FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Daniel R. Domínguez, U.S. District
Brill for appellant.
P. Taddei, with whom Margaret A. Upshaw, Attorney, United
States Department of Justice, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, were
on brief, for appellee.
Thompson, Kayatta, and Barron, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
fourth time before our court, defendant-appellant José
García-Ortiz ("García") asks us to
vacate one of his convictions stemming from an armed robbery
committed in Puerto Rico in the year 2000. He argues that his
conviction for felony murder under 18 U.S.C. § 924(j)
must be vacated because armed robbery committed in violation
of the Hobbs Act, 18 U.S.C. § 1951, does not qualify as
a "crime of violence" under 18 U.S.C. §
924(c). He also disputes the imposition of a restitution
order and raises other issues outside the scope of this
court's limited remand in United States v.
García-Ortiz, 792 F.3d 184, 186 (1st Cir. 2015)
("García III"). For the following
reasons, we affirm García's conviction and
detailed in United States v. García-Ortiz,
528 F.3d 74 (1st Cir. 2008) ("García
I"), García participated in the armed
robbery of a grocery store manager and his security guard
escort as they were delivering around $63, 000 in cash to a
bank. Id. at 77. During an exchange of gunfire in
the course of the robbery, the security guard shot and killed
one of García's collaborators. Id. In
2004, a jury convicted García of aiding and abetting a
Hobbs Act robbery (count one),  aiding and abetting the use or
carrying of a firearm during and in relation to a crime of
violence (count two),  and aiding and abetting felony murder in
the course of using or carrying a firearm in relation to a
crime of violence (count three). Id. at 78-79.
García I, we remanded the case back to the
district court so that it could modify an erroneous life
sentence imposed for count one, for which the statutory
maximum was twenty years. Id. at 85. After
resentencing, García appealed again. We then reversed
on double jeopardy grounds the conviction on count two
(aiding and abetting the use or carrying of a firearm during
and in relation to a crime of violence, in violation of 18
U.S.C. §§ 2, 924(c)(1)(A)) because that count was a
lesser included part of count three. United States v.
García-Ortiz, 657 F.3d 25, 28-29 (1st Cir. 2011)
("García II"). In
García's subsequent resentencing, the district
court imposed, for the first time, a restitution order.
García appealed again, challenging among other things
the imposition of the restitution order. García
III, 792 F.3d at 188-94. We affirmed García's
convictions and sentences on the remaining counts (one and
three). We nevertheless ordered a limited remand of
"only the restitution portion of his sentence"
because the district court had mistakenly
"continued" a restitution order that it had
neglected to impose in the first instance. Id. at
186, 192. On remand following Garcia III, the
district court formally imposed a restitution order for $30,
000, a reduction from the initial order of $60, 000.
present, García stands convicted of aiding and
abetting a robbery committed in violation of the Hobbs Act,
18 U.S.C. § 1951(a) (count one) and aiding and abetting
felony murder in the course of using or carrying a firearm in
relation to a crime of violence, in violation of 18 U.S.C.
§§ 2, 924(j) (count three). His current sentence
consists of 36 months' imprisonment for count one to run
consecutively with a 216-month term for count three, plus
$30, 000 in restitution.
raises several issues in this most recent appeal. Claiming a
change in controlling law since we decided his third appeal,
he first urges us to find unconstitutionally vague the
so-called "residual clause" of 18 U.S.C. §
924(c)(3)(B). That clause treats as a "crime of
violence" any felony offense "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." García reasons that
because section 924(c)'s residual clause is
unconstitutional, and because his Hobbs Act robbery
conviction does not alternatively qualify as a "crime of
violence" under 18 U.S.C. § 924(c)(3)(A)'s
so-called "force clause," his felony murder
conviction, which relies on section 924(c)'s definition
of "crime of violence," must be vacated. Second,
García argues that the district court impermissibly
imposed the restitution order to punish him for his success
on appeal. Finally, in an effort to resuscitate and
reconstitute arguments from previous appeals, García
also argues that the district court should have considered an
amendment to the United States Sentencing Guidelines (the
"Guidelines") when considering whether to apply a
mitigating role adjustment, and should not have imposed the
terms of imprisonment consecutively for counts one and three.
For the following reasons, we reject each of these arguments
and affirm García's convictions and sentence.
conviction for felony murder rests on the proposition that
his offense that led to a death -- armed robbery in violation
of the Hobbs Act -- is a "crime of violence" under
section 924(c). At the time of García's
conviction, there was apparently little reason to doubt that
such an offense satisfied the definition of a crime of
violence contained in the residual clause of section 924(c),
as García raised no objection in this vein in any of
his prior appeals. García now points to two subsequent
decisions of the United States Supreme Court, Johnson v.
United States, 135 S.Ct. 2551 (2015) ("Johnson
II") and Session ...