APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Francisco A. Besosa , U.S. District Judge.
Ignacio Ferná ndez-de Lahongrais, by appointment of the court, for appellant.
Luke V. Cass, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Marcela Claudia Mateo, Assistant United States Attorney, were on brief, for appellee.
Before Torruella and Lipez, Circuit Judges, and Gelpí ,[*] District Judge.
TORRUELLA, Circuit Judge.
This case marks the second time that Appellant Carlos
Dávila-Félix (" Dávila" ) has appeared before this court to challenge his sentence. In March 2009, a jury convicted
Dávila of robbing an FDIC-insured bank using force and intimidation, in violation of 18 U.S.C. § § 2113(a), (d) (" Count One" ), and of carrying and brandishing a firearm to commit that robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (" Count Two" ). As to Count One, the district court imposed a mandatory life sentence pursuant to the federal " three strikes" statute, 18 U.S.C. § 3559(c)(1), and as to Count Two, it sentenced
Dávila to the mandatory minimum of 84 months' imprisonment, to be served consecutively. In
Dávila's first appeal, he argued that the district court erred in sentencing him under the " three strikes" statute. We agreed and remanded for resentencing.
At the resentencing hearing, the government presented additional evidence about
Dávila's prior offenses. The district court found that the evidence established that
Dávila was a career offender, and the court enhanced Dávila's Guidelines sentence accordingly. As a result,
Dávila received a sentence of 300 months for Count One and 120 months for Count Two, for a total of 420 months' imprisonment.
Dávila now appeals his second sentence, arguing that the district court erred by permitting the government to introduce additional evidence at resentencing to support the career offender enhancement. After careful consideration, we affirm.
The details of Dávila's offense conduct and first sentencing were described thoroughly in United States v.
Dávila-Félix, 667 F.3d 47 (1st Cir. 2011) (" Dávila I" ), so we provide only a brief recitation of those facts here.
In 2003, beginning in May and ending in November,
Dávila participated in a string of six bank robberies in Puerto Rico. The Commonwealth arrested
Dávila and charged him with armed robbery and related weapons offenses arising out of five of the six robberies. The fourth robbery that took place on September 8, 2003, however, was not included in the charges.
Dávila pled guilty and received a six-year sentence.
In April 2008, Dávila was again indicted, this time for violations of federal law stemming
from the previously uncharged September 8, 2003, robbery. Before trial began, the government filed an information pursuant to 21 U.S.C. § 851(a)(1), giving notice that it intended to seek a mandatory life sentence under the federal " three strikes" statute, 18 U.S.C. § 3559(c)(1). The information listed four prior convictions that the government believed triggered the " three strikes" statute: (1) a May 23, 1993, conviction for second-degree murder; (2) a June 25, 1993, conviction for violations of Article 401 of the Controlled Substances Act of Puerto Rico; (3) a July 20, 2000, conviction for a violation of Article 404 of the Controlled Substances Act of Puerto Rico; and (4) the April 5, 2004, conviction for bank robbery and weapons violations.
After a four-day trial, the jury convicted Dávila on both the robbery and firearm counts, and he was sentenced on September 29, 2009. At that sentencing hearing, the district court found that
Dávila had two prior violent felony convictions: (1) the second-degree murder conviction from May 26, 1993, and (2) the armed bank robbery conviction from April 5, 2004. The sentencing judge began by observing that these two convictions qualified
Dávila as a career offender, but ultimately concluded that the prior offenses triggered a mandatory life sentence under the " three strikes" statute. Accordingly, the district court sentenced
Dávila to life imprisonment as to Count One, and to the mandatory minimum of 84 months for Count Two, to be served consecutively.
Dávila's first appeal followed. He argued that his sentence was imposed in error because his April 5, 2004, armed robbery conviction did not qualify as a predicate offense under either the " three strikes" or career offender provisions. In
Dávila I, this court agreed, holding that the April 2004 conviction did not qualify as a prior conviction for " three strikes" or career offender purposes because the April 2004 conviction occurred after -- not prior to --
Dávila's commission of the September 8, 2003, offenses. 667 F.3d at 52, 55.
Additionally, we found that the record on appeal was inadequate to establish that
Dávila's June 25, 1993, conviction qualified as a " ...