truck, he watched Luis Miguel grab Mayol-Rivera and force her into
a car. Eventually both the truck (carrying Rodríguez-Santos) and
a car (carrying Mayol-Rivera) left and drove to the murder scene.
There, Rodríguez-Santos was ordered out of the truck and told to
kneel on the running board. He saw the men kill Mayol-Rivera and
set fire to her vehicle.
Such testimony fails to establish the elements of a
duress defense because, rather than explaining that he
participated in the charged crimes under threat, Rodríguez-Santos
denies that he participated at all. By his account, he was the
victim of a carjacking (of his own truck) and then was a mere
bystander to the carjacking of Mayol-Rivera's vehicle, the
kidnapping, and the use of a firearm to commit the murder. In his
briefing, Rodríguez-Santos argues he was "forcefully pressure[d]
to go along with the taking of the vehicle and the kidna[p]ping,"
- 18 - but he describes no conduct that he was forced to engage in beyond
simply being present at various crime scenes.
Because he failed to put forward any facts that could
satisfy the elements of a duress defense, the district court could
not have committed error in not giving the instruction even if it
had been requested. In sum, Rodríguez-Santos's argument that the
jury should have been instructed on the affirmative defense of
duress clearly fails the plain error standard because there was no
error at all.
C. Crime of Violence
Rodríguez-Santos argues that his conviction for aiding
and abetting the use of a firearm in connection with a crime of
violence under 18 U.S.C. § 924(c) is invalid in light of United
States v. Davis, 139 S. Ct. 2319 (2019). The term "crime of
violence" as relevant to convictions under § 924(c) is defined as
a felony that "has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another" (referred to as "the force clause") or that "by its
nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of
committing the offense" (referred to as "the residual clause").
18 U.S.C. § 924(c)(3)(A)-(B). In Davis, the Court held that this
second definition, the residual clause, was unconstitutionally
vague. Davis, 139 S. Ct. at 2336.
- 19 - In his briefing, Rodríguez-Santos states that his
conviction under § 924(c) rests on the residual clause definition
of "crime of violence" and thus must be overturned. However, he
does not explain why he believes only the residual clause
definition applies to Counts One and Two and does not differentiate
between the two possible predicate offenses described to the jury:
carjacking and kidnapping. If the force clause applies to the
predicate offenses, the unconstitutionality of the residual clause
definition is irrelevant. See United States v. Hernández-Román,
981 F.3d 138, 146 (1st Cir. 2020) (noting that "any conceivable
infirmity in the residual clause of [§ 924(c)] offered the
defendant no avenue for relief when the predicate offense qualified
as a crime of violence under one of the other clauses"). The
question, then, is whether carjacking or kidnapping is a crime of
violence within the meaning of the force clause.
We have previously held that the force clause
encompasses federal carjacking. United States v. Cruz-Rivera, 904
F.3d 63, 66 (1st Cir. 2018). We have not considered whether the
force clause applies to federal kidnapping under 18
U.S.C. § 1201(a). Other circuit courts have considered this
question but have reached conflicting conclusions.6 We need not
The Fifth Circuit distinguishes between the crime of 6
kidnapping and kidnapping resulting in death, holding that both are crimes of violence under the force clause. See In re Hall, 979 F.3d 339, 344 (5th Cir. 2020). Similarly, the Eighth Circuit
- 20 - wade into this debate to resolve this case because, as we explain,
Rodríguez-Santos's argument fails to meet two prongs of the
rigorous plain error standard.
A situation where one predicate charge is a valid basis
for a conviction and the other is not may give rise to a Yates
error, which occurs where a jury is "instructed on alternative
theories of guilt and may have relied on an invalid one." Hedgpeth
v. Pulido, 555 U.S. 57, 58 (2008) (per curiam); see Yates v. United
States, 354 U.S. 298, 311-12 (1957), overruled on other grounds
by Burks v. United States, 437 U.S. 1 (1978); see also United
States v. Laurent, 33 F.4th 63, 86 (2d Cir. 2022), cert. denied,
No. 22-5754, 2022 WL 16542116 (Oct. 31, 2022) (finding a Yates
error when the jury was improperly instructed to consider a
predicate offense that did not constitute a crime of violence under
treats kidnapping resulting in death as a crime of violence under the force clause and implies that kidnapping should be as well because "kidnapping necessarily involves 'a deliberate decision to endanger another' that amounts to recklessness." Ross, 969 F.3d at 839. In contrast, the Seventh Circuit has held that "kidnapping is not a crime of violence under the Force Clause" because no element of the crime of kidnapping requires the use of physical force. United States v. Jenkins, 849 F.3d 390, 393-94 (7th Cir. 2017), cert. granted, judgment vacated, 138 S. Ct. 1980 (2018). Applying that same logic, the Eleventh Circuit has reasoned that "federal kidnapping . . . can be committed by mere inveiglement and holding the victim by either physical or psychological force." United States v. Gillis, 938 F.3d 1181, 1210 (11th Cir. 2019) (emphasis in original). Because physical force is not required to commit kidnapping, that court held that kidnapping is not a categorial crime of violence under the force clause. Id.
- 21 - § 924(c)). Such errors are typically subject to harmless error
review. Skilling v. United States, 561 U.S. 358, 414 (2010).
However, unpreserved claims are subject to the "more
exacting plain error standard." Greer v. United States, 141 S.
Ct. 2090, 2099-100 (2021) (clarifying that plain error applies to
unpreserved, non-structural constitutional errors);
Hernández-Román, 981 F.3d at 145-46 (applying plain error to
appellant's unpreserved claim that § 924(c)'s residual clause was
unconstitutionally vague); Laurent, 33 F.4th at 86 (reasoning in
a post-Davis decision that plain error review applied to
appellant's unpreserved claim that the jury was improperly
instructed to consider a predicate offense that did not constitute
a crime of violence under § 924(c)). Because Rodríguez-Santos did
not raise an objection to the inclusion of both Counts One and Two
as possible predicates in the jury instructions and on the verdict
form, we review his claim for plain error.
The jury instructions in this case stated that a § 924(c)
conviction could rest on either the carjacking count or the
kidnapping count. Similarly, the indictment states that the
predicate crime of violence underlying Count Three may be either
Count One, carjacking resulting in death, or Count Two, kidnapping
resulting in death. The verdict also did not specify which
predicate offense the jury ultimately relied upon in finding
Rodríguez-Santos guilty on Count Three. In other words, there is
- 22 - a potential Yates error because it is impossible to know for
certain whether the jury considered kidnapping or carjacking the
predicate crime of violence required for a conviction on Count
Three when only carjacking is an established crime of violence in
this circuit. In theory, the jury could have concluded that
Rodríguez-Santos only aided and abetted the use of a firearm in
connection with kidnapping and not the carjacking.
This Yates error argument fails on the second prong of
plain error review because the instructional error was not "clear
or obvious." Hernández-Román, 981 F.3d at 146 (quoting Duarte,
246 F.3d at 60) (reciting the plain error standard). We have not
determined whether kidnapping is a crime of violence; therefore,
the district court did not commit a clear or obvious error in
treating it as such, especially where, as here, other circuit
courts have treated kidnapping as a crime of violence. In short,
the district court's instruction reflected decisions of some of
our sister circuits without conflicting with any of our own
precedents and thus was not a clear or obvious error.
However, even if we assumed, solely for purposes of this
decision, that the kidnapping charge was clearly an inappropriate
predicate offense, the outcome would be no different because
Rodríguez-Santos cannot establish that such an error "affected
[his] substantial rights," the third prong of the plain error
standard. Id.
- 23 - "An error affects substantial rights if it was
'prejudicial,' meaning that the error 'must have affected the
outcome of the district court proceedings.'" Ramirez-Burgos v.
United States, 313 F.3d 23, 29 (1st Cir. 2002) (quoting United
States v. Olano, 507 U.S. 725, 734 (1993)). This requirement
"generally means that there must be a 'reasonable probability that,
but for the error, the outcome of the proceeding would have been
different.'" Greer, 141 S. Ct. at 2096 (quoting Rosales-Mireles
v. United States, 138 S. Ct. 1897, 1904-05 (2018)). Here, we
conclude that the result would not have been different if the
kidnapping charge had been omitted from Count Three because the
kidnapping count and the carjacking count are "inextricably
intertwined," Parker v. United States, 993 F.3d 1257, 1263 (11th
Cir. 2021), and it is therefore improbable that the jury would
have acquitted on Count Three in the absence of the kidnapping
predicate.
The evidence used to prove both predicates was almost
identical: essentially, Rodríguez-Santos and the other men
simultaneously abducted Mayol-Rivera and took control of her
vehicle before she was murdered. Further, all of the evidence
regarding the use of a firearm was equally relevant to the "death
resulting" element of the carjacking and the kidnapping.
Therefore, it is highly unlikely that the jury would have reached
- 24 - a different result on Count Three in the absence of the kidnapping
Moreover, of the two predicates, only the carjacking
offense has an element requiring that a defendant commit the
offense "through the use of force, violence, or by intimidation
. . . with the intent to cause death or serious bodily harm."
Castro-Davis, 612 F.3d at 61. Thus, if the jury were to consider
the use of a gun in the context of only one predicate offense, it
is likely that it would factor much more heavily into their
decision on the carjacking.7
Accordingly, it would defy common sense to conclude that
the jury could have found Rodríguez-Santos guilty of aiding and
abetting the use of a firearm only with respect to the kidnapping
and not the carjacking. See Foster v. United States, 996 F.3d
1100, 1107 (11th Cir. 2021), cert. denied, 142 S. Ct. 500 (2021)
(concluding that the valid predicate offenses were "inextricably
intertwined" with invalid predicates and that there was no
possibility that the conviction rested only on invalid
predicates); Stone v. United States, 37 F.4th 825, 832 (2d Cir.
7 In closing argument, the government did not initially allude to the use of a firearm (or Mayol-Rivera's murder) in describing Rodríguez-Santos's intent to cause serious bodily harm to Mayol-Rivera during the carjacking. But, at a later point in its closing, the government stated, "[t]here is another kind of inference that you can make . . . which is, based on how the carjacking happened, it could be inferred that they were going to murder [Mayol-Rivera]."
- 25 - 2022), cert. denied, No. 22-5637, 2022 WL 16542129 (Oct. 31, 2022)
(concluding that defendant was not prejudiced by a jury instruction
including an invalid predicate offense because "the jury found
facts 'satisfying the essential elements of guilt' on the valid
predicate" (quoting Laurent, 33 F.4th at 86)); United States v.
Angiulo, 897 F.2d 1169, 1200 (1st Cir. 1990) (concluding that "even
though we have found that the accessory charge . . . [is] invalid
as a predicate act, the nature of the charges and the evidence
underlying those charges establishes that the jury necessarily
must have found . . . two valid predicate RICO acts"); Durfee v.
United States, No. 16-cv-280, 2020 WL 1942324, at *4 (D.N.H. Apr.
20, 2020) ("[W]hen the valid and invalid predicate offenses are
coextensive, a reasonable probability does not exist that the jury
convicted based only on the invalid offense."). There are simply
no reasonable grounds for concluding that the jury could have
convicted solely on the basis of a connection between the use of
a firearm and the kidnapping predicate.
Therefore, we conclude that the inclusion of the
potentially invalid predicate offense was not a plain or obvious
error and that, even if it was error, it would be harmless without
any effect on Rodríguez-Santos's substantial rights. Hence,
Rodríguez-Santos has failed to satisfy the second and third prongs
of the plain error standard.
- 26 - D. Sentencing
Rodríguez-Santos challenges two aspects of his sentence.
He argues that the district court erred when it failed to impose
a downward departure based on duress and that the application of
the obstruction of justice enhancement was unwarranted.
1. Duress Departure
Rodríguez-Santos contends that the district court should
have granted him a downward departure per § 5K2.12 of the U.S.
Sentencing Guidelines Manual ("Sentencing Guidelines"). That
Sentencing Guidelines section contemplates a downward departure
"[i]f the defendant committed the offense because of . . . duress,
under circumstances not amounting to a complete defense."
U.S.S.G. § 5K2.12 (U.S. Sent'g Comm'n 2004).
We review a district court's discretionary refusal to
depart from the guideline range for reasonableness. See United
States v. Herman, 848 F.3d 55, 58 (1st Cir. 2017). This approach
accords with a deferential abuse of discretion standard and
recognizes the "substantial discretion vested in a sentencing
court." United States v. Flores-Machicote, 706 F 3.d 16, 20 (1st
Cir. 2013). Here, Rodríguez-Santos offers no substantive
challenges to the court's decision except to state that "there are
sufficient out of the ordinary circumstances to warrant a downward
departure." He does not, however, elaborate on these
circumstances, or otherwise indicate how the court's decision was
- 27 - unreasonable. Therefore, we consider this argument waived. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(explaining that "issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.").8
However, even if this argument was not waived, we would
affirm the district court's decision not to depart downward as
reasonable. As noted above, there are no facts in this record
that support a duress defense. See supra. Therefore, there is
no way the district court could have concluded that
Rodríguez-Santos mounted an almost complete duress defense as
required by the downward departure he now seeks. Hence, the
district court's decision not to depart downward from the guideline
range was reasonable. See Herman, 848 F.3d at 58.
2. Obstruction of Justice Enhancement
Rodríguez-Santos argues that the district court's
imposition of a two-point enhancement for obstruction of justice
under § 3C1.1 of the Sentencing Guidelines was erroneous. Because
Rodríguez-Santos objected to the obstruction of justice
8 Although the transcript of the sentencing hearing contains no mention of a request for a downward departure, Rodríguez-Santos states that he preserved this argument and cites to a transcript from a status conference that occurred on March 8, 2019 (the sentencing hearing did not occur until December 2019). But whether this argument was preserved is irrelevant to our decision since Rodríguez-Santos failed to explain how the district court's decision not to depart was unreasonable.
- 28 - enhancement below, we would ordinarily review the "sentencing
court's decision for an abuse of discretion." United States v.
Grullon, 996 F.3d 21, 34 (1st Cir. 2021).
However, we choose not to address the substance of
Rodríguez-Santos's arguments because even if the district court
abused its discretion -- and we are not suggesting that it did --
Rodríguez-Santos was not harmed by the application of the
enhancement, which did not alter his total offense level.
Rodríguez-Santos quotes the district court's language in his own
brief explaining that although the enhancement would increase his
total offense level from 43 to 45, "Chapter 5 Part A commentary,
Application Note 2 . . . establishes that in cases in which the
total offense level is more than 43, the total offense level will
be treated as an offense level of 43." Hence, there is no basis
for his claim that the obstruction enhancement affected his
substantial rights by resulting in a longer sentence.
Affirmed.
- 29 -