United States v. Garcia-Ortiz
904 F.3d 102
1st Cir.2018Background
- José García–Ortiz participated in a 2000 armed robbery of cash being transported from a grocery store to a bank; a collaborator was killed during an exchange of gunfire.
- Jury convicted García of (1) aiding and abetting Hobbs Act robbery (18 U.S.C. § 1951), (2) aiding and abetting use/ carrying of a firearm in relation to a crime of violence (18 U.S.C. § 924(c)), and (3) aiding and abetting felony murder in the course of using/carrying a firearm (18 U.S.C. § 924(j)).
- Prior appeals led to resentencing, the vacatur of the § 924(c) count as a lesser-included offense, and a limited remand solely to correct the restitution order; restitution was ultimately set at $30,000.
- On the present appeal García argues: (a) § 924(c)(3)(B)’s residual clause is unconstitutionally vague (post-Johnson II and Dimaya), meaning Hobbs Act robbery is not a predicate "crime of violence" for his § 924(j) conviction; (b) restitution was imposed punitively for successful appeals; (c) the district court should have applied Guideline Amendment 794 to reduce his offense level; and (d) sentences for counts should have run concurrently.
- The First Circuit affirms: it holds Hobbs Act robbery categorically qualifies as a "crime of violence" under § 924(c)(3)(A)’s force clause, rejects the punitive-restution claim, deems any Guidelines error harmless, and reiterates that consecutive sentences were within district court discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 924(c)’s residual clause is void for vagueness such that Hobbs Act robbery no longer qualifies as a crime of violence for § 924(j) liability | García: Post-Johnson II and Dimaya, the residual clause is unconstitutionally vague; Hobbs Act robbery therefore cannot serve as the predicate for § 924(j) | Government: Even if the residual clause is invalid, Hobbs Act robbery nonetheless categorically qualifies under § 924(c)(3)(A)’s force clause | Held: Affirmed. Hobbs Act robbery has as an element the use/threatened use of physical ("violent") force, so it is a crime of violence under the force clause; § 924(j) conviction stands |
| Whether restitution was improperly imposed as punishment for successful appeals | García: District court imposed restitution as punitive retaliation for his prior appeals success | Government: Restitution was mandatory under the MVRA once a crime of violence conviction was in place; no evidence of improper motive | Held: Affirmed. Restitution was mandatory under 18 U.S.C. § 3663A and García made no specific showing of improper motive; amount not challenged |
| Whether Amendment 794 to the Guidelines required a mitigating-role reduction on remand | García: Amendment 794 (2015) changed application notes and warranted reconsideration and a role reduction | Government/District Court: The limited remand was for restitution only; even if considered, district court found García not entitled to a minor-role reduction based on the record | Held: Any failure to apply Amendment 794 on remand was harmless; district court’s decision not to reduce was reasonable |
| Whether sentences for counts one and three should run concurrently rather than consecutively | García: Sentences should run concurrently | Government: District court had discretion to impose consecutive sentences; no authority requires concurrency | Held: Law of the case. Affirmed consecutive sentences as within sentencing discretion |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (2010) (interpreting "physical force" in force-clause contexts as "violent force")
- Johnson v. United States, 135 S. Ct. 2551 (2015) (holding residual clause of ACCA void for vagueness)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (holding similarly that a residual-clause deportation provision is unconstitutionally vague)
- United States v. García-Ortiz, 528 F.3d 74 (1st Cir. 2008) (earlier opinion describing facts and original sentencing)
- United States v. García-Ortiz, 657 F.3d 25 (1st Cir. 2011) (reversal on double jeopardy grounds of a § 924(c) count)
- United States v. García-Ortiz, 792 F.3d 184 (1st Cir. 2015) (affirming convictions and ordering limited remand for restitution)
- Lassend v. United States, 898 F.3d 115 (1st Cir. 2018) (permitting belated challenge where Supreme Court overruled prior precedent)
- United States v. Ellison, 866 F.3d 32 (1st Cir. 2017) (holding bank robbery satisfies force-clause mens rea requirement)
- United States v. Frates, 896 F.3d 93 (1st Cir. 2018) (similar analysis to Ellison on force-clause application)
- United States v. Edwards, 857 F.3d 420 (1st Cir. 2017) (discussing threats like poisoning as involving violent force)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (requiring a realistic probability of application before considering hypothetical crime variants)
- Castleman v. United States, 134 S. Ct. 1405 (2014) (clarifying that "force" includes force capable of causing physical pain or injury)