UNITED STATES OF AMERICA, Appellee, v. EDWIN OMAR ALMONTE-NÚÑEZ, Defendant-Appellant.
No. 15-2070
United States Court of Appeals For the First Circuit
June 18, 2020
Torruella, Dyk, and Thompson, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District Judge]
Michael M. Brownlee, with whom The Brownlee Law Firm, P.A. was on brief, for appellant.
John P. Taddei, Attorney, Criminal Division, Appellate Section, U.S. Department of Justice, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.
Before Torruella, Dyk,* and Thompson, Circuit Judges.
I.
This case returns to this court after resentencing following the decision in United States v. Almonte-Núñez (“Almonte I“), 771 F.3d 84 (1st Cir. 2014).
As recounted in the earlier decision, on September 30, 2011, Almonte unlawfully entered the residence of a 78-year-old widow. During this home invasion, Almonte brandished and aimed towards the victim a loaded pistol, threatened to shoot her, twice struck her in the face with the pistol, and kicked her after she fell to the ground. The victim suffered grievous injuries, including the loss of her right eye. Almonte was thereafter arrested by Puerto Rico police officers after a high-speed car chase.
As relevant to this appeal, the Commonwealth of Puerto Rico court charged Almonte with two counts of violating the Puerto Rico Weapons Act: carrying and using a firearm without a license (“Commonwealth count 1“) and discharging or pointing a firearm at another person (“Commonwealth count 2“). Almonte pled guilty to those charges and on June 6, 2012, was sentenced to ten years and two
Thereafter, a federal grand jury returned an indictment charging Almonte with robbing the victim of her United States passport in violation of
Almonte appealed his federal sentence, arguing that his 150-month sentence for federal count 3 exceeded the statutory maximum. Almonte I, 771 F.3d at 91. This court held that Almonte‘s sentence “constituted clear and obvious error” because it exceeded the “maximum level of imprisonment [of 120 months] established by Congress” under
On August 21, 2015, the district court conducted a sentencing hearing in accordance with the remand order. At the resentencing hearing, Almonte twice expressed a concern that he was not “being adequately represented [by] [his] counsel,” because of his belief that he was supposed to be resentenced for time served. App‘x 55, 59. Almonte‘s counsel explained that there was “nothing in [the remand order] that would lea[d] one to believe that [he was supposed to be sentenced for time served].” App‘x 57. The district court stated that the issue was waived because Almonte had not raised it in the first appeal. The district court modified Almonte‘s sentence for federal count 3 to 120 months and ordered that Almonte‘s federal sentence be served concurrently with the sentence imposed by the Commonwealth.
Almonte now appeals the sentence imposed at his resentencing. In his opening brief, he argues that (1) the district court failed to inquire into his request for substitution of new counsel and (2) his conviction for federal count 1 under
II.
A.
The government urges that Almonte‘s arguments are barred by the law
“The law of the case doctrine has two branches. The first branch--known colloquially as the mandate rule--‘prevents relitigation in the trial court of matters that were explicitly or implicitly decided by an earlier appellate decision in the same case.‘” Id. at 13 (emphasis added) (quoting United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004)). “The second branch of the doctrine binds a ‘successor appellate panel in a second appeal in the same case’ to honor fully the original decision” and, with some limited exceptions, “contemplates that a legal decision made at one stage of a criminal or civil proceeding should remain the law of that case throughout the litigation, unless and until the decision is modified or overruled by a higher court.” Id. (quoting Moran, 393 F.3d at 7). Under this doctrine, “[the appellate court] need not and do[es] not consider a new contention that could have been but was not raised on the prior appeal.” AngioDynamics, Inc. v. Biolitec AG, 823 F.3d 1, 4 (1st Cir. 2016) (quoting United States v. Arreguin, 735 F.3d 1168, 1178 (9th Cir. 2013)); see also M. v. Falmouth Sch. Dep‘t, 875 F.3d 75, 78 (1st Cir. 2017) (“The district court correctly concluded that . . . introducing a claim that could have been raised [in the previous appeal] would bе inappropriate.“).
The government argues that both the district court and this court are bound by the law of the case because “the sole purpose of the remand was to impose a 120-month sentence for [federal count 3] so that it would not exceed the statutory maximum for that [c]ount.” Government‘s Br. 9-10 (citing Almonte I, 771 F.3d at 92-93). The government suggests that unless this court “expressly directed otherwise, [the] district court [could] only consider new arguments or facts on remand that [were] made relevant by the Court of Appeals decision.” Id. at 10 (citing United States v. Cruzado-Laureano, 527 F.3d 231, 235 (1st Cir. 2008)).
The government relies on United States v. Santiago-Reyes, 877 F.3d 447 (1st Cir. 2017), which stated that the mandate rulе “generally requires that a district court conform with the remand order from an appellate court.” Id. at 450 (quoting United States v. Ticchiarelli, 171 F.3d 24, 31 (1st Cir. 1999)). However, Santiago-Reyes did not purport to overturn the longstanding First Circuit precedent that “[the mandate] rule cannot apply” to “issue[s] [that] could not have been raised on the appeal from the original sentence.” United States v. Bryant, 643 F.3d 28, 34 (1st Cir. 2011). “Whatever [the mandate rule] may preclude as to arguments that were made and lost or should have been made but were not, it can hardly extend to arguments that a party could not reasonably have been expected to mаke in the prior sentencing.” Id. at 33-34; see also Matthews, 643 F.3d at 14; United States v. García-Ortiz, 904 F.3d 102, 106 (1st Cir. 2018).
Almonte‘s first argument is that the district court erred when it failed to inquire into his request for substitution of counsel. The government urges that Almonte‘s argument is barred by the mandate rule. We conclude that Almonte‘s argument is not barred because it concerns an issue that arose for the first time in the resentencing hearing. See Bryant, 643 F.3d at 34.
We nonetheless conclude that the district court did not abuse its discretion in denying Almonte‘s request for substitution of counsel. When reviewing a district court‘s denial of a request for substitution of counsel, this court “considers not only the adequacy of the [district] court‘s inquiry but also factors such as the timeliness of the motion for substitution and the nature of the conflict between lawyer and client.” United States v. Myers, 294 F.3d 203, 207 (1st Cir. 2002). “The extent and nature of the inquiry may vary in each case; it need not amount to a formal hearing.” United States v. Woodard, 291 F.3d 95, 108 (1st Cir. 2002). “We . . . limit our focus to whether, in light of the then-existing circumstances, the court erred in denying the motion.” United States v. Pierce, 60 F.3d 886, 891 (1st Cir. 1995) (reviewing an “analogous” challenge to a district court‘s denial of a motion to withdraw as counsel).
Here, the untimeliness of Almonte‘s request weighs against finding that the district court abused its discretion. Almonte‘s request was made five months after this court‘s decision in Almonte I, and he does not provide any explanation for the delay. See Woodard, 291 F.3d at 108 (holding that a request for substitution of counsel was untimely when made “several months” after a conflict was known and with “no explanation for why [the defendant] did not complain earlier“).
Further, Almonte‘s only ground for requesting substitute counsel was the theory that he should have been sentenced for time served. At the resentencing hearing, Almonte stated: “I don‘t feel I am being adequately represented with this counsel.” App‘x 55. Almonte‘s trial counsel explained that Almonte had thought that he was being resentenced “for credit for time served,” but that there appeared to be no “legal argument to be made for why [Almonte] should be credit[ed] for time served.” App‘x 57-58. The district court agreed, and further stated that Almonte had waived this issue by failing to raise it in his first appeal. When the district court asked Almonte if he wanted to make an allocution, Almonte stated: “I don‘t feel that I‘m being adequately represented with this attorney. When I was sentenced the first time, the circuit wrote and said that [the district court] did not cоunt the points for the state cases.” App‘x 59. Notably, when prompted for further explanation by the district court, Almonte stated “[t]hat‘s it,” and provided no further justification for his request for substitution of counsel. Id. When Almonte made his request for new counsel, “the trial court . . . conduct[ed] an appropriate inquiry into the source of the defendant‘s dissatisfaction with his counsel,” United States v. Díaz-Rodríguez, 745 F.3d 586, 590 (1st Cir. 2014), in order to ascertain whether the court had “good cause for rescinding the original appointment and interposing a new one.” Myers, 294 F.3d at 206. Here, Almonte did not show good cause for the appointment of substitute counsel.
On appeal, Almonte asserts for the first time two additional justifications for his request. First, he argues that his trial counsel failed to raise an objection to his initial sentence that exceeded the statutory
We conclude that the district court did not abuse its discretion by denying Almonte‘s request for substitution of counsel.
C.
We next address thе government‘s contention that Almonte‘s remaining arguments, i.e., that his robbery conviction under
“[W]here the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.” Henderson v. United States, 568 U.S. 266, 273 (2013) (second alteration in original) (quoting Johnson, 520 U.S. at 468). Conversely, there can be no plain error when the law is unsettled. See United States v. Delgado-Sánchez, 849 F.3d 1, 11 (1st Cir. 2017); Connelly v. Hyundai Motor Co., 351 F.3d 535, 546 (1st Cir. 2003).
The law of the case doctrine is not a bar to Almonte‘s arguments.
D.
Almonte argues that his sentence under
(A) [a felony that] has as an element the use, attempted use, or threatened use of physical force against the person or property of another [the “force clause“], or
(B) [a felony] 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 [the “residual clause“].
Before the Supreme Court‘s Davis decision, a defendant could be convicted for violating
In this case, Almonte‘s conviction under
But Bell is not binding on us and, in any case, was before the Supreme Court‘s decision in Stokeling v. United States, 139 S. Ct. 544 (2019). In Stokeling, the Supreme Court held that
The defendant argues that resentencing is still required because the district court did not specify which subsection it was relying on, and the residual clause has now been held unconstitutional. The court‘s decision in García-Ortiz rejected a similar contention. In García-Ortiz, the defendant asserted that his Hobbs Act robbery сonviction under
E.
Almonte next argues that his federal convictions must be vacated under Sánchez Valle. The Double Jeopardy Clause “protects against a second prosecution for thе same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165 (1977) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). “But two prosecutions, [the Supreme] Court has long held, are not for the same offense if brought by different sovereigns--even when those actions target the identical criminal conduct through equivalent criminal laws.” Sánchez Valle, 136 S. Ct. at 1870. In Sánchez Valle, the Supreme Court held that the Commonwealth of Puerto Rico and the United States were not separate sovereigns for the purpose of double jeopardy analysis. Id. at 1876.
There are limited exceptions under which a defendant may make a collateral attack on a guilty plea. United States v. Broce, 488 U.S. 563, 574 (1989). Broce set out the standard for double jeopardy challenges to a conviction following a knowing and voluntary plea by the defendant. Id. at 576. Broce highlighted the significance of a guilty plea, explaining that “[b]y entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime,” id. at 570, and cannot voluntarily do so without “possess[ing] an understanding of the law in relation to the facts,” id. (quoting McCarthy v. United States, 394 U.S. 459, 466 (1969)). Given the significance of a guilty plea and the admissions inherent within, “a guilty plea forecloses a double jeopardy claim unless ‘on the face of the record, the court had no power to enter the conviction or impose the sentence.‘” United States v. Stefanidakis, 678 F.3d 96, 99 (1st Cir. 2012) (quoting Broce, 488 U.S. at 569). A defendant must prove his claim by relying on the existing record and without contradicting the indictments or admissions inherent in the guilty plea. Broce, 488 U.S. at 576. This is a high threshold that is not easily met.1
The Supreme Court has now held that “for purposes of the Double Jeopardy Clause, . . . the Commonwealth and the United States are not separate sovereigns.” Sánchez Valle, 136 S. Ct. at 1876. We conclude that Sánchez Valle represents a dramatic “intervening change in controlling legal authority” that justifies an exception to the law of the case doctrine. Matthews, 643 F.3d at 14. We therefore address the merits of Almonte‘s double jeopardy claim under the applicablе plain error standard.
Plain error requires four showings: “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant‘s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Almonte cannot prove that the district court plainly erred in sentencing him in federal court despite his state convictions.
Almonte cannot satisfy the first two requirements for plain error because he cannot show that the court committed an error which was clear or obvious. We аddress three questions in a double jeopardy analysis: “(1) whether jeopardy ever attached; (2) whether the first proceeding was a decision on the merits; and (3) whether the subsequent proceeding involves the ‘same offense.‘” United States v. Szpyt, 785 F.3d 31, 36 (1st Cir. 2015). Because the parties’ arguments center on the third question of our double jeopardy analysis--“whether the subsequent proceeding involves the ‘same offense,‘” id.--we do the same.
Almonte argues that his federal firearm convictions must be vacated because the Commonwealth of Puerto Rico had already sentenced him “for the same criminal conduct.” Appellant‘s First Supplemental Br. 3. Almonte‘s contention that Sánchez Valle stands for the proposition that a defendant cannot be tried in both Puerto Rico and federal courts for crimes arising from the same conduct or transaction misinterprets the Supreme Court‘s holding. Sánchez Valle merely held that the dual-sovereign doctrine does not bar a defendant from raising a double jeopardy claim when he is being subjected to successive prosecutions in Puerto Rico‘s local courts and federal courts for the same offense. By so deciding, the Supreme Court did not alter the framework for analyzing a double jeopardy claim under the Fifth Amendment. Our focus on double jeopardy claims continues to be determining whether the successive prosecutions are for the same offense (under equivalent criminal statutes). See Gamble v. United States, 139 S. Ct. 1960, 1965 (2019) (emphasizing that the language of the Fifth Amendment‘s double jeopardy clause “protects individuals from being twice put in jeopardy ‘for the same offence,’ not the same conduct or actions” (emphases in original) (citations omitted)). For that, we еxamine whether each of the offenses requires proof of a fact that the others do not. Blockburger v. United States, 284 U.S. 299, 304 (1932). Yet, Almonte does not even attempt to show that the charges for which he was convicted in federal court do not require different elements than those required to be proven for his state convictions. Thus, he cannot show that an error occurred, much less that a clear or obvious
“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304. For two statutes to criminalize the same offense, “[t]he conduct described in one offense must necessarily include the conduct of the second offense.” United States v. Gerhard, 615 F.3d 7, 19 (1st Cir. 2010) (citing Ball v. United States, 470 U.S. 856, 862 (1985)); United States v. Woodward, 469 U.S. 105, 107-08 (1985).
We begin with the federal
It shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
“To convict a defendant [under
According to the PSR, the Commonwealth court sentenced Almonte to 120 months of imprisonment for using a firearm without a license in violation of the Puerto Rico Weapons Act. This description makes clear that his conviction was under Article 5.04, which provides that “[a]ny person who transports any firearm or any part thereof without having a weapons license, or carries any firearm without the corresponding permit to carry weapons, shall be guilty of a felony.”
Section 922(g) does not require a showing that the defendant did not have a license, and Article 5.04 does not require proof that the defendant was a prohibited person or that the firearm was in or affecting interstate commerce. We conclude that the federal
We now address Almonte‘s federal
[A]ny person who, during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence . . . if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years.
To establish a
The Commonwealth offense was for violation of Article 5.15 of the Puerto Rico Weapons Act, which in the relevant part provides:
[A] person shall be guilty of a felony if:
(1) [h]e willfully discharges any firearm in a public place or any other place, although no injury results, or
(2) he intentionally, although without malice aforethought, aims a weapon towards a person, although no injury results.
This court has previously held that Article 5.15 is divisible, and thus defines “two alternative sets of elements for two different crimes“: (1) “discharging” a firearm and (2) “pointing” or “аiming” a weapon towards another person. Delgado-Sánchez, 849 F.3d at 9. The PSR shows that Almonte was convicted of aiming a firearm at another person under Article 5.15(a)(2), rather than discharging a firearm under Article 5.15(a)(1).
The federal
In sum, Almonte focused most of his energy on undermining the Government‘s arguments аs to why his double jeopardy claim fails, but he did not establish a prima facie nonfrivolous double jeopardy claim. The burden of proof was on him, not on the Government, and Almonte failed to meet it. See United States v. Laguna-Estela, 394 F.3d 54, 56 (1st Cir. 2005) (holding that a defendant claiming double jeopardy “has the burden of presenting evidence to establish a prima facie nonfrivolous double jeopardy claim. Once such a claim is established, the burden shifts to the government to prove by preponderance of the evidence that the indictments charge separate offеnses.” (quoting United States v. Booth, 673 F.2d 27, 30-31 (1st Cir. 1982))); see also United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).2
Almonte has not shown plain error.
III.
We conclude that the district court did not abuse its discretion when it denied Almonte‘s request for substitution of counsel, that Almonte‘s conviction under
that, under a plain error standard,
Affirmed.