FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]
A. Morales-Ramos on brief for appellant.
Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, and B. Kathryn Debrason,
Assistant United States Attorney, on brief for appellee.
Howard, Chief Judge, Torruella and Lynch, Circuit Judges.
Santiago-Reyes appeals from the reduced sentence he received
after a limited remand for resentencing. He argues that the
district court should have dismissed his 18 U.S.C. §
924(c) count in light of Johnson v. United States,
135 S.Ct. 2551 (2015). We disagree. Santiago-Reyes had a
pending 18 U.S.C. § 2255 motion to vacate his sentence,
based on the same Johnson grounds, which the court
said it would entertain in a separate hearing. His motion to
dismiss was (1) premature, and (2) barred by the mandate
rule. Accordingly, we affirm Santiago-Reyes's sentence,
and we remand with instructions for the district court to
address the pending § 2255 motion as soon as
the background for why the case was remanded for
resentencing. On April 28, 2012, the Puerto Rico Police
Department received a report that three individuals had
robbed a home and fled in a red Toyota Yaris. Shortly
thereafter, two masked men entered a store, Agrocentro
Solá. One man held the two employees at gunpoint,
while the other grabbed $600 from the cash register. The men
then pushed the employees against the wall, hit one of the
employees in the head, and stole both employees'
cellphones and an additional $300 before fleeing by car.
to the employee's 9-1-1 call, the police spotted a red
Toyota Yaris nearby and gave chase. When the vehicle finally
stopped, the officers arrested the three men inside
--including the defendant in this case, Rafael Santiago-Reyes
-- and seized a revolver, two masks, cellphones, and
approximately $900 in cash from the car.
later confessed to the home robbery and to possessing a
weapon during the Agrocentro Solá robbery. For his
role in the Agrocentro Solá robbery, Santiago-Reyes
was indicted on two counts: (1) interference with commerce by
threats or violence, in violation of 18 U.S.C. § 1951
("The Hobbs Act"); and (2) carrying a firearm
during and in relation to a crime of violence, in violation
of 18 U.S.C. § 924(c). He pled guilty to both counts.
plea agreement stipulated that Santiago-Reyes's total
offense level was 17 (after applying a three-level reduction
for acceptance of responsibility). Together with a criminal
history category ("CHC") of I, the recommended
Guidelines sentence range ("GSR") was 20-34 months
of imprisonment for Count 1, and 66 months of imprisonment
for Count 2.
district court, however, refused to apply the three-level
reduction at the sentencing hearing, and instead imposed a
two-level enhancement for reckless endangerment during
flight, and another two-level enhancement for obstruction of
justice. Based on a total offense level of 24, and CHC of I,
the applicable GSR for Count 1 became 51-61 months of
imprisonment. The judge ultimately sentenced Santiago-Reyes
to 51 months of imprisonment for Count 1 and a consecutive 66
months of imprisonment for Count 2.
February 2014, Santiago-Reyes appealed his sentence, arguing
that the district court erred in imposing the enhancements,
and in refusing to grant the three-level reduction for his
acceptance of responsibility. This court vacated the sentence
in a judgment order, and remanded the case back to the
district court with the following instructions:
While the record supports application of the [reckless
endangerment during flight] enhancement to
Pag[á]n-Bibiloni, who was the driver of the vehicle
fleeing the scene of the robbery, it is not clear whether the
enhancement may be applied to D[í]az-Cestary and
Santiago-Reyes, who were passengers in the vehicle, without
facts establishing they "aided or abetted, counseled,
commanded, induced, procured, or willfully caused"
reckless endangerment during flight. The parties did not
raise or brief application of the enhancement to
D[í]az-Cestary and Santiago-Reyes on this basis, nor
did the court adequately explain its reasons for applying the
enhancement to them. The judgment is therefore vacated and