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Date: 10-17-2021
Case Style:
United States of America v. LUIS SOLÍS-VÁSQUEZ, a/k/a Brujo
Case Number: 19-1027
19-1745
Judge: Sandra Lea Lynch
Court: United States Court of Appeals
For the First Circuit
Plaintiff's Attorney: Sonja M. Ralston, Attorney, Appellate Section, Criminal
Division, U.S. Department of Justice, with whom Andrew E. Lelling,
United States Attorney, Donald C. Lockhart, Assistant United
States Attorney, Brian C. Rabbitt, Acting Assistant Attorney
General, and Robert A. Zink, Acting Deputy Assistant Attorney
General
Defendant's Attorney:
Description:
Boston, MA - Criminal defense lawyer represented defendant with RICO conspiracy charges for his involvement in the "Mara Salvatrucha" gang, commonly known as "MS-13.
We discuss the facts relevant to the restitution order
and refer to our companion opinion, Pérez-Vásquez, 2021 WL 3140521,
to describe the background of the case.
- 3 -
At the time of the events in this case, Solís-Vásquez
was a member of MS-13. MS-13's mission is to kill rival gang
members, and one of MS-13's "rules" is that members should kill
rival gang members on sight if they have the opportunity to do so.
They are also required to help fellow MS-13 members to do so when
asked.
In the early morning of December 14, 2014, at an
apartment in Chelsea, Enamorado ran into several rival gang members
who had assaulted him the night before. He called Pérez-Vásquez
and asked him to bring a gang-owned gun to the apartment because
he was going to kill the rival gang members. Pérez-Vásquez told
Solís-Vásquez about this request and said he would bring the gun
to Enamorado. Solís-Vásquez decided to go with Pérez-Vásquez to
meet Enamorado and brought a second gun.
When they arrived at the apartment, Enamorado took the
first gun from Pérez-Vásquez and told Solís-Vásquez to wait at the
door with the second gun so no one could leave. Solís-Vásquez
waited for a few minutes, then went to smoke a cigarette on the
porch. Moments later, Enamorado shot and killed one of the rival
gang members, Javier Ortiz. Enamorado then shot Saul Rivera, who
witnessed the shooting of Ortiz, in the chest. Rivera survived
and sustained losses of $32,984.03 in medical expenses and lost
wages. F0F Solís-Vásquez does not dispute the loss amount.
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II. Procedural History
Solís-Vásquez was tried alongside Enamorado and PérezVásquez. A jury convicted Solís-Vásquez and his codefendants of
RICO conspiracy, with a special finding that each was guilty as
part of the RICO conspiracy of second-degree murder of Ortiz. The
jury made no special findings with respect to the shooting of
Rivera.
On July 11, 2019, the district court conducted a
restitution hearing and ordered the defendants to pay restitution
to Rivera. Solís-Vásquez argued that he should not be made to pay
restitution because he was a "nonparticipant" in the Rivera
shooting, and that the shooting was "outside the scope of the
agreement to kill Javier Ortiz." In the alternative, he argued
that he should pay a lesser amount than his codefendants because
of his lesser role in the offense.
The district court determined that restitution was
mandatory under the MVRA because the RICO conspiracy was a "crime
of violence with an identifiable victim, Saul Rivera, who suffered
a physical injury." See 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(i).
Enamorado and Pérez-Vásquez were ordered to pay the full amount.
Solís-Vásquez was ordered to pay half the loss amount, $16,492.01,
on account of his lesser role in the offense.
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III. Analysis
The MVRA requires the district court to order
restitution where the defendant is found guilty of a "crime of
violence, as defined in section 16 [of Title 18] . . . in which an
identifiable victim or victims has suffered a physical injury or
pecuniary loss." 18 U.S.C. § 3663A(c)(1). Section 16 defines a
crime of violence as "an offense that has as an element the use,
attempted use, or threatened use of physical force against the
person or property of another." 18 U.S.C. § 16(a).1F1F
1
The MVRA defines a "victim" as "a person directly and
proximately harmed as a result of the commission of an
offense . . . including . . . any person directly harmed by the
defendant's criminal conduct in the course of [a] scheme,
conspiracy, or pattern." 18 U.S.C. § 3663A(a)(2). In United
States v. Collins, we read this language to mean that "each
conspirator may be ordered to pay restitution for all the
1 In Sessions v. Dimaya, 138 S. Ct. 1204 (2018), the Supreme
Court held that the "residual" clause of Section 16, which defines
a "crime of violence" to also include "any other offense that is
a felony and that, by its nature, involves a substantial risk that
physical force against the person or property of another may be
used in the course of committing the offense," id. at 1211 (quoting
18 U.S.C. § 16(b)), was unconstitutionally vague as incorporated
into the Immigration and Nationality Act's definition of
"aggravated felony," id. at 1223. Neither party argues that the
residual clause is constitutional as incorporated in the MVRA.
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reasonably foreseeable losses caused by any conspirator in the
course of the conspiracy."2 209 F.3d 1, 3 (1st Cir. 1999).
Solís-Vásquez makes three arguments that the district
court erred in requiring him to pay restitution for the shooting
of Saul Rivera under the MVRA. As to preserved issues, "[w]e
review factual findings underlying a restitution order for clear
error and legal conclusions de novo." United States v. Chin, 965
F.3d 41, 59 (1st Cir. 2020). "The final order is reviewed for
abuse of discretion." Id.
Solís-Vásquez renews his argument on appeal that Rivera
was not a "victim" under the terms of the MVRA because he was not
"directly" harmed by Solís-Vásquez's criminal conduct. See 18
U.S.C. § 3663A(a)(2). In making this argument, Solís-Vásquez asks
us to overturn our holding in Collins, and hold instead that the
MVRA's definition of "victim" does not include those injured by a
defendant's coconspirators. The argument fails. Under the "law
of the circuit doctrine" we are bound by our decision in Collins.
United States v. Lewis, 963 F.3d 16, 23 (1st Cir. 2020). And to
the extent that this argument rests on Solís-Vásquez's claim that
he was just a bystander rather than a participant in the crime,
the jury said that was not the case.
2 Collins concerned a discretionary order of restitution
under 18 U.S.C. § 3663 rather than mandatory restitution under 18
U.S.C. § 3663A, but the sections use identical language to define
"victim."
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Solís-Vásquez next argues that he cannot be held
accountable for Rivera's injuries because Enamorado's shooting of
Rivera was not within the scope of the conspiracy. This argument
misunderstands what the issue is. The issue is not whether the
shooting of Rivera was an aim of the conspiracy but whether the
harm to Rivera was "reasonably foreseeable . . . in the course of
the conspiracy." Collins, 209 F.3d at 3. The shooting of Rivera
in the apartment when he was a witness to the murder in an armed
conflict between rival gangs was certainly reasonably foreseeable.
There was no clear error.
Solís-Vásquez's next argument is that RICO conspiracy is
not a crime of violence under the MVRA. But that is not the issue
before us. Our issue is whether restitution is mandatory under
the MVRA when a defendant is convicted of participating in
aggravated RICO conspiracy and there is a jury finding of seconddegree murder under Massachusetts law.
Because Solís-Vásquez did not raise this objection in
the district court, we review only for plain error. United States
v. Flete-Garcia, 925 F.3d 17, 37 (1st Cir. 2019). To prevail,
Solís-Vásquez must show "(1) that an error occurred (2) which was
clear or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings." United
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States v. Mercado, 777 F.3d 532, 536 (1st Cir. 2015) (quoting
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).
Restitution is mandatory under the MVRA where the
defendant was convicted of a crime that includes as an element
that the defendant used, attempted to use, or threatened to use
physical force against another. 18 U.S.C. §§ 16(a),
3663A(c)(1)(A)(i); see also Sessions, 138 S. Ct. at 1211. The socalled "categorical approach" requires an assessment of the
"elements of the statute of conviction" rather than the "facts of
each defendant's conduct." United States v. Fish, 758 F.3d 1, 5
(1st Cir. 2014) (quoting Taylor v. United States, 495 U.S. 575,
601 (1990)). That assessment compels us to "compare the elements
of the crime for which the defendant was previously convicted with
Congress's definition of the type of crime that may serve as a
predicate offense." Id. Thus, the critical inquiry is whether
the "most innocent conduct" criminalized by the statue under which
the defendant was convicted qualifies as a crime of violence under
the categorical approach. Id. (quoting Karimi v. Holder, 715 F.3d
561, 567 (4th Cir. 2013)).
"If the statute under which the defendant was previously
convicted is divisible, meaning 'it comprises multiple,
alternative versions of a crime not all of which qualify [as a
crime of violence],' courts apply a 'modified' categorical
approach." United States v. Delgado-Sánchez, 849 F.3d 1, 7-8 (1st
- 9 -
Cir. 2017) (quoting United States v. Castro-Vásquez, 802 F.3d 28,
35 (1st Cir. 2015)). "Under that approach, a sentencing court
looks to a limited class of documents (for example, the indictment,
jury instructions, or plea agreement and colloquy) to determine
what crime, with what elements, a defendant was convicted of."
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016); see also
Pereida v. Wilkinson, 141 S. Ct. 754, 763 (2021) (explaining the
modified categorial approach). Where a statute includes a
"sentencing element" permitting the court to impose a higher
sentence only when certain conditions are met, "it is right to
consider this as an element of the crime[] of conviction" "for the
purposes of the modified categorical approach." United States v.
Tsarnaev, 968 F.3d 24, 105 (1st Cir. 2020), cert. granted on other
grounds, 141 S. Ct. 1683 (2021); see also Mathis, 136 S. Ct. at
2256.
This circuit considered whether a divisible conspiracy
crime was a crime of violence in Tsarnaev. 968 F.3d at 103-05.
Tsarnaev was convicted of conspiracy to use a weapon of mass
destruction and conspiracy to bomb a place of public use. Id. at
103. The conspiracy statutes at issue provided for punishment "by
death or imprison[ment] for any term of years or for life" only
where "death result[ed]," and the jury determined beyond a
reasonable doubt that at least one person had died as a result of
the conspiracy. Id. at 103 (quoting 18 U.S.C. § 2332a(a)). The
- 10 -
court held that, in such circumstances, the crime was divisible
and "while most conspiracies are not crimes of violence,
conspiracies that are categorically defined to result in death
are" crimes of violence under the ACCA.3 Id. at 104. The court
explained that this approach "align[ed] with the purpose" of the
modified categorical approach and did not risk the "practical
difficulties and potential unfairness of a factual approach." Id.
at 105 (quoting Taylor, 495 U.S. at 601); see also Mathis, 136 S.
Ct. at 2252-53 (explaining that the purposes of the categorical
approach include avoiding Sixth Amendment concerns arising from a
sentencing judge finding facts that increase a maximum penalty and
the likelihood of error as to "non-elemental fact[s]" because
"their proof is unnecessary").
Solís-Vásquez argues that RICO conspiracy is an
indivisible offense and that it encompasses both violent and nonviolent conduct. The government responds that RICO conspiracy is
a divisible offense, and that Solís-Vásquez was convicted of
"aggravated RICO conspiracy," which has an added sentencing
element that the conspiracy "is based on a racketeering activity
for which the maximum penalty includes life imprisonment." 18
3 In United States v. Simmons, 999 F.3d 199, 216 (4th Cir.
2021), the Fourth Circuit disagreed with Tsarnaev's conclusion
that "an 'element' relevant only to an enhanced sentence is
necessarily an element of the conviction." It therefore concluded
that RICO conspiracy is not a divisible crime. Id.
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U.S.C. § 1963(a). Solís-Vásquez responds that even if RICO
conspiracy is a divisible offense, it does not follow that
aggravated RICO conspiracy is "divisible by predicate crime."
Thus, he argues, because some crimes carrying a penalty of life
imprisonment are not crimes of violence, aggravated RICO
conspiracy is not categorically a crime of violence.
Solís-Vásquez also argues that aggravated RICO
conspiracy does not require a completed predicate act, and thus
that it cannot be a crime of violence. See Tsarnaev, 968 F.3d at
100 (holding that conspiracy to commit a violent act does not
qualify as a crime of violence if it does not have an element of
actually using, or attempting to use, physical force). The
government responded in a letter submitted after oral argument
that § 1963(a) is properly read to mean that a conviction of
aggravated RICO conspiracy, unlike unenhanced RICO conspiracy,
requires a completed predicate offense. The government argues
that aggravated RICO conspiracy incorporates a completed state
crime as a predicate offense and that it cannot obtain a life
sentence for a RICO violation without proving that the defendant
committed the underlying offense carrying a life sentence. Here,
the predicate offense is second-degree murder. Second-degree
murder under Massachusetts law is a crime of violence. See United
States v. Báez-Martínez, 950 F.3d 119, 126-28 (1st Cir. 2020)
(holding second-degree murder requiring malice aforethought is a
- 12 -
crime of violence under the Armed Career Criminal Act (ACCA)); see
also Commonwealth v. Earle, 937 N.E.2d 42, 47 (Mass. 2010) ("The
elements of murder in the second degree are (1) an unlawful killing
and (2) malice.").
United States v. Nguyen offers support for finding that
aggravated RICO conspiracy is divisible by predicate act for
purposes of the modified categorical approach. 255 F.3d 1335, 1343
(11th Cir. 2001). There, the Eleventh Circuit found that, in order
for a life sentence to be imposed under 18 U.S.C. § 1963(a), the
jury must find beyond a reasonable doubt that the defendant
completed the predicate crime. Id. This holding in Nguyen
supports a reading of § 1963(a) which incorporates the elements of
the predicate act, here, second-degree murder, into the statute.
Solís-Vásquez fails to point to any binding precedent
that aggravated RICO conspiracy based on murder is not a crime of
violence.4 In light of the substantial case law supporting the
district court's ruling, Solís-Vásquez fails to demonstrate any
"clear or obvious" error. It is not necessary at this time to
decide whether aggravated RICO conspiracy is a crime of violence
4 In a post-argument Rule 28(j) letter, Solís-Vásquez
points to United States v. Green, in which the Eleventh Circuit
held that 18 U.S.C. § 1962(d) was not a crime of violence under
the MVRA. 981 F.3d 945, 952 (11th Cir. 2020). But that decision
does not address the divisibility of 18 U.S.C. § 1963(a), the
aggravated form of conspiracy central to this case.
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under § 16(a) where the jury has made a special finding that the
defendant is guilty of second-degree murder because the "clear or
obvious" prong of the plain error test has not been met.
As Solís-Vásquez cannot demonstrate "clear or obvious"
error by the district court, we do not address the final two prongs
of plain error review. Ordering restitution in this case aligns
both with Congress’s goal of ensuring compensation for victims of
crime and the purposes of the categorical approach.
Outcome: Affirmed
Plaintiff's Experts:
Defendant's Experts:
Comments: