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United States v. Melgar-Cabrera

United States Court of Appeals, Tenth Circuit

June 8, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:09-CR-2962-WJ-3)

          Scott M. Davidson, The Appellate Law Office of Scott M. Davidson, Ph.D., Esq., Albuquerque, New Mexico, for Defendant-Appellant.

          C. Paige Messec, Assistant United States Attorney (Damon P. Martinez, United States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

          Before BRISCOE, SEYMOUR, and McHUGH, Circuit Judges.

          SEYMOUR, Circuit Judge.

         This case arises out of two restaurant robberies in 2009 during one of which Francisco Melgar-Cabrera's cohorts shot and killed a waitress. Mr. Melgar-Cabrera was charged with numerous crimes but was not immediately tried because he fled to El Salvador. He was extradited in 2013 and subsequently convicted and sentenced to life imprisonment pursuant to 18 U.S.C. § 924(j)[1] for causing the death of a person while using a gun to commit a § 924(c) crime of violence. He appeals, contending that Hobbs Act robbery, the underlying crime for which he was charged, is not categorically a crime of violence. Before addressing the Hobbs Act issue, however, we consider an additional matter that neither Mr. Melgar-Cabrera nor the government raised: the fact that in this circuit, § 924(j) has been held to constitute a sentencing enhancement, not a separate crime. United States v. Battle, 289 F.3d 661, 666 (10th Cir. 2002) (disagreeing with defendant's "contention that § 924(j) sets forth 'an aggravated crime different from § 924(c), '" and instead holding "[s]ection 924(j) describes the sentencing factors that must be proved in order to impose a consecutive sentence of death, life imprisonment or a term of years" for someone who causes death while using a firearm to commit a crime of violence). We do so because the El Salvador Supreme Court granted extradition of Mr. Melgar-Cabrera only after holding that he could not be charged with or convicted of a § 924(c) crime. The government subsequently re-indicted Mr. Melgar-Cabrera and charged him with violating § 924(j), and he was convicted of that "crime" rather than a § 924(c) offense. We ordered supplemental briefing on the § 924(j) issue. We affirm.


         On June 13, 2009, Mr. Melgar-Cabrera and two cohorts robbed a Lone Star Steakhouse at gunpoint. On June 20, the same three men robbed a Denny's restaurant at gunpoint. During the course of this second robbery, one of the men shot and killed Stephanie Anderson, a waitress at the restaurant. On April 4, 2010, the government indicted Mr. Melgar-Cabrera and his co-defendants. The charges against Mr. Melgar-Cabrera stemming from the Lone Star robbery included a count for conspiracy to commit and committing Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), and a charge for using a gun in relation to that crime of violence in violation of § 924(c). The charges against him stemming from the Denny's robbery also included counts for conspiracy to commit and committing Hobbs Act robbery and for using a gun in relation to that crime. In addition, the government charged Mr. Melgar-Cabrera under § 924(j) for causing the death of Stephanie Anderson while using a gun to commit a crime of violence.

         After the robberies, Mr. Melgar-Cabrera fled to El Salvador. The United States requested his extradition on October 2, 2013 for all of the counts listed above. The Supreme Court of Justice of the Republic of El Salvador denied extradition as to both conspiracy counts and both counts involving § 924(c) because it concluded that neither crime was "included in the list of crimes of the Bilateral Extradition Treaty." ROA vol. 1 at 328. Accordingly, the court granted extradition for only two offenses: "committing aggravated murder while using and carrying a firearm during and in relation to a crime of violence and aiding and abetting . . . [and] interfer[ing] with interstate commerce by robbery and violence and aiding and abetting." Id. at 342.

         Once back in the United States, Mr. Melgar-Cabrera filed a motion to dismiss all counts on which the Salvadoran Supreme Court did not grant extradition. The government agreed and filed its own motion to dismiss. The government explained:

2. Pursuant to the Treaty, the Government of the United States has obligations governed by the Rule of Specialty, as set forth in Article IV of the Treaty, to the effect that a defendant shall not be tried or punished for any crime or offense other than those for which extradition is granted.
3. The Salvadoran Supreme Court extradited Defendant on the offenses charged in Count 4 and Counts 3 and 13 of the Second Superseding Indictment which charge Committing Felony Murder While in Violation of 18 U.S.C. §§ 924(j), 1111, and 2; and Interference with Interstate Commerce by Robbery and Violence and Aiding and Abetting in violation of 18 U.S.C. §§ 1951(a) and 2 respectively.

Id. at 532-533. The only charges remaining, the government asserted, were two counts of Hobbs Act robbery (one stemming from each robbery) in violation of § 1951(a), and one count "which charges Defendant with Committing Felony Murder While in Violation of 18 U.S.C. §§ 924(j)(1), 1111 and 2." Id. at 534. The district court granted the government's motion to dismiss.

         Before trial, Mr. Melgar-Cabrera moved to dismiss the felony murder charge, arguing that Hobbs Act robbery could not serve as a predicate "crime of violence" under § 924(c), which is necessary for a violation of § 924(j). The district court denied his motion and Mr. Melgar-Cabrera was convicted on all three counts. On December 1, 2015, the district court sentenced him to life imprisonment on the § 924(j) felony murder count and twenty years for each Hobbs Act robbery count, to run concurrently. He appeals.


         Before we turn to the merits of Mr. Melgar-Cabrera's appeal, we address whether § 924(j) is a separate crime in order to clarify the law in this circuit and to avoid confusion in future cases. We begin with 18 U.S.C. § 924(c)(1), which sets forth a discrete crime for using or carrying a firearm in furtherance of a crime of violence or drug trafficking crime. See Abbott v. United States, 562 U.S. 8, 12 (2010).

         Confusingly, Congress placed this "discrete crime" in 18 U.S.C. § 924, a statutory section labeled "Penalties." See Gun Control Act of 1968, Pub. L. No. 90-618, § 101, 82 Stat. 1213. In United States v. Sudduth, 330 F.Supp. 285, 289 (D. Colo. 1971), one of the earliest cases discussing § 924(c), the district court noticed this oddity and held that § 924(c) did not create a discrete crime, stating that "[w]hen Congress devoted several pages to phrasing Sec. 922 which creates the unlawful acts, it is difficult to accept an argument that Congress impliedly intended to create an offense under the section of the Act headed 'Penalties.'" We reversed that conclusion in United States v. Sudduth, 457 F.2d 1198, 1201 (10th Cir. 1972), stating that "[a]n examination of the events surrounding the enactment of section 924(c) and an evaluation of its wording leads us to the conclusion that it was intended to create a separate crime. It is obvious, however, that the matter is by no means free of doubt . . . ." In its first case interpreting § 924(c), the Supreme Court approvingly cited our Sudduth opinion and declared that § 924(c) "creates an offense distinct from the underlying federal felony, " before holding that a defendant could not be punished under both § 924(c)(1) and the enhanced punishment provision for bank robbery under § 2113(d). Simpson v. United States, 435 U.S. 6, 10-13 (1978), superseded by statute, Comprehensive Crime Control Act of 1984, Pub L. 98-473, § 1005(a), 98 Stat. 2138-39, as recognized in United States v. Gonzales, 520 U.S. 1, 10 (1997). The Court thus ended any debate as to whether Congress intended § 924(c) to be a discrete crime or a sentencing enhancement.

         But another provision under the "Penalties" subheading is § 924(j), which is at the center of this case. It provides that "[a] person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall . . . if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment for any term of years or for life . . . ." 18 U.S.C. § 924(j). Notably, we held in Battle, 289 F.3d at 666, that § 924(j) is not a discrete crime but is instead a sentencing enhancement. One other circuit has agreed with this conclusion. See United States v. Allen, 247 F.3d 741, 769 (8th Cir. 2002) ("§ 924(j) is fairly interpreted as an additional aggravating punishment for the scheme already set out in § 924(c)"), vacated on other grounds, 536 U.S. 953 (2002). Other circuits, however, have held or strongly insinuated that § 924(j) is a discrete crime. See United States v. Berrios, 676 F.3d 118, 142 n.17 (3d Cir. 2012) (stating evidence "strongly suggest[s] that Congress intended" § 924(j) to be considered discrete crime but determination of issue not necessary to outcome of case); see also United States v. Julian, 633 F.3d 1250, 1253 (11th Cir. 2011) ("The facts that the government must prove for a criminal to receive a sentence-including a potential sentence of death-under section § 924(j) comprise elements, not sentencing factors."); United States v. Young, 561 F. App'x. 85, 94 (2d Cir. 2014) (unpublished) (observing that § 924(j) "likely indicates that it is a stand-alone offense").

         Although Mr. Melgar-Cabrera was charged with and convicted of violating § 924(j), he never made an objection, either at trial or on appeal, concerning § 924(j)'s status under Battle as a sentencing factor rather than a discrete crime. "While this ordinarily constitutes a waiver of the issue . . . our case law unquestionably recognizes our inherent power to raise an issue sua sponte as plain error under circumstances strongly implying a fundamental defect or error of sufficient magnitude to undermine our confidence that justice was served." United States v. Santistevan, 39 F.3d 250, 256 (10th Cir. 1994); see also Fed. R. Crim. P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."). A defendant being convicted of a crime that is not a crime certainly qualifies as "circumstances strongly implying a fundamental defect." Santistevan, 39 F.3d at 256. Thus, we exercise our discretion to review for plain error. Plain error occurs "when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015), abrogated on other grounds by Beckles v. United States, 137 S.Ct. 886 (2017). The government has convinced us there was no error here.

         Battle rested on a shaky foundation from the beginning. There, Mr. Battle was charged with one count of Hobbs Act robbery and one count of causing the death of a person with a firearm during the commission of the robbery, in violation of § 924(c) and § 924(j). Battle, 289 F.3d at 663. The court sentenced Mr. Battle to 240 months imprisonment for the Hobbs Act violation and life imprisonment for the violation of § 924(c) and (j), to be served consecutively. Id. A district court generally has discretion to impose consecutive sentences, see 18 U.S.C. § 3584, but normally it must state its reasons for doing so, see United States v. Rose, 185 F.3d 1108, 1112-13 (10th Cir. 1999). In Battle, however, the district court had not done so. We noted that we were not compelled to overturn the district court's decision because § 924(c)(1)(D)(ii) specifically forbids the imposition of concurrent sentences for § 924(c) violations and the underlying crime of violence. Battle, 289 F.3d at 665. Although Mr. Battle argued that the district court had erred when it imposed consecutive sentences without stating its reasons for doing so because § 924(j) is a discrete crime from § 924(c), we rejected his argument by concluding that § 924(j) was only a sentencing enhancement. Id. at 666. We held accordingly that "§ 924(c) unambiguously mandates the imposition of a consecutive sentence 'in addition to' the punishment ordered for the use of a firearm during the commission of a crime of violence where the evidence demonstrates the existence of the aggravating sentencing factors set forth in § 924(j)." Id. at 669.

         But as the government pointed out in its supplemental brief, Aple. Supp. Br. at 1, 10, Battle never discussed, or even cited, the recently decided landmark Supreme Court decision of Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Court held that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 491. Thereafter, in Ring v. Arizona, 536 U.S. 584 (2002), the Court addressed Arizona's sentencing scheme, which allowed a judge to increase a defendant's maximum punishment from life imprisonment to a death sentence by finding an aggravating factor beyond a reasonable doubt. Id. at 598. An earlier Supreme Court case had held Arizona's sentencing scheme constitutional after concluding that the additional facts found by the judge qualified as sentencing considerations and not "element[s] of the offense of capital murder." Walton v. Arizona, 497 U.S. 639, 649 (1990). Ring held Walton to be irreconcilable with Apprendi and "overrule[d] Walton to the extent that it allow[ed] a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for ...

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