CA1: at sentencing, pro se brief picks up obvious error

US v. Garcia-Ortiz, No. 06-1923. Wow.  “José A. García-Ortiz ("García") was convicted of intentionally obstructing and delaying commerce by robbery, armed robbery, and first degree murder under 18 U.S.C. §§ 2, 1951(b) (Hobbs Act), 924(c)(1), and 924(j).”  See also  18 U.S.C. § 1111(a)

The First reverses on the sentencing.  Let’s do that first.  It holds that “alleged co-felon can be ‘a victim’ for the purposes of the Guidelines.”  2B3.1(c)(1).  What is most surprising, is that the only relief he gets comes because of a supplemental pro se brief filed by the defendant.  The First decides that there is a miscarriage of justice because 18 U.S.C. § 1951 has a statutory maximum of 20 years, and the District Court gave him life under U.S.S.G. § 3D1.2(c).  Okay, how did the government, the District Court, AND counsel miss that one?

The government concedes that an FBI agent should not have been allowed to testify that an FBI agent that wasn’t familiar with the defendant should not have been allowed to ID him to the jury (first he guessed wrong, and second he was told who to pick).  For some reason the First goes into an “expert” analysis here.  But, the First says that although the government was sloppy, this shouldn’t cause a new trial, and gives a string-cite as to why this is okay.  Does this give a green light to the government to do this in the future?  Perhaps.

On plain error review, the court says that there was nothing wrong with a jury instruction regarding the definition of “robbery” in the convictions.  The First says that as a legal matter, “robbery” refers to robberies in interstate commerce.  I am not going to stress this too much.

The First also says that 18 U.S.C. § 1111(a) “does not require that the defendant himself pull the trigger.” 

This case contains an interesting tidbit: A supermarket had $63,000 in cash sales for one day.  This probably explains why they are so eager to give you cash back if you use a debit card.