Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 08-2259

UNITED STATES OF AMERICA,

Appellee,

v.

SANDRY GARCÍA-GARCÍA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Judge José A. Fusté, U.S. District Judge]

Before

Lipez, Baldock,* and Howard, Circuit Judges.

Rafael Anglada-Lopez for appellant. Lucas Cass, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez Sosa, Assistant United States Attorney, were on brief for appellee.

December 4, 2009

* Of the Tenth Circuit Court of Appeals, sitting by designation. BALDOCK, Circuit Judge. A jury convicted Defendant-

Appellant Sandry García-García of carjacking in violation of

(2) and of brandishing a firearm during and in

relation to a crime of violence in violation of

(c)(1)(A)(ii). The district court denied Defendant’s motions

for acquittal and a new trial and sentenced him to a total of 181

months. On appeal, Defendant first argues the district court

“lacked jurisdiction” because the victim was not driving or a

passenger in the vehicle when the alleged carjacking took place.

Defendant, then, asserts that because he was not properly convicted

of an underlying crime of violence, his firearm conviction cannot

stand for “lack of jurisdiction.” Defendant also claims that

because police only conducted photo lineups, the out-of-court

identifications were impermissibly suggestive.1 Exercising

1 Defendant additionally argues the jury pool was not fairly representative because he was “tried and convicted by a jury in a District where 84.1% of all Puerto Rico residents do not command English ‘very well.’” Brief of Defendant-Appellant at 19. Other than that bald assertion, Defendant provides no legal or factual support for such a claim. We, therefore, refuse to consider it. See United States v. Zannino,

(1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”). Regardless, we have repeatedly rejected such a claim. See United States v. Rodríguez-Lozada,

(1st Cir. 2009) (explaining that an English proficiency requirement for jurors, including in Puerto Rico, does not violate a defendant’s Sixth Amendment right to a jury made up of a fair cross section of the community); United States v. González-Vélez,

(1st Cir. 2006) (same); United States v. Dubón-Otero,

(1st Cir. 2002)(same).

-2- jurisdiction under

, we reject his arguments and

affirm the district court.

I.

Because the attack on Federico López-Villafañe (“López”),

which gave rise to Defendant’s present convictions, has already

come before this court in United States v. García-Álvarez,

(1st Cir. 2008), we recite here only the minimum facts necessary

to explain our holding. On the morning of April 12, 2006, López

exited his apartment building and walked towards his car. As he

approached his car, four assailants attacked him. Three of the

assailants covered their faces with t-shirts. At the moment of the

attack, López was standing about a foot and half away from his car.

According to López, two of the four attackers carried nickel-plated

automatic pistols. During the scuffle, the assailants’ t-shirt-

masks fell, revealing their faces. López would later testify that

Defendant hit him with a nickel-plated pistol on his forehead,

face, knees, and shins. The violence escalated. Another attacker

used a rock to beat López while the others held him. They then

forced him into his building’s basement. The attackers duct taped

his feet, hands and eyes. They demanded money, held a gun to his

head, and threatened to kill him if he did not cooperate. They

took his house keys, car keys, and pocket money. At one point, the

attackers went upstairs to López’s apartment to search for money.

Eventually, López fled the basement. A neighbor’s bodyguard

-3- arrived and called the police. López then saw his car leaving from

the opposite side of the building. He was later taken to a

hospital where he received stitches to his head and legs and,

later, knee surgery.

Three days later, police showed López dozens of

photographs at police headquarters. He marked about twenty, but

did not definitively identify any one picture. A month later,

police showed him four to five sheets, each containing six to nine

photographs. From this array, López identified Defendant as one of

the men who assaulted him and took his car. He also later

identified Defendant in court.

López’s maid, Clemencia Lewis, also encountered the

attackers when they searched his apartment for money. She

testified that she came face-to-face with Defendant, another

assailant pointed a silver gun at her, and a third person stood by.

Lewis further testified Defendant pushed her onto the floor, tied

her hands and feet, and covered her head with a towel. She

identified Defendant as her attacker from a photo lineup the month

following the attack and later identified him again in court.

II.

Defendant first argues the district court lacked

jurisdiction as to his § 2119(2) conviction because López was not

driving or a passenger in his vehicle when the alleged carjacking

took place. “Whoever, with the intent to cause death or serious

-4- bodily harm takes a motor vehicle that has been transported,

shipped, or received in interstate or foreign commerce from the

person or presence of another by force and violence or by

intimidation, or attempts to do so,” resulting in “serious bodily

injury,” is guilty of the crime of carjacking punishable by up to

twenty-five years in prison.

(2). Defendant

argues the carjacking statute requires the Government to prove he

intended to cause death or serious bodily harm at the precise

moment he demanded or took control over the car by force or

intimidation. He reasons that because the evidence at trial

indicated he and the other assailants did not drive López’s car

away for twenty to thirty minutes after they beat, bound, and stole

the car keys from López, the Government failed to establish he

possessed the intent to cause death or serious bodily harm at the

time the car was actually stolen.

Defendant’s second argument flows from the first. Any

person who brandishes a firearm during and in relation to any crime

of violence shall be sentenced to a minimum of seven years in

prison.

(c)(1)(A)(ii). Defendant claims because

his conviction of a crime of violence was improper for “lack of

jurisdiction,” his § 924(c)(1)(A)(ii) firearm conviction is also

fatally flawed for “lack of jurisdiction.”

We note for the sake of clarity and accuracy Defendant’s

first and second arguments are inherently not jurisdictional.

-5- Essentially, he asserts the Government did not prove all elements

of the crimes of §§ 2119(2) and 924(c)(1) because it failed, first,

to show he intended to cause death or serious bodily harm at the

moment of the taking of the vehicle and, second, that he was

properly convicted of a crime of violence. Lack of evidence as to

an element of a federal crime, however, means the Government has

not met its burden sufficient to support a conviction, not that the

district court is deprived of jurisdiction to adjudicate the case.

See United States v. González-Mercado,

(1st Cir.

2005) (explaining that the argument that the facts are insufficient

to satisfy the “results in serious bodily injury” element of

(2) did not call into question the district court’s

jurisdiction, but rather the sufficiency of the evidence relating

to the defendant’s guilt). A federal criminal case generally lies

within the subject matter jurisdiction of a district court if the

indictment charges that the defendant committed a crime defined by

Congress as a federal crime. United States v. González,

(1st Cir. 2002). Therefore, unless Congress provided

otherwise, subject matter jurisdiction existed in the present case

because Defendant was charged in district court under §§ 2119(2)

and 924(c)(1), which are federal criminal statutes. See id.

(explaining that unless Congress provided otherwise, subject matter

jurisdiction existed in the case because the defendant was charged

-6- in district court under

, which is a federal

criminal statute).

Therefore, Defendant’s argument, properly characterized,

challenges the sufficiency of the Government’s evidence, not the

district court’s constitutional or statutory authority to

adjudicate the case against him.

Construing his argument as

a challenge to the sufficiency of the evidence supporting his

convictions, we review de novo, “evaluating whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” García-Álvarez,

(quoting United States v. Meléndez-Torres,

(1st Cir. 2005) (internal quotations and citations omitted)).

Even properly construed, Defendant’s argument is

unpersuasive. Last year, we faced a similar argument made by one

of Defendant’s compatriots in this criminal enterprise (who, as it

happens, is Defendant’s uncle). In García-Álvarez, we explained

§ 2119(2) requires the Government to establish the element of

intent to cause death or serious bodily harm at the time the

defendant takes control of the motor vehicle. García-Álvarez, 541

F.3d at 15–16. The victim need not be in close proximity to the

motor vehicle at the time of the taking. Id. at 16. On these

facts, we concluded Defendant and his accomplices gained

constructive control over López’s motor vehicle in the apartment

-7- building’s basement, when they forced López to turn over his car

keys. Id. (citing United States v. Savarese,

(1st

Cir. 2004)). We also determined that the assailants’ intent to

cause death or serious bodily harm was “more than amply

established” by the assailants’ use of force, including the use of

firearms, and the infliction of serious bodily harm upon López.

Moreover, “it was only upon being threatened with further

violence and even death that López surrendered his car keys.”

Given that the attackers’ assault on López left him bleeding and in

need of surgery, we concluded “it is beyond question that the

assailants possessed the requisite intent to cause death or serious

bodily injury.”

In ordinary circumstances, “it is axiomatic that new

panels are bound by prior panel decisions in the absence of

supervening authority” from the Supreme Court or an en banc court.

United States v. Holloway,

(1st Cir. 2007).

Defendant acknowledged this rule at oral argument but seemed to

suggest that extraordinary circumstances existed warranting

reversal of our fellow panel because the García-Álvarez opinion

conflicted with the Supreme Court’s precedent in Holloway v. United

States,

(1999). We understand Holloway to clarify

that “[t]he intent requirement of § 2119 is satisfied when the

Government proves that at the moment the defendant demanded or took

control over the driver’s automobile the defendant possessed the

-8- intent to seriously harm or kill the driver if necessary to steal

the car (or, alternatively, if unnecessary to steal the car).”

Holloway,

. This is precisely the basis of our

holding in García-Álvarez, in which we determined that at the

moment Defendant and the other assailants “took control” over

López’s car by taking his keys from him at gunpoint, they possessed

the intent to seriously harm or kill him, satisfying § 2119's

intent requirement. Because we find no conflict between García-

Álvarez and Holloway and, therefore, no extraordinary

circumstances, we conclude we are bound by the panel’s holding in

García-Álvarez that the intent requirement is satisfied when a

defendant intends to cause death or serious bodily injury at the

time he takes control of the vehicle, whether or not the car is

immediately driven. The evidence in this case was more than

sufficient to permit the jury to find that Defendant possessed such

intent. Accordingly, we affirm Defendant’s § 2119(2) and related

§ 924(c)(1)(A)(ii) convictions.

III.

Defendant’s photo lineup argument is equally

unpersuasive. Defendant contends that because his out-of-court

identifications were conducted only by photo spreads, they were

impermissibly suggestive, giving rise to a very substantial

likelihood of misidentification. The district court rejected this

argument and denied his motion to suppress the out-of-court photo

-9- lineup identifications. The court reasoned that an identification

need not be done through a live lineup and, without any specific

claim of impermissibly suggestive procedure, the reliability of a

photo lineup is a question of credibility for the jury.

We “uphold a district court’s denial of a motion to

suppress if any reasonable view of the evidence supports it.”

United States v. de Jesus-Rios,

(1st Cir. 1993).

No one contests that the police only conducted photo lineups to

identify Defendant. We note, however, the police tried to conduct

a live lineup shortly after the incident, but Defendant fled,

making that impossible. Furthermore, Defendant has provided no

legal precedent to support his claim that conducting photo lineups

alone, instead of a live lineup, is impermissibly suggestive. He

also has not provided any evidence that the way in which the police

conducted the photo lineups was impermissibly suggestive or

unreliable. His claim consequently fails. See García-Álvarez,

(explaining that because the defendant did “not flag any

of the procedures utilized during this [photo] identification as

impermissibly suggestive,” his claim failed).

For the foregoing reasons, the judgment of the district

court is affirmed.

-10-