United States v. Garcia-Ortiz, No. 09-2325 (1st Cir. 2011)Annotate this Case
In 2000 defendant and others robbed a warehouse. In an ensuing gunfight, one robber was killed and defendant was wounded. Defendant was convicted of Hobbs Act robbery, 18 U.S.C. 1951(a); aiding and abetting unlawful carrying and use of a firearm during and in relation to the robbery, 18 U.S.C. 924(c)(1)(A); and aiding and abetting the death of an accomplice in commission of an armed robbery, 18 U.S.C. 924(j). The First Circuit vacated the sentence. On remand, the district court rejected defendant's lesser included offense argument, request for a mitigating role adjustment, and request for a reduced sentence based on post-offense rehabilitation, but granted reduction of the base offense level (from 43 to 38), noting the lack of evidence that defendant intended to kill his accomplice. It imposed a 240-month sentence on count 3, a concurrent 50-month sentence on count 1, and a consecutive five-year sentence on count 2, stating that it had evaluated the factors in 18 U.S.C. 3553(a). The First Circuit affirmed convictions on counts 1 and 3, but vacated on count 2 and remanded. Conviction under section 924(j) necessarily includes a finding that the defendant violated section 924(c) and there was no evidence that Congress intended cumulative punishments.