United States v. Hernandez-Roman, 981 F.3d 138

Background:

On Nov. 29, 2014 three armed men robbed a Banco Popular branch in Bayamón, PR, taking >$64,000 and leaving fake-bomb diversion packages at other ATMs.
Investigators detained Jomar Hernández-Román; he admitted hosting planning meetings, surveilling the bank, knowing about the fake-bomb scheme, and returning a shotgun used in the robbery; co-conspirator testimony and store surveillance corroborated purchases of disguises.
A federal grand jury indicted Hernández-Román (and others) on five counts: conspiracy to commit bank robbery, armed bank robbery, two Hobbs Act conspiracy/attempt counts, and a §924(c) firearms count.
After a trial, the jury convicted Hernández-Román on all counts; the district court sentenced him to 87 months; he appealed.
On appeal he raised sufficiency challenges (intent, physical presence, gun possession), a §924(c) residual-clause vagueness challenge, and claims about the jury’s failure to specify the §924(c) predicate.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of the evidence for conspiracy, armed bank robbery, Hobbs Act counts, and §924(c)	Evidence (defendant admissions, co-conspirator testimony, surveillance, recovered items) suffices; Pinkerton makes coconspirator liable for foreseeable substantive acts	Insufficient proof of intent, physical presence in bank, or actual firearm possession	Defendant waived many sufficiency claims by not renewing Rule 29; in any event evidence sufficed and Pinkerton liability supports convictions including §924(c)
Constitutional vagueness of §924(c) residual clause	Even if residual clause invalid, predicate offenses here qualify under §924(c)’s force clause, so §924(c) conviction stands	Residual clause mirrors ACCA/INA clauses invalidated in Johnson/Dimaya and is therefore void	Assuming residual clause invalid, Hobbs Act robbery and armed bank robbery qualify under the force clause, so no relief granted
Jury unanimity regarding which predicate offense supported §924(c)	Harmless: jury convicted on all predicate counts, so lack of a single-predicate finding did not affect substantial rights	Jury did not make a specific finding as to which predicate supported §924(c), requiring a new trial	Any error in failing to require a single-predicate unanimous finding was harmless because jury unanimously convicted on all predicate crimes
Broad attack that §924(c) is unfair or inconsistently applied	Issues must be developed; perfunctory assertions are waived	§924(c) is a "rotten statutory disposition" and applied unfairly	Claim was undeveloped and therefore waived under circuit precedent

Key Cases Cited

Pinkerton v. United States, 328 U.S. 640 (1946) (establishes coconspirator liability for foreseeable substantive offenses)
Johnson v. United States, 576 U.S. 591 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (invalidated INA residual clause as unconstitutionally vague)
United States v. García-Ortiz, 904 F.3d 102 (1st Cir. 2018) (Hobbs Act robbery qualifies under §924(c) force clause)
United States v. Flecha-Maldonado, 373 F.3d 170 (1st Cir. 2004) (Pinkerton liability can support §924(c) conviction without personal gun carrying)
United States v. Hunter, 873 F.3d 388 (1st Cir. 2017) (armed bank robbery qualifies as a crime of violence under §924(c) force clause)
United States v. Gómez, 580 F.3d 94 (2d Cir. 2009) (when jury convicts on all predicate crimes, absence of single-predicate finding is harmless)
United States v. Duarte, 246 F.3d 56 (1st Cir. 2001) (plain-error review applies to unpreserved claims)