As Amended July 16, 2015.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Daniel R. Domínguez, U.S. District Judge.
H. Manuel Hernández, with whom H. Manuel Hernández, P.A., was on brief for Appellant.
Susan Z. Jorgensen, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Francisco A. Besosa-Martínez, Assistant United States Attorney, were on brief for Appellee.
Before Torruella, Thompson, and Kayatta, Circuit Judges.
THOMPSON, Circuit Judge.
His third time before us, Defendant-Appellant JoséGarcía-Ortiz (" García" ) asks us to vacate his 2004 robbery conviction, arguing that the government did not present enough evidence at his jury trial to sustain it. He also argues that the district judge erred at his sentencing by failing to consider certain of his mitigating arguments, by ordering his sentences be served consecutively instead of concurrently, and by improperly imposing $60,000 in restitution.
Seeing error only in the district court's restitution order, we affirm García's conviction, and vacate and remand only the restitution portion of his sentence.
As this is García's third appeal, we will not repeat another detailed recitation of the facts. But here's our mise-en-scène.
In 2001, a food warehouse manager and his security escort were walking to the manager's car with a bag of cash, which they planned to deposit at the bank. Two men ran toward them. One of the men grabbed the guard, and after a struggle, gunshots were fired. The guard, who was apparently armed, returned fire and shot and killed one of the ill-fated bandits.
After the mê lée, the manager heard voices from the nearby-parked getaway car yelling " kill him." One of the robbers grabbed the bag of cash while the manager lay on the ground, beseeching mercy. The manager heard two more shots (presumably from the robbers because the wounded guard had already emptied his chamber), but fortunately neither the manager nor guard were killed. The getaway car sped away, and the assailants made off with $60,000.
Forensics later showed that three guns were fired during the robbery, one belonging to the guard. The getaway car, which had been reported stolen about a month before the robbery, was recovered nearby the scene, donning a bullet hole in one of the side windows. The rear window was also completely broken out and shell casings lay about, the backseat blood-stained.
Law enforcement naturally started investigating. Police suspected García was involved in the robbery after they discovered a photo of him with the deceased robber at a mechanic shop that had been under police surveillance.
The FBI brought García (and other suspects) in to collect their DNA samples. García also consented to a body search, during which the FBI found what appeared to be a bullet wound on his body with metallic residue. Another piece of damning evidence, the FBI lab confirmed that García's DNA was in the backseat of the abandoned escape ride, prompting the FBI to exclude the other suspects.
García was indicted on charges of intentional obstruction of commerce by robbery under the Hobbs Act, 18 U.S.C. § § 2 and 1951(a) (Count One);  unlawfully carrying and using a firearm during a crime of violence under 18 U.S.C. § § 2 and 924(c)(1)(A) (Count Two);  ...