UNITED STATES OF AMERICA, Appellee, v. CARLOS CRUZ-RIVERA, a/k/a CHIQUI, a/k/a CANO, a/k/a CANO LLORENS, Defendant, Appellant.
No. 16-1321
United States Court of Appeals For the First Circuit
September 14, 2018
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jose Antonio Fuste, U.S. District
Before Thompson, Kayatta, and Barron, Circuit Judges.
Ines McGillion,
Mainon A. Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, and Mariana E. Bauza-Almonte, Assistant United States Attorney, were on brief, for appellee.
BARRON, Circuit Judge. Carlos Cruz-Rivera (“Cruz“) appeals his convictions and sentence for federal carjacking and weapons counts. For the reasons that follow, we affirm.
I.
On September 9, 2015, Cruz was indicted in the District of Puerto Rico on three counts of carjacking in violation of
Cruz pleaded guilty to the three carjacking counts and proceeded to trial on the remaining four counts. In doing so, he stipulated that he had committed the carjacking offenses. However, at the close of the government‘s evidence, and again at the close of his own evidence, Cruz moved for a judgment of acquittal as to the three
The District Court denied both motions. On October 15, 2015, a jury convicted Cruz of all of the remaining counts. Cruz was then sentenced to 872 months of prison and five years of supervised release. This appeal followed.
II.
We begin with Cruz‘s contentions that none of his three convictions for carjacking under
Section 924(c) makes it a crime for “any person [to], during and in relation to any crime of violence . . . use[] or carr[y] a firearm, or [to], in furtherance of any such crime, possess[] a firearm[.]”
[A]n offense that is a felony and (A) 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) 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].
The first of these two clauses is referred to as the “force clause.” See United States v. Rose, 896 F.3d 104, 106 (1st Cir. 2018). The second is known as the “residual clause.” Id. So long as an offense is encompassed by either clause, it qualifies as a “crime of violence.” Id.
The federal carjacking statute states that “[w]hoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so,”
crime, such that if any of its elements categorically exceed the scope of the force clause, we must find that it is not encompassed by that clause. See Descamps v. United States, 570 U.S. 254, 271-73 (2013) (differentiating between divisible and indivisible crimes). And Cruz then goes on to argue that the elements of
Cruz premises this contention on the fact that carjacking under
Accordingly, we conclude that the force clause encompasses Cruz‘s
III.
Cruz next argues that
Cruz did not raise this issue below, and so our review is only for plain error. United States v. Vilches-Navarrete, 523 F.3d 1, 11 (1st Cir. 2008). Cruz thus needs to demonstrate that “(1) there was error; (2) the error was plain; (3) the error affected [his] substantial rights; and (4) the error adversely impacted the fairness, integrity, or public reputation of judicial proceedings.” United States v. Riggs, 287 F.3d 221, 224 (1st Cir. 2002). Cruz has not done so.
With respect to his facial challenge, Cruz contends that Congress exceeded its powers under the Commerce Clause in enacting
The fact that Cruz does not contend that
Cruz does argue that, notwithstanding this body of precedent, there must be some limit to Congress‘s power under the Commerce Clause to criminalize the means of carrying out an offense, even if that underlying offense itself falls within Congress‘s commerce power. And he then goes on to contend that, because
Cruz does not explain, however, why Congress‘s power under the Commerce Clause to prohibit the conduct encompassed by
First, Cruz contends that, because the government did not have to prove that the “firearm” in his case had a nexus to interstate commerce, his
Cruz separately contends that his
IV.
Cruz next challenges the sufficiency of the evidence for his
Cruz argues that “[t]he evidence was insufficient to establish a real firearm was used in the carjackings.” His premise for this argument is correct. Convictions under
Cruz goes on to contend, however, that we should hold that “where the government does not produce the gun and introduce expert evidence [that] it is real and can be fired, eyewitness testimony categorically, and as a matter of law, is not sufficient to demonstrate a suspected firearm is real.” But, we do not agree.
We have held that, with respect to the defendant‘s use of a “firearm” under
Cruz also argues that, even under our precedent, the evidence presented here was insufficient to prove that he used a “firearm.” He observes, correctly, that the government never produced the weapon that had been used in at least two of the carjackings, and he contends that the government failed to put forth enough evidence to permit a jury reasonably to rule out the possibility that he had used his cousin‘s BB gun in committing each of the carjackings. He thus argues that, because a BB gun is not a “firearm” within the meaning of
For one thing, Cruz‘s cousin testified that his BB gun was on his desk for the entire period during which the carjackings occurred. Thus, the jury reasonably could have credited that testimony and rejected the notion that a BB gun had been used in any of the carjackings.
For another, the government put forth affirmative evidence that a “firearm” had been used in committing each of those offenses. The victim of the second carjacking testified that she “kn[e]w the difference between a pistol and a revolver,” that the defendant‘s gun was a pistol, and that it “look[ed] exactly like” a black pistol that law enforcement found in Cruz‘s home after his arrest and introduced as evidence at trial. Thus, a jury could reasonably find that Cruz used a “firearm” to commit that offense. See Martinez-Armestica, 546 F.3d at 440 (witness‘s testimony that she knew the difference between a pistol and a revolver allowed jury to conclude she “had some familiarity with firearms,” and permitted jury to conclude that evidence of gun‘s realness was credible).
Given that the victims of the other two carjackings each also testified in some detail that the defendant had used a gun in committing the carjackings that they endured, a jury could have inferred from the victims’ testimony in combination that Cruz had access to multiple “firearms” and had used one in committing each of these crimes. And that is at least the case in light of the many other similarities in each victim‘s testimony about the way in which the assailant carried out each carjacking. Cf. United States v. Soto, 720 F.3d 51, 55-56 (1st Cir. 2013) (holding that proof that defendant knew some stolen identities belonged to real people could be used by the jury to infer that the defendant knew the other identities he stole belonged to real people).
To be sure, the victims did not each offer the same description of the weapon used by the assailant, and only one of their descriptions -- the second victim‘s -- was of a weapon that matched the black pistol that the police had found in Cruz‘s home. But, the description of the gun that the victim of the first attack gave in her testimony -- a silver “revolver” -- could not plausibly describe the BB gun. And, while the gun described by the victim of the third carjacking could potentially describe the BB gun, the jury heard testimony, as we have noted, that Cruz‘s cousin possessed the BB gun during the entire relevant period. Moreover, the government put forth undisputed circumstantial evidence that each victim “reacted as if the gun was real, following [Cruz‘s] various orders,” which the jury was entitled to consider
In sum, we must draw all inferences in favor of the verdict. And here, the jury was given strong evidence that a “firearm” had been used in the second carjacking, and heard testimony from each of the other victims that both supported the inference that a real gun had been used in their attacks and made clear that each of the carjackings was carried out in strikingly similar way. We thus conclude that the evidence did suffice to permit a reasonable jury to conclude that Cruz used a “firearm” in carrying out each of the predicate carjackings. Accordingly, Cruz‘s sufficiency challenge to his convictions fails.
V.
Cruz‘s final ground for challenging his
Cruz challenges the following portion of the District Court‘s instruction to the jury:
[T]hat the law does not require that the actual specific firearms used in the commission of the charged offense be found, brought to the court, and be marked in evidence. That is not required. Instead, if credited by you, the descriptive testimony of an eyewitness that the gun was real as opposed to a toy or a replica can be sufficient to prove that the firearm or firearms were real. The testimony of just one witness can support
a finding that the firearm or firearms were real as defined above.
Cruz argues that the district court plainly erred in giving this instruction because it “dispens[ed] with the government‘s burden to produce the gun, and instead permitt[ed] lay witness testimony that the gun ‘appeared’ real to sustain a conviction.” But, as we have already explained, our case law is clear in providing that “[d]escriptive lay testimony can be sufficient to prove that the defendant used a real gun.” Cruz-Diaz, 550 F.3d at 173 (quoting Roberson, 459 F.3d at 47). Thus, we reject this challenge, too.
VI.
For the foregoing reasons, the judgment below is affirmed.