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United States v. Santiago-Reyes

United States Court of Appeals, First Circuit

December 15, 2017

UNITED STATES OF AMERICA, Appellee,
v.
RAFAEL SANTIAGO-REYES, Defendant, Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Francisco A. Besosa, U.S. District Judge]

          Javier A. Morales-Ramos on brief for appellant.

          Rosa 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.

          Before Howard, Chief Judge, Torruella and Lynch, Circuit Judges.

          LYNCH, Circuit Judge.

         Rafael 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 practicable.

         I.

         We give 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.

         Responding 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.

         Santiago-Reyes 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.

         The 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.

         The 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.

         In 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.[1] 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 thi ...

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