USCA1 Opinion

November 3, 1995

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 95-1094

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS RAUL RIVERA-GOMEZ,

Defendant, Appellant.

_________________________

ERRATA SHEET
ERRATA SHEET

The opinion of

this court

issued on October

12, 1995,

is

corrected as follows:

On

page

excluded"

7, line

20,

change "is

only

admissible" to

"may be

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 95-1094

UNITED STATES OF AMERICA,

Appellee,

v.

LUIS RAUL RIVERA-GOMEZ,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

___________________

_________________________

Before

Selya and Stahl, Circuit Judges,

______________

and Gorton,* District Judge.

______________

_________________________

Carlos
A.
Vazquez-Alvarez,
_____________________________
Defender,

with

whom

Assistant

Federal

Benicio Sanchez Rivera,

________________________

Federal

Public

Public

Defender, was on brief, for appellant.

Jose A. Quiles-Espinosa,
________________________

Senior Litigation

Counsel, with

whom Guillermo Gil, United States Attorney, and Edwin O. Vazquez,

_____________
________________
Assistant United States Attorney,

were on brief, for

the United

States.

_________________________

October 12, 1995

_________________________

_______________
*Of the District of Massachusetts, sitting by designation.

SELYA,
SELYA,

appellant Luis

18 U.S.C.

Circuit Judge.
Circuit Judge.
_____________

defendant-

counts of carjacking,

2119, and three counts of aiding and abetting the use

of firearms during

violence, 18

U.S.C.

trial

jury convicted

Raul Rivera-Gomez on three

and carriage

the

judge

and in relation

2(a), 924(c).

imposed

concurrent

to a crime

of

In terms of

prison time,

180-month

incarcerative

sentences for the first two carjacking counts, a sentence of life

imprisonment for

of five years, to

the

firearms

ruling, a

the third carjacking, and

concurrent sentences

run consecutively to the other

counts.

This

case management

appeal

sentences, for

challenges an

ruling, and the

evidentiary

constitutionality of

the life sentence.

I. BACKGROUND
I. BACKGROUND

The evidence adduced at

carjacking

incidents.

warrantably

conflicts in

could have

trial involved three

We

sketch

found

them,

the

facts

as

resolving all

the government's favor and

separate

the

jury

evidentiary

adopting all reasonable

inferences therefrom that support the verdict.

The first carjacking occurred on December 3, 1993.

victim, Cesar Correa

Rivera (Correa), had driven

The

a friend home.

While they

were

Correa's car.

Correa

parked

tried to flee.

later identified

Correa on

her abode,

vehicle

nudged

Not knowing the vehicle or trusting its occupants,

blocked Correa's path

men,

outside

After a

and two

brief chase, the

armed men alighted.

as Jose

the head twice

rogue vehicle

Roman Hernandez

with his revolver

One of

the

(Roman), struck

and ordered him

to

relinquish

his

valuables.

Meanwhile,

identified as Rivera-Gomez, threatened

gun.

the

second man,

later

Correa's companion with a

Appellant eventually ordered the victims to kneel and stare

at the ground.

Roman then departed in the

carjackers' original

vehicle, leaving appellant to drive Correa's automobile.

Four days

later, the

elderly retired couple, Rufino

wife, Clara.

car

to

The

same two marauders

Garcia Maldonado (Garcia) and his

assault occurred when Clara left

open the

gate

threatened her with

assaulted an

leading into

their

the couple's

driveway.

One man

a weapon and forced her to the ground, while

the second man pointed a gun at Garcia's head, ordered him out of

the car

(a red

Suzuki), and

robber then struck

Garcia on

drove off in the Suzuki.

relieved him of

the head, and

his wallet.

he and his

The

comrade

A short time later, the Garcias' Suzuki, with appellant

at

the wheel, pulled alongside a Mazda RX-7 operated by Reynaldo

Luciano Rivera (Luciano).

pointed a gun

submitting

to

accelerator.

Garcia

the

shot

Roman, then a passenger in the Suzuki,

at Luciano and ordered him to

this

At

minatory

the same

demand, Luciano

time, his

(Hidalgo), leapt to the

direction of the escaping

Luciano

in

the

realizing that they had

freeze.

ground.

stepped

companion, Dalia

The

car, and, when

head at

Instead of

point-blank

on

the

Hidalgo

predators fired in

it stopped, Roman

range.

Apparently

killed the young man, Roman

and Rivera-

Gomez fled the scene without expropriating the Mazda.

Soon

thereafter, a

homicide

detective spotted

a red

Suzuki

in

the vicinity

latest incident, circled

chase

involving

and, having

to pursue it.

several police

received

a report

of the

After a Hollywood-style

vehicles,

the

Suzuki crashed.

Appellant exited through the driver's door, and Roman exited from

the passenger's side.

two

men

The authorities quickly apprehended them.

On January

5, 1994, a

with three

counts of

federal grand jury

carjacking

and three

charged the

counts of

aiding and abetting each other in

in relation to

the use of firearms during and

crimes of violence.

featured an allegation concerning

Count 3

of the

Luciano's death.

entered a plea, appellant maintained

indictment

Though Roman

his innocence.

Following a

three-day trial, a jury found appellant guilty on all six counts.

This appeal ensued.

II.
II.

DISCUSSION
DISCUSSION

Appellant advances three assignments

he maintains that the district court

of Luciano's death.

declared

jury's

suggests

a mistrial

presence

of error.

First,

erred in admitting evidence

Second, he argues that the court should have

when a

that Roman

prosecution witness

had

pleaded guilty.

stated in

the

Finally, he

that his life sentence punishes him for an offense with

which

he

was

never

transgresses the

charged

(Luciano's

Constitution.

We address

murder),

and,

thus,

these reputed errors

sequentially.

A.
A.

Admission of Evidence of Victim's Death.

Admission of Evidence of Victim's Death.
_______________________________________

Appellant,

who

unsuccessfully

moved

in
__

limine
______

to

forestall the prosecution from showing that Luciano was killed in

the course

of the third incident, asseverates

death was irrelevant to

attempted carjacking,

the question of guilt

and that no evidence

should have been admitted.

with

the language of

that the victim's

on the charge

concerning the death

Our study of this asseveration begins

the carjacking statute,

which provided on

the date of appellant's offense:

Whoever,
takes

interstate
person or
violence

possessing a

motor

transported,

firearm

vehicle

that

shipped,
or

foreign

presence of

or

has

been

received

commerce

in

from

another by

or by intimidation,

the

force and

or attempts to

do so, shall (1)

be fined

under this

title or

imprisoned not more than 15 years, or both,

(2) if serious bodily
results,

be

imprisoned not

fined

under

injury . . .

this

more than 25 years,

title

or

or both,

and
(3)

of

if

death

results,

be

fined

under this title or imprisoned for any number

of years up to life, or both.

18 U.S.C.

2119 (Supp. V 1993).

Appellant

thought that

asserts that

the victim's

the district

death constituted

court mistakenly

an element of

offense, and allowed the evidence on that basis.

he

maintains,

provision,

simply a

because

is not

subsection

an element

(3),

of the

the

This was error,

"death

offense, but,

sentencing enhancement mechanism.

the

results"

rather, is

Thus, he concludes,

the victim's death had no bearing upon the determination of guilt

for the underlying offense,

and should not have been

brought to

the jury's attention.

As

assertion

an

that

inauguratory

the

district

matter,

we

court held

disavow

the

appellant's

"death

results"

provision

to be a separate element of the offense of carjacking.

As we parse the

was

version of the statute under

convicted, the crime of carjacking

which Rivera-Gomez

had four elements, viz.,

____

(1) taking (or attempting to take) from the person or presence of

another,

(2) by force,

vehicle

previously

violence, or

transported,

intimidation, (3)

shipped,

or

a motor

received

in

interstate or foreign

firearm.1

Cir.),

commerce, (4)

See United States v.

___ ______________

cert. denied,
_____ ______

Harris, 25 F.3d
______

115 S.

while using

Johnson, 32
_______

Ct. 650

1275, 1279 (5th Cir.)

458 (1994); United States

_____________

or carrying

F.3d 82,

85 (4th

(1994); United States v.

______________

cert. denied, 115

_____ ______

v. Singleton, 16 F.3d 1419,

_________

S. Ct.

1422 (5th

Cir. 1994).

The

structure,

consider

element

district

and

the

the death

court appears

record

of a

suggests

victim to

of the carjacking offense.

pretrial hearing

victim was

on the motion

to

that

be a

have understood

the court

not

further (independent)

Judge Laffitte stated at the

in limine that the

__ ______

an offense element "not

did

this

as such," but

death of the

only as "part

and parcel" of the "force and violence" element of the carjacking

charge.

In the same vein, the judge's jury instructions outlined

____________________

1Section 2119 has

since been

bill, Congress substituted

death

or

possession

serious
of

bodily

a firearm.

Enforcement Act of 1994,

Stat. 1796, 1970.
elements,

but

amended.

In

the phrase "with the

harm"
See
___

for

the

Violent

the 1994

crime

intent to cause

language

Crime Control

requiring

and Law

60003(a)(14), Pub. L. No. 103-322, 108

Thus, the new law leaves the offense with four

changes

the focus

weaponry to intention, requiring

the defendant perpetrated

of

the

fourth element

from

that the prosecution prove that

the crime with the specific

causing death or serious bodily harm.

intent of

the four essential elements of carjacking described above, saying

nothing

about

"death

results"

as

an

independent

element

applicable to count 3.

In

evidence

derived

constituted an

belief

our

that

essential

view,

not

then,

from

the

court's

admission

a misapprehension

that

independent offense element, but,

evidence of

"force

and

Luciano's

violence"

death helped

element.

The

of

the

the

death

rather, from a

to

prove the

question

that

remains is whether the court blundered in allowing the government

to present the challenged evidence as a means of proving that the

carjackers employed force and violence

incident.

We think not.

in carrying out the third

It is difficult to conceive of a situation in which the

death of a victim

will not be relevant

violence during the commission

Fed. R.

v.

of an attempted carjacking.

Evid. 401 (defining "relevant

Rodriguez, 871
_________

admission

manner

to the use of force

of

F. Supp.

evidence of

and means by which

"highly

persuasive"

prosecution).

This

proves the rule.

tale.

probative

545,

case

549 (D.P.R.

death

it was accomplished"

and

See
___

evidence"); United States

_____________

"the victim's

of "force

and

violence"

is certainly

not the

1994) (approving

as well

as the

as relevant and

in a

carjacking

exception that

Nevertheless, relevancy does not tell the total

Evidence,

value is

though

relevant,

substantially

may

be excluded

outweighed by

"if

the danger

its

of

unfair

prejudice, confusion

jury."

Fed. R. Evid. 403.

of

the issues,

or misleading

the

We turn, therefore, to the balance of

probative worth and unfair prejudice.

In

this

instance,

appellant insists

that,

evidence concerning the killing was probative of guilt

force

and violence element of

the offense, it

even

if

under the

was not actually

necessary

to the prosecution's

evidence, such

as the

case

the

government had other

circumstances of the

encounter with the victim, that

carjackers' initial

would have made the point

and

the likelihood was great that grisly details would stir the baser

passions of

not make

Thus,

the jurors and cloud their

an objective

appellant's

inherent in

the

appraisal

thesis runs,

permitting the

homicide

minds so that they could

of the

the

evidence before

risk

of unfair

prosection to introduce

substantially

outweighed

whatever

them.

prejudice

evidence of

incremental

probative value the evidence may have supplied.

We

excluding

review

particular

United States v.
_____________

trial

court's

evidence for

Holmquist, 36
_________

abuse

rulings

of

F.3d 154, 163

admitting

discretion.

(1st Cir.

or

See
___

1994),

cert. denied, 115

_____ ______

Partnership
___________

1991);

S. Ct.

1797 (1995); Veranda Beach Club Ltd.

_________________________

v. Western Surety Co., 936 F.2d 1364, 1373 (1st Cir.

__________________

United States v. Nazarro,

_____________
_______

1989).

We grant the

889 F.2d 1158,

trial court especially

Rule 403 balancing is the subject of review.

in extraordinarily

vista

compelling circumstances

1168 (1st Cir.

wide latitude when

"Only

will

rarely

and

we, from the

of a cold appellate record, reverse a district court's on-

the-spot

judgment concerning the

value and unfair effect."

relative weighing of probative

Freeman v. Package Mach. Co., 865 F.2d

_______
_________________

1331,

1340 (1st Cir.

criminal cases.

1988).

This

deference is equally

due in

See, e.g., United States v. Rodriguez-Estrada,

___ ____ ______________
_________________

877 F.2d 153, 156 (1st Cir. 1989); United States v. Ingraham, 832
_____________
________

F.2d 229, 233-34

(1st Cir.

(1988); United States v.

_____________

1987), cert. denied,

_____ ______

486 U.S.

Tierney, 760 F.2d 382, 388

_______

1009

(1st Cir.),

cert. denied, 474 U.S. 843 (1985).

_____ ______

Through this

in the

evidence

district

modest lens, we see

court's Rule

was available,

403

evidence

no cognizable defect

balancing.

of

Whatever

Luciano's death

other

remained

highly

probative of

section 2119 offense.

the

culpability for an

Presumably,

essential element

of a

like most evidence offered by

government in a criminal case, this evidence was designed to

prejudice the

exposure

jury

to it would

against

the defendant

in

render a conviction more

the

sense

likely.

that

But the

introduction of relevant evidence to influence perceptions is the

stuff of

our adversary system

defendant against unfair

______

See
___

prejudice, not

Rodriguez-Estrada, 877
_________________

States, 817
______

of justice.

F.2d 3, 6 (1st

F.2d at

The law

protects a

against all
___

prejudice.

155-56; Onujiogu
________

Cir. 1987); see also

___ ____

v. United
______

Veranda Beach,
_____________

936 F.2d at 1372 (explaining that "trials were never meant

antiseptic affairs;

it is

only unfair prejudice,

to be

not prejudice

per se, against which

Rule 403 guards").

Since the

evidence at

issue is so tightly linked to guilt as defined by the elements of

the offense,

it would

be surpassingly

difficult

to justify

finding of unfair prejudice stemming from its introduction.

Here, moreover, there are several additional weights on

10

the

scale favoring

admissibility.

For

one thing,

because the

perpetrators fled immediately after

the shooting, leaving behind

both

in

the

Mazda

and

government's case on

a dying

count 3

attempted carjacking.

man

the

driver's

depended on its

Without

seat, the

ability to

knowing of Luciano's

prove

death, the

jury may have been left to wonder why two supposed carjackers had

turned their backs on

another

an expensive, late-model sports car.

thing, Hidalgo,

understandably concerned

with her

For

own

safety at the time the incident occurred, could give only limited

testimony

as to what transpired,

that the jury,

in

if uninformed of Luciano's

speculation as

testimony at trial.

to

why the

admissible as

prosecution

a definite risk

passing, would engage

did not

See, e.g., United States v.

___ ____ _____________

F.2d 631, 637 (11th Cir.

death

and there was

to explain

the

his

Accetturo, 966
_________

1992) (holding the fact of a

"relevant

offer

witness's

fact that

[the

witness]

did

not

speculating),

testify"

cert. denied,
_____ ______

and

113 S.

United States v. Williams, 51

______________
________

(citing

to

prevent

Ct.

the

jury

1053 (1993);

F.3d 1004, 1010

from

see also
___ ____

(11th Cir. 1995)

Accetturo in admitting evidence of a victim's death in a

_________

carjacking prosecution), petition for

________ ___

cert. filed (U.S. Aug. 11,

_____ _____

1995) (No. 95-5555).

These

underscore the

considerations,

invulnerability of

taken

in

the

the district

aggregate,

court's ruling.

The evidence here did more than tend to show guilt on one element

of

the offense;

government's

it also

narrative

constituted a

account

of

11

crucial chapter

appellant's

in the

carjackings,

allowing

the

jury

to

put

evidence is supposed to help

and

then

require.

impede

apportion

Rule

it.

artificially

403 exists

We think

environment for

guilt

matters

perspective.

Trial

the jury reconstruct earlier events

or

responsibility

to facilitate

it follows

the reception of

sterile

into

environment

as

the law

this process,

that, although

neither

not to

a "controlled

proof is essential,

is

may

. .

. an

necessary

nor

desirable."

Wagenmann
_________

1987); see also

___ ____

v. Adams,
_____

829 F.2d

United States v.
_____________

196, 217

(1st Cir.

McRae, 593 F.2d 700,

_____

707 (5th

Cir.) ("Unless trials are to be conducted on scenarios, on unreal

facts tailored and sanitized for the occasion, the application of

Rule

403 must be

cautious and sparing.

limited

to excluding

force,

dragged in by

matter

of scant

the heels for the

Its major

function is

or cumulative

probative

sake of its prejudicial

effect."), cert. denied, 444 U.S. 862 (1979).

_____ ______

When

discretion at first

slowly

caution

trial

court

hand, the

in interfering

with its

is magnified when, as

in

criminal

court of appeals

judgment calls.

now, a challenged

case

exercises

should go

The

very

need for

ruling has the

effect of vindicating the government's well-established "right to

present

to the jury

a picture of

including

proof of

defendant

has been brought to trial."

21

all

the events relied upon

elements of

F.3d 1, 3-4 (1st Cir. 1994)

quotation marks omitted).

the

crime for

which

. . .

the

United States v. Tavares,

_____________
_______

(en banc) (citation and internal

Here, the

disputed evidence is

both

picture and proof; though lurid, it is part of what old-fashioned

12

lawyers might call the

of an element of

the offense.

err in admitting it.

court

res gestae, and it is

___ ______

Consequently,

directly probative

the court did

After all, it is the rare case

must require that the

story of the

not

in which a

crime be spoon-fed to

jurors in bits and pieces from which every drop of juice has been

drained.

B.
B.

During

homicide

his

detective

(appellant's

Denial of Mistrial Motion.

Denial of Mistrial Motion.
_________________________

trial

testimony,

Lama-Canino,

blurted

prosecution witness,

out

partner in crime) had entered a guilty plea.

Laffitte immediately struck the statement, instructed

to

that

Roman

Judge

the jurors

disregard it, and warned them not to ponder the codefendant's

fate.

However,

the

court

refused

to

declare

mistrial.

Appellant assigns error.

The trial

assessment

of

the impact

information may

F.2d

871, 874

(1988).

for

(1st

Cir. 1987),

For this reason,

e.g., United States

____ _____________

particular piece

of improper

See United States

___ _____________

v. Lau, 828
___

cert.
_____

we have long

committed to

1994),

U.S.

1005

recognized that motions

the presider's

discretion, see,
___

3 (1st Cir. 1991),

is predicated on some spontaneous

that can best be gauged in the ebb and flow of

trial itself, see United States v.

___ _____________

(1st Cir.

denied, 485
______

v. De Jongh, 937 F.2d 1,

________

when such a motion

trial development

the

that a

have on a jury.

mistrial are

especially

judge is best situated to make a battlefield

cert. denied,

115

Pierro, 32 F.3d 611, 617

______

S. Ct.

919 (1995).

Our

_____ ______

reluctance

to intervene is often reinforced by an awareness that

13

in most cases a firm, timely curative instruction will adequately

quell

the

Sepulveda,
_________

S.

potential

for

prejudice.

See
___

United States
______________

v.

15 F.3d 1161, 1184 (1st Cir. 1993), cert. denied, 114

_____ ______

Ct. 2714 (1994); United States v. Ferreira,

______________
________

821 F.2d 1, 5-6

(1st Cir. 1987).

Although

every

every

trial

and,

therefore,

mistrial motion is sui generis, the assignment of error in

___ _______

this case is

reminiscent of

Bello-Perez,
___________

977

defendant's

suffered

F.2d

that advanced in

664

paramour twice

a gunshot

wound

The

district

(1st

Cir.

blurted out

in an

trafficking conspiracy with

672.

is different,

event

which he

judge

gave

1992).

that the

was charged.

There,

v.

the

defendant had

unrelated to

the

See id.
___ ___

contemporaneous

instruction on each occasion, and refused to

We upheld the ruling.

United States
_____________

drug

at

curative

declare a mistrial.

See id.
___ ___

Here, as in Bello-Perez,
___________

the trial court's handling of

the witness's rash comment was well within the broad range of its

discretion.

The

analogy operates

on at

least three

levels.2

First, here, as in Bello-Perez, the offensive information, though

___________

unfit for

jury consumption,

was

not of

a kind

that might

be

____________________

2Appellant belatedly

attempts to distinguish the

on the ground that here, unlike in Bello-Perez, 977

___________
the offending

witness

deliberately

uttering

however,
judge's

appellant's
assessment

a police officer
the improper

that the

witness

F.2d at 672,

acted in bad faith by

testimony.

counsel expressed

two cases

At the

his agreement
had

made a

time,

with the

spontaneous,

accidental slip of the tongue.

That ends

the matter.

Arguments

not raised in

cannot be unfurled for

the first

time on appeal.

the lower court

See United States v. Slade, 980 F.2d 27, 30 (1st

___ _____________
_____

Cir. 1992).

14

thought irredeemably to

pleaded guilty

defense

poison the

had no bearing

mistaken identity

government's

well.

The

fact that

upon appellant's primary

and

attempt to prove that

had nothing

to do

Roman

line of

with the

Rivera-Gomez was the man who

accompanied Roman during the carjacking spree.

Second, the strength

is frequently a

mistrial motion.

cardinal factor

of the government's

in evaluating the

overall case

denial of

Here, as in Bello-Perez, the prosecution's case

___________

was extremely

robust.

There is

a correspondingly

therefore, that Lama-Canino's wayward

straw

that broke

the dromedary's

small risk,

remark could have been the

back.

See United States v.

___ ______________

Scelzo, 810 F.2d 2, 5 (1st Cir. 1987).

______

Third,

permitting

the

trial

to

proceed

is

more

palatable because, as in Bello-Perez, the judge gave an immediate

___________

curative instruction

as

device that we have regularly

a means of dispelling potential prejudice.

v. Chamorro,
________

1043 (1982).

687 F.2d 1,

6 (1st Cir.),

court fit the occasion, but we

not

then or now

See United States

___ _____________

cert. denied,
_____ ______

We not only believe that the

endorsed

459 U.S.

language used by the

also take heed that appellant did

suggest a more

felicitous phrasing.

At the

expense

of carting

judge, in

the

coal to

a commendable

note, too,

abundance of caution,

that the

again admonished

jurors in his final instructions that appellant alone was on

trial, and that Roman's

which

Newcastle, we

they

guilt or innocence was not a matter with

should concern

these instructions,

themselves.

We are

in combination, eliminated

15

confident that

any prospect

of

prejudice that

might otherwise

have flowed from

the gratuitous

aside.

As

fallback

position,

district court's instructions did

the jury of

appellant claims

that

the

more harm than good, reminding

the substance of the improper observation.

In some

respects,

of course, instructions cautioning jurors to disregard

testimony

may often

forbidden

fruit.

sometimes

only emphasize the attraction.

Schmidt,

afraid

appear

evidence

into a

form

of

Every parent knows that admonitions to refrain

Never Say No (The

____________

to

to turn

swim; the

mustn't swim; he's been

Cf. Tom Jones & Harvey

___

Fantastiks, 1960) ("My

water made

him wince.

swimmin' ever since.").

not children, and our system of trial by jury is

son was once

Until I

But

said he

jurors are

premised on the

assumption

that jurors

instructions.

will

scrupulously

follow

the

court's

See Richardson v. Marsh, 481 U.S. 200, 206 (1987);

___ __________
_____

Francis
_______

v. Franklin, 471 U.S. 307, 324 n.9 (1984); Sepulveda, 15

________
_________

F.3d at

1185.

Here,

self-interested

cure exceeded

we have no

speculation) to

those of

the

basis (apart

from appellant's

presume that

disease, and

appellant's unsupported invitation to

the evils

we therefore

of the

decline

surmise that the jury took

the wrong message from the curative instruction.

To

strength of

recapitulate, given

the

district court's

the nature

government's case,

and the

of the

taint, the

promptness of

instructions, we are unprepared to say that the

court misused its discretion in denying the mistrial motion.

United States v.
______________

the

Sclamo,
______

578 F.2d

888,

891 (1st

Cir.

See
___

1978)

16

(upholding a denial of

mistrial after witness' improper comment,

"in light of the strong case and substantial evidence produced by

the

government, and in view

of the court's

cautionary words to

the jury concerning stricken testimony").

C.
C.

Imposition of a Life Sentence.

Imposition of a Life Sentence.
_____________________________

In

sentence

his final

imposed on

foray, appellant

count 3.

Having

takes aim at

the life

argued earlier

that the

"death results" provision of the statute of conviction, 18 U.S.C.

2119

(3), is

not an

II(A), appellant now

element of the

posits that the

offense, see
___

life sentence he

punishes him for a crime

Luciano's murder

never

therefore, his

charged, and

Constitution.

that,

We agree

sentence-enhancing

offense

mentioned

with which

received

he was

sentence offends

the

We discern no constitutional infirmity.

Appellant's

foundation.

supra Part
_____

argument

is

not

entirely

with him that subsection (3)

factor, and

does

with an additional element.

not

without

demarcates a

establish a

separate

After all, not every matter

in the text of a criminal statute comprises an element

of the offense.

To be sure,

attempting to distinguish

between offense

elements and sentence enhancers can sometimes be a daunting task.

When

deciding

construed,

an

structure of

history.

Cir.

how a

particular

inquiring

the statute,

court

statutory

must

mull

allusion should

the

and, when necessary,

See United States v. Forbes, 16

___ ______________
______

1994); United States v.

______________

Ryan, 9 F.3d
____

17

language

be

and

its legislative

F.3d 1294, 1298 (1st

660, 667

(8th Cir.

1993), modified on other grounds, 41 F.3d 361 (8th Cir. 1994) (en
_________________________

banc), cert. denied,

_____ ______

Rumney, 867 F.2d 714,

______

908

115 S.

Ct. 1793 (1995);

United States
_____________

717-19 (1st Cir.), cert. denied,

_____ ______

(1989); United States v.

_____________

Jackson, 824 F.2d

_______

v.

491 U.S.

21, 23-24 (D.C.

Cir. 1987).

The structure of section 2119, the unexpurgated text of

which

is quoted supra at p. 5,3 strongly indicates that Congress

_____

intended its subsections to be sentence-enhancing factors and not

elements

The

constituting separate

initial paragraph

species of

of the statute

carjacking offenses.

establishes the

crime of

carjacking.

by

That paragraph ends

three subsections.

independent

carjacking

These

provisions

are

components.

in

redefined

Rather,

the

with the word "shall," followed

subsections are

which

and

the

essential

embellished

structure

not structurally

is

elements

with

integrated,

of

additional

and

the

statutory provisions form a seamless whole.

The first

subsection limns the base

sentence, and the

following two subsections clear the way for enhanced sentences if

either serious bodily injury or death results from the commission

of the carjacking

offense.

Ripped from

their textual moorings,

subsections (2) and (3) would be little more than gibberish; they

are

incapable

[underlying]

of

"stand[ing]

offense."

alone,

independent

Ryan, 9 F.3d at 667.

____

of

the

Consequently, this

statutory structure

comprises persuasive evidence

that Congress

____________________

3The 1994 amendment, discussed supra note 1, does not affect

_____
our analysis of these subsections.

18

intended the

second and third subsections simply

sentences for

additional

certain aggravated

offenses

carjackings, not

with independent

elements.

to augment the

to establish

Accord United
______ ______

States
______

v. Oliver, 60 F.3d 547, 552 (9th Cir. 1995); Williams, 51

______
________

F.3d at 1009.

Although this reading is the most natural and sensible,

especially given the interdependence of the provisions, we go the

extra

mile

and

venture

confirmation of Congress's

see Oliver,
___ ______

60 F.3d

retrace its

contours.

canvassed

the

at

the

intent.

553, and

we can

historical

concluded that

legislative

The path

The Eleventh

relevant

perspicaciously, and

into

for

is plainly marked,

deduce

Circuit has

materials,

the

history

no reason

to

collected and

examined

background of

them

section

2119 makes manifest that Congress intended subsection (3) to be a

sentence

enhancer,

not

a separate

offense.

See
___

id.
___

This

conclusion is unarguable, and we adopt it.

Having

concluded

that

18

U.S.C.

2119(3)

is

sentence-enhancing factor, we next consider the constitutionality

vel non of
___ ___

appellant's life sentence

sentence-enhancing

congressional

factor,

on count 3.

subsection

judgment that

(3)

the punishment

Viewed as

represents

for

committing the

crime of carjacking should be harsher if the offense, as actually

perpetrated,

victim.

includes

In

this sense,

statute bears a family

sentencing

conduct that

the

produces

architecture

the

of

demise of

the carjacking

resemblance to the design of

guidelines, which

make

19

generous use

the federal

of "sentencing

enhancement

offense

regimes

should

evincing

receive

authorized range if it

more

"this

2199, 2208

court

(1995).

Witte v.
_____

For example,

has repeatedly

conduct of acts either

serious

that

sentence

was either accompanied by or

additional criminal activity."

Ct.

the judgment

upheld

the

particular

within

the

preceded by

United States, 115

_____________

S.

under U.S.S.G.

1B1.3,

inclusion as

relevant

not charged or charged but

authorized resort to that

dropped," and

conduct as a sentence-enhancing datum.

United States v.
______________

Garcia,
______

(collecting cases).

trafficking

he

see
___

F.2d

12,

15

(1st

dangerous

U.S.S.G.

The

weapon during

2D1.1(b)(1),

Supreme

Court

has

sentencing enhancement schemes do

separate offenses:

or

the commission

if a

victim

"the

made it

2D1.1(d).

pellucid

that

such

not constitute punishments for

fact that the

sentencing process

has

transparent under the guidelines . . . does not mean

as though it were a distinct criminal `offense.'"

at

of the

died under

that the defendant is now being `punished' for uncharged

Ct.

1992)

By like token, a defendant convicted of drug

circumstances that would constitute murder, see id.

___ ___

become more

Cir.

will find his sentence enhanced if it turns out that

possessed a

crime,

954

2207;

see also
___ ____

id.
___

at

2206-07

Witte,
_____

conduct

115 S.

(explaining that

the

consideration

given

to

particular

conduct

at sentencing "does

offense

other

convicted").

the

than

the

So it is here.

aspects

not result in

one

of

which

of

character

and

`punishment' for any

the

defendant

was

Appellant is not being punished for

uncharged crime of murder, but, rather, he is being punished

20

more

severely for

the crime of

carjacking because

his conduct

during the

commission of the crime led to the loss of a victim's

life.

Of course, the burgeoning

use of sentence enhancers by

Congress and the Sentencing Commission

of

punishment

poses

circumstances, the

course.

In

an

obvious

lagniappe might

as part of the

danger

that,

catechism

in

begin to overwhelm

all probability, there are constitutional

extreme

the main

limits on

the way sentencing factors can be deployed in the punishment of a

substantive offense.

See id. at 2208; McMillan v.

___ ___
________

477 U.S. 79, 88 (1986).

Pennsylvania,
____________

But that proposition is only of academic

interest where, as here, the sentence enhancement scheme "neither

alters

the maximum penalty for the crime committed nor creates a

separate offense calling for a separate penalty."

McMillan, 477
________

U.S. at 87-88.

In this case, under appellant's own reading of the law,

Congress

has,

sentence of

in

essence,

life

established

imprisonment for

statutory

carjacking,

and

maximum

authorized

courts to levy such a sentence when a defendant's conduct results

in

the victim's

death.

This

paradigm is

legal effect than if Congress had

life in prison, and

no different

in its

set a statutory range of up to

the sentencing guidelines, through a

web of

enhancement

factors, had authorized a sentence of life only on a

finding

the

by

sentencing court

21

that

the

crime

resulted in

death.4

In fine,

section 2119 establishes only one

offense and

sets a range of punishment for that offense, varying according to

conduct.

So

viewed,

the

sentencing

scheme

crosses

no

constitutional boundaries.

III.
III.

CONCLUSION
CONCLUSION

We

appellant

was

need

go

fairly

no further.

tried,

justly

From

aught

convicted,

that appears,

and

lawfully

sentenced.

Affirmed.
Affirmed.
________

____________________

4One might argue that

because a judge has no

impose a life sentence unless death results,

______
to a

"rule" establishing

argument would
is taken

fail.

a separate,

"Regardless of

into account by
being

rule or as
punished

2119(c)(3) amounts

uncharged offense.

This

whether particular conduct

an act of

defendant is

still

conviction."

Witte, 115 S. Ct. at 2207.

_____

22

discretion to

only

for

discretion, the
the

offense

of