THOMPSON, Circuit Judge.
His third time before us, Defendant-Appellant José García-Ortiz ("García") asks us to vacate his 2004 robbery conviction, arguing that the government did not present enough evidence at his jury trial to sustain it. He also argues that the district judge erred at his sentencing by failing to consider certain of his mitigating arguments, by ordering his sentences be served consecutively instead of concurrently, and by improperly imposing $60,000 in restitution.
Seeing error only in the district court's restitution order, we affirm García's conviction, and vacate and remand only the restitution portion of his sentence.
As this is García's third appeal, we will not repeat another detailed recitation of the facts. But here's our mise-en-scène.
In 2001, a food warehouse manager and his security escort were walking to the manager's car with a bag of cash, which they planned to deposit at the bank. Two men ran toward them. One of the men grabbed the guard, and after a struggle, gunshots were fired. The guard, who was apparently armed, returned fire and shot and killed one of the ill-fated bandits.
After the mêlée, the manager heard voices from the nearby-parked getaway car yelling "kill him." One of the robbers grabbed the bag of cash while the manager lay on the ground, beseeching mercy. The manager heard two more shots (presumably from the robbers because the wounded guard had already emptied his chamber), but fortunately neither the manager nor guard were killed. The getaway car sped away, and the assailants made off with $60,000.
Forensics later showed that three guns were fired during the robbery, one belonging to the guard. The getaway car, which had been reported stolen about a month before the robbery, was recovered nearby the scene, donning a bullet hole in one of the side windows. The rear window was also completely broken out and shell casings lay about, the backseat blood-stained.
Law enforcement naturally started investigating. Police suspected García was involved in the robbery after they discovered a photo of him with the deceased robber at a mechanic shop that had been under police surveillance.
The FBI brought García (and other suspects) in to collect their DNA samples. García also consented to a body search, during which the FBI found what appeared to be a bullet wound on his body with metallic residue. Another piece of damning evidence, the FBI lab confirmed that García's DNA was in the backseat of the abandoned escape ride, prompting the FBI to exclude the other suspects.
After a 14-day trial, in August 2004 a jury convicted García on all three counts. At sentencing, the district judge handed down two concurrent life-imprisonment sentences on Counts One and Three, and a ten-year consecutive prison sentence on Count Two. García appealed both the conviction and sentences.
In 2008, we affirmed the conviction but vacated the sentence as to Count One because the district judge impermissibly sentenced García to life, even though the statutory maximum for that charge was 20 years. See United States v. García-Ortiz, 528 F.3d 74, 84-85 (1st Cir.2008) ("García I"). We remanded to the district court for re-sentencing on that count. Id. at 85.
On remand, the district judge sentenced García to 50 months on Count One, to be served concurrently with a 240-month sentence on Count Three. See United States v. García-Ortiz, 657 F.3d 25, 27-28 (1st Cir.2011) ("García II"). The judge also gave García an additional (consecutive) five years on Count Two. See id. at 27.
In April 2013, the district court again re-sentenced García, this time to 36 months on Count One and 240 months on Count Three, to be served consecutively. That made for a grand total of 23 years (two years fewer than the previous sentence). The court also ordered García to pay $60,000 in restitution to the food warehouse.
García now appeals for a third time. First, he says his armed robbery conviction — and, as a result, the felony murder conviction premised on the robbery — should not stand because the evidence at his trial established only that he was present at the scene of the robbery. Second, he argues the district judge erred (again) at sentencing by failing to properly consider the sentences of defendants in similar cases. Third, García contends, the judge mistakenly ordered restitution. Finally, he argues (in a brief he filed on his own, after his counselled brief was filed) that the district court erroneously ordered that he serve the sentences for Count One and Count Three consecutively, when he should only have to serve them concurrently.
We find that only García's restitution argument bears any teeth. We address each grievance in turn.
García has it right that if his robbery conviction was premised on his role as an aider and abettor, his "mere association with the principal, or mere presence at the scene of a crime, even when combined with knowledge that a crime will be committed, is not sufficient to establish ... liability." United States v. Medina-Román, 376 F.3d 1, 4 (1st Cir.2004) (citation and alterations omitted). Rather, "[i]n order to sustain a conviction for aiding and abetting the government must prove, in addition to the commission of the offense by the principal, that the defendant consciously shared the principal's knowledge
Recognizing that we have twice "rejected [his] arguments attacking the sufficiency of the evidence," García nonetheless urges us to reassess whether the evidence presented at his trial was enough to convict him of armed robbery. According to García, the government only established his "mere presence" at the scene of the robbery — not his "knowledge and active participation" in the crime, as aiding and abetting law requires.
García's argument fails — yet again. Well established is that "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Negrón-Almeda v. Santiago, 579 F.3d 45, 50 (1st Cir.2009) (citation omitted and quotations omitted). That is, "a legal decision made at one stage of a criminal ... proceeding should remain the law of that case throughout the litigation, unless and until the decision is modified or overruled by a higher court." United States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004). "We review de novo whether the law of the case doctrine applies." Negrón-Almeda, 579 F.3d at 50 (citation omitted).
In García I, we specifically rejected García's attacks on the sufficiency of the evidence. See García I, 528 F.3d at 83. García doesn't dispute that. Even still, he says, the law of the case doctrine should not apply here because exceptional circumstances call for a fresh look.
To be sure, the law allows us to "reopen a matter previously decided on a showing of exceptional circumstances-a threshold which, in turn, demands that the proponent accomplish one of three things: show that controlling legal authority has changed dramatically; proffer significant new evidence, not earlier obtainable in the exercise of due diligence; or convince the court that a blatant error in the prior decision will, if uncorrected, result in a serious injustice." Negrón-Almeda, 579 F.3d at 51-52 (citation and quotations omitted). But in García II, we already found that García "made no showing of any such exceptional circumstance." García II, 657 F.3d at 30. And on this go-round, we see no reason to doubt that decision.
García claims a recently-decided Supreme Court case clarifying the scienter (i.e., knowledge) requirement for aiding and abetting liability, Rosemond v. United States, ___ U.S. ___, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), demands that García I came out the wrong way.
In Rosemond, the Supreme Court was tasked with deciding "what the Government must show when it accuses a defendant of aiding or abetting" a § 924(c) offense. 134 S.Ct. at 1243. The Court held that "the Government makes its case by proving that the defendant actively participated in the underlying ... violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission." Id. "[T]hat means knowledge at a time the accomplice can do something with it — most notably, opt to walk away." Id. at 1249-50.
Rosemond, while a significant change in the law for some circuits, does nothing for
García also has not presented us with any new evidence that might convince us to change our tune. And he has not persuaded us that any "manifest injustice looms." See United States v. Bell, 988 F.2d 247, 251 (1st Cir.1993). To be sure, García did not even raise this specific argument on his first appeal (that the evidence was lacking as to his advance knowledge that his cohorts would bring a gun to the robbery), which would have been the appropriate time to do so. He instead chose to assert he was not even present at the robbery and focused his arguments on other sufficiency and evidentiary issues. "[N]o credible explanation has been offered for [his] failure to assert the challenge in a more timely fashion." See id. Even at this last-ditch juncture, García has made no solid effort to convince us a blatant error occurred when we made our García I sufficiency determination (or when we upheld it in García II). García does not parse out why the specific evidence presented to the jury at his trial was not enough to convict him of aiding and abetting armed robbery. See United States v. Wallace, 573 F.3d 82, 89 (1st Cir.2009) ("A finding of manifest injustice requires a definite and firm conviction that a prior ruling on a material matter is unreasonable or obviously wrong, as well as a finding of prejudice." (citation and
Thus, despite García's persistence, neither twice — nor thrice — over were his sufficiency arguments good to repeat. We see no reason to disturb our 2008 finding that the government presented sufficient physical and circumstantial evidence at trial that García participated in the robbery, and the relief he seeks simply cannot be achieved by making the same repeated request over multiple appeals. As we have said before, and as is applicable here, "[t]he law of the case doctrine dictates that all litigation must sometime come to an end." Bell, 988 F.2d at 252. García's insistence that he was "merely present" at the scene of the crime is a non-starter. We will not further belabor the point.
Next, García argues the district court erred at sentencing in three respects. First, the judge failed to adequately address why García's sentence did not line up with the sentences given to other defendants in similar cases, and had the court made such a consideration, García's sentence would have been closer to 15 years. Second, the judge mistakenly "continued" his restitution order, even though he had never ordered restitution in the first place. And third, his sentences for Counts One and Three should be served concurrently, not consecutively, as the district court ordered.
In assessing whether a district court has committed a sentencing error, we "must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range." United States v. Martin, 520 F.3d 87, 92 (1st Cir.2008) (citation and quotations omitted). "Once the appellate court has satisfied itself that the sentence is procedurally sound, it must proceed, under the same abuse of discretion rubric, to review the substantive reasonableness of the sentence, taking into account the totality of the circumstances." Id. (citation omitted).
Here, García focuses on the procedural reasonableness of his sentence,
While the district court did not specifically distinguish every one of the cases García cited, it need not have. The "record makes manifest" that the judge considered García's arguments regarding § 3553(a)(6), rejecting them because "when you decide to go in a car and attack a person that most probably is with a weapon, to take $63,000, you have to know for sure that there may be somebody killed." See also United States v. Madera-Ortiz, 637 F.3d 26, 31 (1st Cir.2011) ("We have confirmed that a sentencing court's explanation need not be precise to the point of pedantry." (citation and quotations omitted)). The courts in the comparator cases García offered found those defendants' criminal participation to be minimal. Here, the district court said enough to indicate that García was not in the same camp. Thus, we find that the sentence was not procedurally unreasonable.
We also make quick work of García's argument regarding the propriety of the district court's restitution order. The government has conceded error, and we agree one occurred and that the proper recourse is a remand on this issue.
A district court is statutorily required "to order a defendant to make restitution to victims of certain enumerated crimes of violence," including armed robbery. United States v. Salas-Fernandez, 620 F.3d 45, 48 (1st Cir.2010); 18 U.S.C. § 3663A(a)(1), (c)(1)(A). An "order for restitution should be tailored to require return of the purloined property or its equivalent." Salas-Fernandez, 620 F.3d at 48.
At García's most recent sentencing, the district judge ordered that restitution "continue[] to be part of the judgment," even though (the mandatory) restitution had never previously been ordered, such that it could continue. While a "detailed explication of the court's reasoning" in imposing a restitution order is not necessary, id., the court here provided none. Particularly, the court did not at all address whether a payment schedule would be appropriate. See id. at 49 (citing 18 U.S.C. § 3664(f)(2)) ("The [Mandatory Victims Restitution Act] requires a court, in setting out a payment schedule, to consider a defendant's financial circumstances and prospects."). Thus, given the court's mistaken view that it was merely continuing an already-imposed restitution order, we think the appropriate course of action another remand to allow the court to properly address restitution.
Finally, García argues in a pro se brief that at re-sentencing, the district court erroneously ordered he serve the sentences for Count One and Count Three consecutively, as opposed to concurrently.
The backdrop for García's argument is § 924(c)'s mandate that "no term of imprisonment imposed on a person under [§ 924(c)] shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence... during which the firearm was used, carried, or possessed." 18 U.S.C. § 924(c)(1)(D)(ii). Recall that the second time the district judge sentenced García, he ordered that the sentence for the § 924(c) conviction run consecutively to the felony murder sentence.
Then, in García II, we vacated the § 924(c) conviction and sentence for double jeopardy reasons and remanded for re-sentencing. We also noted in García II that in light of the fact that we vacated the § 924(c) conviction,
García II, 657 F.3d at 31 (citations omitted).
With our warning in mind, the government argued at re-sentencing that García's § 924(j) sentence must run consecutively to his § 1951(a) sentence because even though the § 924(c) conviction was vacated, the underlying felony was still based on a violation of § 924(c).
Here's where García falls short. Although the district court did end up handing down consecutive sentences, the court rejected the government's argument that the consecutive sentences were mandatory, and instead exercised its discretion to impose consecutive sentences. Notably, when the government argued that the court was required to run the sentences
For these reasons, we affirm García's conviction and sentences, save the restitution order, which we vacate and remand consistent with this opinion.
We expect that this fourth sentencing will provide some finality to this protracted appellate matter.
18 U.S.C. § 2 is the aiding and abetting provision, which provides:
In any event, García's one-sentence supplication (in a letter submitted post-briefing) asking us to consider this issue does not give us enough to go on, and so this issue is waived for lack of development. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
