United States v. Garcia-Ortiz, 657 F.3d 25

Defendant García-Ortiz challenges his conviction and sentence after resentencing on three counts, arguing Double Jeopardy, an unreasonable sentence, and post-offense rehabilitation.
The district court sentenced on count 3 to 240 months, count 1 to 50 months concurrent, and count 2 to a consecutive five years, after reducing the base offense level from 43 to 38.
The court denied the lesser-included offense argument for count 2, denied a mitigating role adjustment, and denied a sentence reduction for rehabilitation; it noted 18 U.S.C. § 3553(a) factors in sentencing.
The First Circuit previously affirmed the conviction but vacated and remanded for resentencing; the government conceded that count 2 is a lesser included offense of count 3.
The court vacated the count 2 conviction and sentence, and remanded for resentencing on counts 1 and 3, with guidance on potential adjustments and package sentencing.
The pro se brief adds challenges to conviction and rehabilitation arguments, which the court treats as part of the remand and review process.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Double jeopardy for count 2 as lesser included offense	García-Ortiz contends count 2 is a lesser included offense of count 3.	García-Ortiz argues cumulative punishment under 924(c) and 924(j) violates Constitution.	Count 2 vacated; conviction and sentence for count 2 annulled.
Mitigating role adjustment denial	García-Ortiz seeks a two-level minor role reduction.	Court should have applied USSG §3B1.2(b) given his lesser role.	No clear error; defendant not entitled to minor role adjustment.
Post-offense rehabilitation sentence reduction	Rehabilitation evidence warrants reduction under Pepper.	Court should have reduced sentence based on rehabilitation.	Remand for resentencing; Pepper acknowledged but not compelled; court's discretion retained.
Pro se challenges to conviction	García-Ortiz argues the prior affirmance was erroneous.	No exceptional circumstance to reconsider; not reviewed anew.	Not reviewable absent exceptional circumstances; claims dismissed as to new conviction issue.
Remand and package sentencing on remaining counts	District court should adjust sentencing package after vacating count 2.	Unbundling and potential reduction may be appropriate on remand.	Remand for resentencing on counts 1 and 3; court may unbundle and adjust package as appropriate.

Rutledge v. United States, 517 U.S. 292 (1996) (presumption of single punishment when offenses share conduct)
Missouri v. Hunter, 459 U.S. 359 (1983) (Congress may authorize cumulative punishment under separate statutes)
Albernaz v. United States, 450 U.S. 333 (1981) (legislative authorization of cumulative punishment evaluated by intent of Congress)
Whalen v. United States, 445 U.S. 684 (1980) (no automatic prohibition of cumulative punishment absent clear congressional intent)
United States v. Flores, 968 F.2d 1366 (1st Cir. 1992) (924(c) as lesser included offense of 924(j) on elements; distinction noted)
United States v. Catalán-Roman, 585 F.3d 453 (1st Cir. 2009) (helps analyze overlapping offenses and cumulative punishment)
United States v. Jiménez-Torres, 435 F.3d 3 (1st Cir. 2006) (concerning multiple punishments under related statutes)
United States v. Ocasio, 914 F.2d 330 (1st Cir. 1990) (standard for determining minor role in conspiracy)
United States v. Prochner, 417 F.3d 54 (1st Cir. 2005) (review of PSI-supported inferences for sentencing)
Pepper v. United States, 131 S. Ct. 1229 (2011) (post-offense rehabilitation may justify discretionary reduction)