Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 18-1089

UNITED STATES OF AMERICA,

Appellee,

v.

ÁNGEL L. RODRÍGUEZ-GONZÁLEZ,

Defendant, Appellant.

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

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Torruella, Lynch, and Kayatta, Circuit Judges.

Lydia Lizarríbar-Masini on brief for appellant. David C. Bornstein, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, on brief for appellee.

June 27, 2019 LYNCH, Circuit Judge. This is an appeal raising an

issue of sufficiency of evidence as to Ángel L. Rodríguez-

González's criminal convictions and challenging one aspect of

his sentence.

After a jury trial, Rodríguez was convicted of

conspiracy to commit a Hobbs Act robbery,

(a),

committing a Hobbs Act robbery,

§ 1951(a), and brandishing a

firearm during a Hobbs Act robbery, id. § 924(c)(1)(A)(ii), in

connection with an armed robbery of a bar in Puerto Rico. He

received a within-guidelines sentence of forty-six months'

imprisonment for the two Hobbs Act robbery counts, to be served

concurrently with one another, and seven years' imprisonment for

the firearm offense, to be served consecutive to the Hobbs Act

robbery counts, for a total of 130 months' imprisonment. The

full sentence was made consecutive to Rodríguez's undischarged

Puerto Rico revocation sentence for an unrelated drug offense.

Rodríguez challenges the sufficiency of the evidence

linking him to the robbery. He also alleges that the imposition

of the federal sentence consecutive to his Puerto Rico

revocation sentence was an abuse of discretion. We affirm his

convictions and his sentence.

I.

Because Rodríguez challenges the sufficiency of the

evidence to support his convictions, we recite the facts in the

- 2 - light most favorable to the verdict. United States v.

Rodríguez-Milián,

(1st Cir. 2016). This

recitation of the facts largely disposes of his meritless

sufficiency argument.

On April 23, 2016, Rodríguez rented a black 2012

Nissan Versa with Puerto Rico license plate number ICK309 from a

small car-rental business in Santa Isabel, Puerto Rico.

Rodríguez gave the owner of the car-rental business a copy of

his driver's license and forty dollars to rent the car for one

day. The next day, Rodríguez called the owner and stated that

he was going to keep the car for another day. On April 25,

2016, at approximately 6:00 p.m., the owner called Rodríguez and

asked when he would return the car. Rodríguez replied that he

was on his way back and would return it soon.

Some time between 6:00 and 6:30 p.m. that day, two men

parked that same rental car some fifty to sixty feet away from

the car-rental business, in front of a neighbor's house. The

neighbor saw them leave the rental car and walk to El Mangoito,

a bar that was a few blocks down the road.

Inside the bar, the taller of the two men walked up to

the bar's owner, pointed a gun at him, said, "this is a

robbery," and told him to "take out the money." The bar owner

described this robber as tall, wearing dark clothing, masking

his face with his shirt, and carrying a loaded gun. The bar

- 3 - owner gave the tall robber approximately $580, emptying the cash

register.

The bar owner then saw the other robber (who was

shorter and had also masked his face) press a gun, covered by

his shirt, into a customer's back, telling the customer to give

him "what you have on you." The tall robber then pushed a

"silver plated" revolver loaded with copper-jacketed bullets

against the customer's head, while the short robber pointed his

gun at the customer's side. They took the customer's gold neck

chain, watch, car keys, and cell-phone.

On the way out of the bar, the short robber pointed

his gun at the bar owner and demanded and received an almost-

full one-liter bottle of Johnnie Walker Black Label Scotch

whisky. The customer asked the short robber to return his car

keys, and that robber threw the car keys and neck chain back to

the customer as he and the tall robber fled. The robbery was

recorded on the bar's surveillance camera. Because of the

robbery, the bar owner was forced to close the bar early that

day.

The neighbor and the bar owner saw the robbers go back

to the rental car and drive away. The neighbor wrote down the

rental car's make, model, and license plate number, and gave

that information to the bar owner, who then contacted the

police.

- 4 - Around 6:30 p.m., three police officers in a marked

patrol car were dispatched to the bar, where they spoke to both

the bar owner and the neighbor. The bar owner described one of

the robbers as "tall," "thin," and "white."

The officers had been informed that the rental car was

registered to the owner of the car-rental business. The

officers interviewed that owner, who identified Rodríguez as the

renter, gave them a copy of Rodríguez's driver's license, and

said Rodríguez had recently called him and said he was about to

return the car. One of the officers observed that Rodríguez's

driver's license listed his height as six feet and one inch,

which fit the bar owner's description of one of the robbers as

"tall."

The officers moved their patrol car to a street near

the car-rental business and waited there. About fifteen minutes

later, two men later identified as Rodríguez and Jerry Colón-

Figueroa1 arrived with the rental car at the car-rental business,

but upon seeing the officers, drove the car past the business

and parked several houses away. Rodríguez sent a text message

to the car-rental business owner at 7:35 p.m. stating, "Dude I

am in front of your [business] and there is a patrol car and it

is clear."

1 Jerry Colón-Figueroa was named as a co-defendant in this case and pleaded guilty pursuant to a plea agreement.

- 5 - The officers drove up to the rental car and arrested

Rodríguez and Colón.2 After the arrest, police officers searched

the rental car. Inside, they found an unloaded nickel-plated

starter gun with a black handle and a black bag containing a

loaded nickel-plated .38 Colt revolver with a brown handle. In

the rental car, officers also found an approximately half-empty

one-liter bottle of Johnnie Walker Black Label Scotch whisky,

imported into Puerto Rico from Scotland.

The officers also searched Rodríguez and Colón and

recovered, among other things, the bar customer's watch and a

total of $265. The officers also seized from Rodríguez his

cell-phone, which contained the text message he had sent to the

car-rental business owner, a photograph of Rodríguez, and a

photograph of a .38 Colt revolver (taken three days before the

robbery). The .38 Colt revolver in the photograph had a

distinctive mark at the end of its barrel that matched the mark

on the .38 Colt revolver that was found in the rental car.

At trial, the bar owner, the bar customer, and the

neighbor all testified that one of the robbers was noticeably

taller than the other. Rodríguez is taller than Colón.

2 The bar customer testified that he had returned to the bar after unsuccessfully chasing the robbers in his own car, and less than ten minutes later, he learned that the officers had apprehended the robbers.

- 6 - II.

We do not recount the entire procedural history as it

is not relevant to the appeal. But we do highlight the district

court's findings in rejecting Rodríguez's motion for judgment of

acquittal pursuant to Federal Rule of Criminal Procedure 29.

As to the Hobbs Act robbery charges, Rodríguez argued

in his Rule 29 motion that the evidence did not show that the

robbery affected interstate commerce. The district court ruled,

to the contrary, that "the government need only . . . produce

evidence of a realistic possibility that the robbery had some

slight or minimal impact on Interstate Commerce" and then gave

the reasons the burden had been satisfied. The evidence showed

that the stolen whisky was labeled and bottled in Scotland and

imported and distributed into Puerto Rico from abroad, that the

bar owner was forced to temporarily close the bar after the

robbery, and that the bar accepted credit card payment (allowing

an inference that this included cards issued outside of Puerto

Rico).

As to the firearm offense charge, Rodríguez argued

that the government did not proffer sufficient evidence that the

.38 Colt revolver "is a working firearm, was manufactured

outside of Puerto Rico, fires, or complies with the elements of

the firearms as defined in the code." The district court

determined that both weapons fit within the statutory definition

- 7 - of a firearm in

(a)(3) and that the statute does

not require that the government prove the firearms were

operable.

After Rodríguez was convicted, the presentence

investigation report (PSR) calculated a base offense level of

twenty and made no adjustments. The PSR noted that Rodríguez

had a 2015 Puerto Rico state conviction for possession with

intent to distribute controlled substances, for which he was

sentenced to five years of probation, and a 1997 Massachusetts

state conviction for possession with intent to distribute

controlled substances, for which he was sentenced to three years

and one day of imprisonment. The PSR determined that

Rodríguez's criminal history category was II. The PSR stated

that the guidelines sentencing range was thirty-seven to forty-

six months' imprisonment for the Hobbs Act offenses. For the

firearm offense, the guidelines sentence was a consecutive

statutory minimum term of imprisonment of seven years.

(c)(1)(D)(ii); U.S.S.G. § 2K2.4(b). Rodríguez did

not object to the PSR's sentencing guidelines calculation.

Based on representations from defense counsel, the district

court asked the Probation Office to amend the PSR to reflect

that Rodríguez underwent revocation proceedings on June 6, 2017,

for his 2015 Puerto Rico drug conviction and was sentenced there

to five years' imprisonment.

- 8 - Rodríguez asked the district court for a sentence on

the "lower end of the guidelines." The government asked for a

sentence of forty-six months' imprisonment for the Hobbs Act

robbery convictions and an upwardly variant consecutive sentence

of 138 months for the firearm offense.

The district court concluded that the PSR's guidelines

calculation was accurate. The court considered the sentencing

factors in

(a), noting in particular Rodríguez's

personal characteristics, prior convictions, and role in the

offense, as well as the impact on the victim. The court

sentenced Rodríguez to a term of forty-six months' imprisonment

for the two Hobbs Act robbery counts, to be served concurrently

with one another, and an additional term of seven years'

imprisonment for the firearm offense, to be served consecutively

to the Hobbs Act robbery counts, for a total of 130 months; the

whole sentence was to be served consecutively to the Puerto Rico

revocation sentence.3 The court ordered a term of five years of

supervised release following the federal sentence.

Defense counsel objected to the sentence being made

consecutive to the Puerto Rico revocation sentence. The

district court replied that the federal crime "is a totally

separate and independent crime and committed while the defendant

3 The district court expressly declined to make findings as to whether Rodríguez would receive credit for any time served for the revocation sentence.

- 9 - was serving the State sentence." Rodríguez timely appealed.

III.

A. Sufficiency of the Evidence

Rodríguez's appellate challenge is quite limited. He

has waived any challenge to the district court's findings that

the robbery of the bar satisfied the interstate commerce element

of the Hobbs Act robbery convictions because he has failed to

present any argument on that issue.

Rodríguez argues for the first time on appeal, and not

in his Rule 29 motion, that the evidence linking him to the

robbery was insufficient because no witness directly identified

him at trial as one of the robbers and there was no forensic or

scientific evidence connecting him to the robbery. Contrary to

Rodríguez's argument, the mere fact that he made a motion for a

judgment of acquittal is not sufficient to preserve this

argument. See, e.g., United States v. Charriez-Rolón,

(1st Cir. 2019).

Our review of this late-presented issue "is limited to

preventing a 'clear and gross injustice.'"

(quoting United

States v. Ponzo,

(1st Cir. 2017)). There is

none here. As our description of the evidence shows, there was

ample evidence linking Rodríguez to the robbery. He was the

person who rented the car seen near the scene of the robbery and

which the robbers used to try to escape. He was arrested while

- 10 - attempting to return the rental car less than an hour after the

robbery took place, he and his co-defendant had the bar

customer's watch, and the car contained a partially-full one-

liter bottle of Black Label Scotch whisky and two guns.

Rodríguez matched the bar owner's description of the tall

robber, and the .38 Colt revolver retrieved from the car matched

the bar customer's description of the tall robber's gun.

Rodríguez's cell-phone also contained a recent photograph of a

.38 Colt revolver with the same distinctive mark as the one

found in the rental car, as well as the text message he had sent

to the car-rental business owner. This is "powerful evidence

from which the jury rationally could infer [the defendant's]

participation in the armed robbery." United States v. Lugo

Guerrero,

(1st Cir. 2008).

B. Sentencing Challenge

Rodríguez argues that the district court misunderstood

its authority to impose the federal sentence concurrent to the

Puerto Rico revocation sentence.

Nothing in the record suggests that the district court

believed it lacked the authority to impose a concurrent

sentence. The district court explicitly stated that it chose to

make the federal sentence consecutive to the Puerto Rico

revocation sentence because it was for a "totally separate and

independent crime" that Rodríguez "committed while [he] was

- 11 - serving the State sentence" of probation that was later revoked.

The district court also explained that, although it "originally

. . . thought of engaging in an upward departure or variance,"

it ultimately determined that "the way in which [it] . . .

structured the sentence is intended to achieve . . . the proper

punishment in this case, without the need [to] engag[e] in any

variances." This statement further supports that the district

court made a cognizant choice to impose the sentence

consecutively to the Puerto Rico revocation sentence.

The statute specifically allows this choice.

(a) ("[I]f a term of imprisonment is imposed on a

defendant who is already subject to an undischarged term of

imprisonment, the terms may run concurrently or

consecutively . . . ."). As we have said, "consecutive

sentences are 'the default position'" where the defendant is

sentenced for an offense committed while on probation that was

later revoked. United States v. Santiago-Burgos,

(1st Cir. 2014) (quoting United States v. Parks,

(1st Cir. 2012)); see U.S.S.G. § 5G1.3(d) cmt. n.4(C) ("[T]he

Commission recommends that the sentence for the instant offense

be imposed consecutively to the [state or federal] sentence

imposed for the revocation."). The district court did not err.

Affirmed.

- 12 -