963 F.3d 58
1st Cir.2020Background
- In 2011 Almonte committed a violent home invasion: he brandished a loaded pistol, threatened and struck a 78‑year‑old victim, causing severe injuries (loss of an eye), and was arrested after a high‑speed chase.
- Puerto Rico convicted him under two weapons statutes (carrying/using without a license; pointing a firearm) and sentenced him to consecutive prison terms totaling 12 years.
- A federal indictment charged robbery of a U.S. passport (18 U.S.C. § 2112), brandishing a firearm during a crime of violence (18 U.S.C. § 924(c)(1)(A)(ii)), and felon‑in‑possession (18 U.S.C. § 922(g)(1)); Almonte pleaded guilty to all counts.
- This court in Almonte I vacated part of the federal sentence and remanded to reduce the § 922(g) term from 150 to the statutory maximum 120 months; the district court resentenced accordingly and ordered federal time concurrent with the state term.
- On resentencing Almonte sought new counsel (claiming ineffective representation re: credit for time served); he later challenged (1) the district court’s refusal to inquire/substitute counsel, (2) whether § 2112 robbery is a § 924(c) ‘‘crime of violence’’ after Davis/Stokeling, and (3) whether federal convictions violate Double Jeopardy after Puerto Rico v. Sánchez Valle.
Issues
| Issue | Plaintiff's Argument (Gov.) | Defendant's Argument (Almonte) | Held |
|---|---|---|---|
| 1. District court’s refusal to inquire/substitute counsel at resentencing | The court acted within the remand scope and properly denied substitution as untimely and unsupported. | Requested new counsel because he thought he should be resentenced to time served and felt inadequately represented. | Denial affirmed: request was untimely, Almonte gave no good‑cause basis, and district court’s inquiry was adequate. |
| 2. Applicability of § 2112 robbery as a § 924(c) "crime of violence" after Davis | § 2112 robbery qualifies under the force clause (§ 924(c)(3)(A)); Stokeling supports treating common‑law robbery as involving use/threat of force. | § 2112 is not categorically a crime of violence (relying on lower court decisions). | Affirmed: § 2112 robbery is a predicate crime of violence under the force clause; Davis only invalidated the residual clause, not the force clause. |
| 3. Effect of law‑of‑the‑case/mandate rule on resentencing arguments | Remand limited to reducing the § 922(g) term; earlier mandate bars re‑litigating issues that could have been raised. | Some claims (counsel substitution, Davis/Johnson challenges, Sánchez Valle) arose or developed after the first appeal. | Law‑of‑the‑case did not bar the new counsel claim or review of new intervening‑law arguments; court applied plain‑error review where appropriate. |
| 4. Double jeopardy under Puerto Rico v. Sánchez Valle | Federal and Puerto Rico convictions are for different statutory offenses; Blockburger elements test shows distinct offenses. | Sánchez Valle eliminates separate‑sovereign immunity and thus bars successive prosecutions/penalties for same conduct between PR and federal governments. | Affirmed: Sánchez Valle is intervening law but Almonte failed to show the two prosecutions punished the same offense under Blockburger; no plain error shown. |
Key Cases Cited
- United States v. Almonte‑Núñez, 771 F.3d 84 (1st Cir. 2014) (remanding to correct § 922(g) sentence above statutory maximum)
- Davis v. United States, 139 S. Ct. 2319 (2019) (invalidating § 924(c)(3)(B) residual clause as unconstitutionally vague)
- Stokeling v. United States, 139 S. Ct. 544 (2019) (holding common‑law robbery falls within comparable statutory force language)
- Puerto Rico v. Sánchez Valle, 136 S. Ct. 1863 (2016) (holding Puerto Rico and the United States are not separate sovereigns for double jeopardy purposes)
- Blockburger v. United States, 284 U.S. 299 (1932) (elements test for whether two statutory offenses are the same for double jeopardy)
- Broce v. United States, 488 U.S. 563 (1989) (limits on collateral attack to guilty pleas on double jeopardy grounds)
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (mens rea requirements for § 922(g) possession offenses)
- United States v. García‑Ortiz, 904 F.3d 102 (1st Cir. 2018) (treating Hobbs Act robbery as a crime of violence under the force clause)