United States v. James Manuel Romero

Citations: 122 F.3d 1334; 1997 Colo. J. C.A.R. 1667; 1997 U.S. App. LEXIS 22257; 1997 WL 473128Docket: 96-2078

Court: Court of Appeals for the Tenth Circuit; August 20, 1997; Federal Appellate Court

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James Manuel Romero appeals his conviction and sentence for carjacking and robbery. He raises several arguments on appeal: 

1. Insufficient evidence of intent to cause death or serious bodily harm under the federal carjacking statute.
2. Improper jury instructions and prosecutorial comments suggesting that conditional intent sufficed for a carjacking conviction.
3. Questioning Congress's authority under the Commerce Clause to enact the federal carjacking statute.
4. Insufficient evidence that the robbery affected interstate commerce to warrant federal prosecution under the Hobbs Act.
5. His prior conviction for conveying a weapon in a federal prison not qualifying as a "violent felony" under the Armed Career Criminal Act.
6. The same prior conviction not being classified as a "serious violent felony" under the Three Strikes law.
7. One conviction for firearm use during a violent crime not counting as a "second or subsequent conviction."
8. The district court's failure to provide specific factual findings on his objections to the presentence report.

The Court of Appeals, exercising jurisdiction under 28 U.S.C. 1291, remands the case to the district court for factual findings regarding the presentence report objections while affirming the other issues. The underlying charges stemmed from an armed confrontation involving the Ninneman family on October 30, 1994, where Romero, identified as one of the masked assailants, participated in the attack and robbery at their home.

A masked assailant searched a residence for money and a safe while accomplice Romero held Mr. Ninneman at gunpoint, threatening him with death if he resisted. Romero physically assaulted Mr. Ninneman and coerced him into revealing the location of a safe at his restaurant, Michael's Kitchen, while requesting that his handicapped daughter be brought inside first. Once at the restaurant, which was closed but had employees present, Romero and the other masked man ordered the employees to the ground. The darker masked man forced Mr. Ninneman to open the safe, stealing over $10,000 in cash and checks before fleeing.

The Taos Police Department was alerted to the armed robbery in progress. Officer Medina and his team responded, and upon seeing Romero, ordered him to drop his weapon. Romero fired at the officer, who returned fire, injuring Romero. Romero fled toward the Ninneman's Chevy Suburban, subsequently abandoned. Later, Officer Medina discovered Romero in a cemetery, wounded, while a .357 Magnum revolver was found at the scene of the shooting.

Romero was indicted on seven counts, including conspiracy to commit carjacking and robbery, carjacking, using a firearm during these offenses, and being a felon in possession of a firearm. He was convicted on all counts.

On March 13, 1996, the district court sentenced Romero to three concurrent life sentences for Counts I, II, and IV under the "Three Strikes" law (18 U.S.C. 3559(c)(1)(F)). Additional sentences included 120 months for Count VI, 327 months for Count VII, 60 months for Count III, and 240 months for Count V, resulting in a total sentence of life imprisonment plus twenty-five years. 

Romero challenges the sufficiency of evidence for his carjacking conviction, arguing that the government failed to prove he had the intent to cause death or serious bodily harm, as required by the statute. He asserts that a jury must find intent beyond a reasonable doubt, irrespective of whether the victim consented to the car's relinquishment. The government counters that the statute's intent requirement is met if it can demonstrate that Romero intended to inflict harm if the victim refused to comply, asserting that conditional intent is sufficient.

The court reviews the district court’s interpretation of the statute de novo, starting with its plain language. At the time of the incident, the federal carjacking statute mandated that a conviction requires proof of intent to cause death or serious bodily harm. Conditional intent is recognized as valid intent, as established in prior case law and legal principles. The Third Circuit has ruled that achieving the goal of obtaining a vehicle without actual harm does not negate the underlying intent to inflict such harm.

The statute aims to prevent harm related to car theft, including threats or actual serious bodily harm. The victim's decision to surrender their vehicle to avoid injury does not negate the harm the statute seeks to prevent, nor does it alter the defendant's intent to inflict serious harm to obtain the car. Section 2119 requires both an intent to cause death or serious bodily harm and the act of taking a vehicle by force or intimidation. Federal courts have interpreted the intent requirement to mean more than just a threat; it necessitates actual intent to inflict serious harm. A threat can fulfill the intimidation aspect, but cannot alone satisfy the intent requirement. The interpretation that the taking and intent are separate distinct elements is disputed, as the statute's language suggests the taking by force or intimidation is the actus reus, while the intent to cause harm is the mens rea. It is argued that Congress did not intend the presence of death or serious injury to be necessary for all carjacking convictions, given the existence of enhanced penalties for cases resulting in such harm. Critique of this view suggests it would limit the statute's effectiveness, as it would only apply to carjackers intending additional crimes. Thus, a defendant’s conditional intent to cause serious harm meets the specific intent requirement of the statute. Additionally, a challenge under the Commerce Clause asserts that Congress exceeded its authority in enacting the federal carjacking statute, referencing United States v. Lopez.

In United States v. Overstreet, the Tenth Circuit upheld the federal carjacking statute against a Commerce Clause challenge, reaffirming its decision in a subsequent case, United States v. Carolina. The court rejected Romero's constitutional challenge to the statute, citing no changes in Supreme Court jurisprudence that would affect their previous rulings.

Romero also contested the sufficiency of evidence supporting federal jurisdiction under the Hobbs Act, arguing that the government failed to demonstrate that the robbery of Michael's Kitchen significantly impacted interstate commerce. He referenced United States v. Lopez, asserting that the government must prove the robbery's potential for repetition and substantial effect on commerce. Romero claimed that since the robbery did not affect Michael's Kitchen's business volume or its supply orders from out-of-state, his Hobbs Act convictions were unwarranted.

The Hobbs Act criminalizes actions that obstruct or affect commerce through robbery or extortion, with a broad definition of "commerce." The Tenth Circuit has held that a minimal effect on interstate commerce suffices to establish jurisdiction. Specifically, the government can demonstrate this through evidence of asset depletion of a business engaged in interstate commerce, which impacts its ability to purchase goods.

In this case, the government proved that Romero and his accomplice stole over $10,000 from Michael's Kitchen, leading the restaurant's owner to borrow $11,000 to reopen. Additionally, the restaurant was delayed in payments to suppliers who sourced goods from various states. Given that Michael's Kitchen served 1400-1600 customers daily, many from out of state, the court concluded that sufficient evidence existed to show that the robbery obstructed, delayed, or affected interstate commerce.

The Armed Career Criminal Act (ACCA) enhances prison sentences for defendants convicted of being felons in possession of firearms who have three prior violent felony or serious drug offense convictions from different occasions. In Romero's case, the district court identified three prior violent felonies: a conviction for second-degree murder in 1974, a conviction for forcibly assaulting a law enforcement officer in 1975, and a guilty plea for conveying a weapon in federal prison in 1981. The court sentenced Romero as an armed career offender under the ACCA.

Romero appealed, arguing that his 1981 conviction for conveying a weapon does not qualify as a "violent felony" under section 924(e). Sentencing enhancements under this section are reviewed de novo, with the government bearing the burden of proof by a preponderance of evidence. The ACCA defines a violent felony as any crime punishable by over one year of imprisonment that involves the use or threatened use of physical force or presents a serious potential risk of physical injury.

To determine if Romero's conveying conviction is a violent felony, a formal categorical approach is used, focusing solely on statutory definitions rather than the specifics of the case. The relevant statute from 1981 criminalized the conveyance of weapons within a federal institution, punishable by up to ten years in prison. The court concluded that this offense inherently presents a serious potential risk of injury, noting that the ACCA only requires a potential risk and not proof of actual injury.

Possession of a deadly weapon by a prison inmate poses a significant threat to safety, lacking any legitimate recreational purpose that may exist outside prison settings. The Ninth Circuit's ruling supports the view that such possession presents a serious risk of physical injury to others. Consequently, the district court deemed Romero's 1981 conviction for conveying a weapon as a "violent felony" under the Armed Career Criminal Act (ACCA). 

The Violent Crime Control and Law Enforcement Act of 1994 established the "Three Strikes" law, mandating life imprisonment for defendants convicted of a "serious violent felony" with two or more prior convictions. A "serious violent felony" includes offenses punishable by a maximum of ten years or more, involving the use or threat of physical force. However, a crime may be classified as a "nonqualifying felony" if it can be shown that no dangerous weapon was used and no serious injury resulted.

The district court identified two of Romero's prior convictions—second degree murder and the 1981 conveying offense—as "serious violent felonies," leading to concurrent life sentences for his current convictions. On appeal, Romero contends that his 1981 conviction does not meet the ten-year maximum penalty criterion, arguing the limit should reflect the 1994 context when the Three Strikes law was enacted, during which the maximum penalty for related offenses was reduced to five years.

Determining whether a felony meets the ten-year maximum penalty requirement under section 3559(c) relies on the penalty at the time of conviction rather than the date the Three Strikes Law was enacted. The statute defines a "strike" based on convictions for serious violent felonies occurring on separate occasions. Romero argues that his 1981 conveying conviction does not qualify as a serious violent felony, asserting that the statutory elements do not entail a substantial risk of physical force, thus warranting a categorical approach. The government counters that the inquiry should assess whether, by its nature, the offense involves a substantial risk of physical force, contending that Romero's conviction meets this criterion. Furthermore, the government maintains that Romero failed to demonstrate in the district court that his conviction was a nonqualifying offense under section 3559(c)(3), which is essential for his appeal. To evaluate if a conviction qualifies as a serious violent felony, a two-step process is necessary: first, examining if the offense involves the use or threatened use of physical force or entails a substantial risk of such use; if either condition is satisfied, the burden shifts to the defendant to prove, by clear and convincing evidence, that the conviction is nonqualifying. This requires showing that no dangerous weapons were used or threatened and that the offense did not result in serious injury or death.

Romero's 1981 conveying conviction is classified as a serious violent felony under section 3559(c) due to the substantial risk of physical force involved in the crime, despite the lack of an explicit force element. The court found that the only rationale for a prisoner to possess a weapon designed to harm others is to use it offensively or defensively, thus confirming the risk associated with such possession. Romero failed to prove that his conviction was a nonqualifying offense under section 3559(c)(3), as the evidence presented at the sentencing hearing did not support his claim. Consequently, his conviction warrants a mandatory life sentence.

Regarding the imposition of a consecutive twenty-year sentence for Count V (using or carrying a firearm during a crime of violence) under 18 U.S.C. 924(c)(1), Romero contended that this should not be classified as a "second or subsequent conviction" since it arose from the same criminal episode as Count III. However, referencing United States v. Parra, the court upheld the consecutive sentence, establishing that the context of the convictions does not negate the classification of Count V as a second offense under section 924(c)(1).

Romero contends that the district court failed to make specific factual findings regarding his objections to the presentence report (PSR). After his conviction, an initial PSR was prepared by the probation office, which Romero subsequently objected to in a filing dated November 28, 1995. The probation office issued a revised PSR that addressed some of Romero's objections but retained others. During the sentencing hearing, Romero reiterated his objections, including claims that he did not intentionally shoot Officer Medina, that he deserved a downward departure for acceptance of responsibility, and that the PSR improperly referenced prior charges and misconduct.

The district court adopted the PSR's findings without conducting an evidentiary hearing or addressing the unresolved objections, stating there were no disputed facts. Under Federal Rule of Criminal Procedure 32(c)(1), the court must allow counsel to comment on the PSR and resolve any objections, making necessary findings or declarations regarding contested matters. Previous rulings establish that merely adopting the PSR does not fulfill this obligation. The record indicates that the district court did not comply with these requirements.

Consequently, the case is remanded to the district court to either make the required findings and attach them to the PSR or declare that the contested matters were not considered in sentencing. In all other respects, the court affirms the previous decision. Additionally, the court resolves Romero's other appeal issues related to sufficiency of evidence and jury instructions, concluding that the evidence was adequate to establish Romero's intent to cause death or serious harm. Other circuit courts have similarly upheld the federal carjacking statute against Commerce Clause challenges.