USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 97-1267

UNITED STATES,

Appellee,

v.

REYNALDO VAZQUEZ-RIVERA,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. P rez-Gim nez, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Boudin and Stahl, Circuit Judges.

______________

_____________________

Edgardo Rodr guez-Quilichini,

_____________________________

Assistant

Federal

Public

Defender, with whom Joseph C. Laws, Jr., Federal Public Defender,

___________________
was on brief for appellant.
Jos
A. Quiles-Espinosa,
________________________
whom Guillermo Gil, United
______________
Sosa,
____

Assistant

United

Senior

Litigation Counsel,

States Attorney,

States

Attorney,

with

and Nelson P rez______________

were

on

brief

for

appellee.

____________________

February 2, 1998
____________________

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.
___________

This case is before us for the

second time.

(1st Cir.

See United States v. V zquez-Rivera, 83

___ ______________
______________

1996).

In

the first appeal, we

conviction for carjacking

F.3d 542

affirmed Appellant's

in violation of 18 U.S.C.

2119, but

concluded that the sentence was flawed because the factual record

had not

been sufficiently

enhancement

imposed.

district court

The

developed to

We thus

to reconsider

version of the carjacking

support the

remanded the

sentencing

case to

sentencing options.

statute in force

allow the

Id.
___

at 543.

at the time the

crime occurred, June 24, 1994, provided for an enhancement of the

imprisonment option available to the sentencing judge of up to 10

additional

years --

bodily injury"

U.S.C.

to a

maximum of

resulted from

2119(2).1

25

years --

the commission of

if "serious

the crime.

That provision refers to 18 U.S.C.

18

1365 for

the

definition of what constitutes "serious bodily injury" under

the

carjacking statute.

Section 1365(g)(3), which codifies part

____________________

Before its amendment in

1996, section 2119 read, in pertinent

part:

Whoever, possessing
Section

921 of

vehicle that
or received
person or

a firearm as

this

Title,

has been

defined in

takes a

transported, shipped,

in interstate commerce
presence of

violence or by

motor

from the

another by force

and

intimidation, or attempts

to

do so, shall
(1)

be

imprisoned

fined
not

under

this

more than

15

Title

or

years, or

both,
(2) if serious
in section 1365
be fined

bodily injury (as defined

of this title)

under this title

results,

or imprisoned

not more than 25 years, or both . . . .

-2-

of the

Federal Anti-Tampering Act, Pub.

L. No. 98-127,

2, 97

Stat. 831 (1983), provides that:

[T]he term

"serious bodily injury" means

injury which

involves (A)

a substantial risk of death;

(B)

extreme physical pain;

(C)

protracted and obvious disfigurement; or

(D)

protracted loss or impairment of the function of a

bodily member, organ, or mental faculty . . . .

The district court

concluded, and we

agreed, V zquez________

Rivera, 83 F.3d
______

at 546-47, that the prosecution

proved that the

carjacking victim was raped by Appellant during the commission of

the charged offense.

The trial court went on

to rule, however,

that the 10 year imprisonment enhancement was warranted, based on

a determination that the rape caused the victim "extreme physical

pain."

Although we

that this

concurred with

court's views

crime was "degrading, heinous, cruel, and brutal," id.

___

at 547, we reluctantly vacated

record devoid

court's

the district

of any

finding of

defined in the

contain any

evidence that would

"extreme physical

support the

pain," as

aforementioned legislation.

description of the

place while the

the sentence because we found the

that term

was

The record did

not

assault other than that

victim was in a debasing

district

it took

physical position, and

that

the

account

that

rape lasted

introduced as part

her physical

presented no

It

was

approximately

of the presentence

condition

signs of any cuts

otherwise

silent

five minutes.

only

two

hours

report reflected

after

or bruises in her

regarding

manifestations of this crime.

-3-

any

A medical

the

rape

vaginal area.

other

physical

On

attempt

this first

to salvage

appeal the

the sentencing

Government

enhancement

made a

belated

by arguing

the

fourth prong of Section 1365(g)(3), to the effect that the victim

had also suffered extreme mental trauma.

meagerness of the

statutory

standard

impairment of

This

record before us, we

which

required

the function

language, we

of a

objective types of harm set out in

the phraseology

of which was

were unable to meet

that

. .

ruled, mandated

Unfortunately, with the

"protracted

. mental faculty"

"evidence

victim's

only

mental

evidence

condition

of the

designed by Congress to
________

available

was

or

exist.

specific,

the statute," id. at 548 n.9,

___

the tampering of consumer goods, not rape.

___________________________

The

loss

the

deal with

Id.
___

to

contained

us

in

regarding

the

the

presentence

report,

which

professional

indicated

counseling or

support of her family

to

the probation

effect on

at 548.

that

the

victim

assistance, but

and boyfriend.

officer

that the

had

had

received

relied on

It also had

ordeal

her life, family, and consensual

"had a

our hand

concluding

the]

to specific types

of injury.

Id.,
___

causes no

and psychic

by its terms,

limited

This prevented

us from

"that any rape, regardless of the circumstances, [was

equivalent

triggering

the

devastating

relationship."

physical pain is a unique and reprehensible physical

statute in question,

the

her statement

Although we recognized that "even a rape that

invasion," id., the

___

no

[of]

the[] specified

of the enhancement.

government,

we

believed,

harms"

necessary

The interpretation

"would

broaden

for a

proposed by

measurably

the

-4-

limited

category

of

injuries

justifying a substantial increase

Id.
___

(emphasis supplied).

body, we felt

1365

that

Congress
________

the

as

in punishment for carjacking."

Without further indication

unauthorized to take the expanded

proposed by

designated

Government and

adopted

from that

view of Section

by the

district

court.

Thus we remanded to allow the Government to "provide some

evidentiary basis upon

which the court may conclude

more of the statutory conditions of harm occurred."

After remand,

but before resentencing of

the district court, Congress's

on this court's decision.

Cong. Rec.

Pub.

the so-called

as defined in Section

3410-11;

This scrutiny resulted in the

Carjacking Correction

of which

of the term "serious

1365 of Title 18.

Statement on signing

Act of

1996,

3020, which became effective on

intended purpose

this court's interpretation

appellant by

See H.R. Rep. No. 104-787, at 2-3, 142

___

L. No. 104-217, 110 Stat.

October 1, 1996, the

Id.
___

attention was momentarily focused

3409, 3410-11 (1996).

enactment of

that one or

was to

rectify

bodily injury"

See 142 Cong.

___

the Carjacking Correction

Rec. at

Act of

1996 (Pres. Bill Clinton), 1996 WL 13336081 (October 1, 1996).

Pursuant

18

was

amended to

contained in

to this new statute, Section 2119(2) of Title

redefine

Section 1365 of

constituting "sexual

the term

"serious

that Title to include

any conduct

abuse," as that term is defined in Sections

2241 and 2242 of Title 18.2

The application of this legislation

____________________

bodily injury"

Section 2 of Pub. L. No. 104-217 provides:

-5-

to appellant is one of the issues we must decide in

the present,

and latest, review of his sentence.

The Present Appeal

The Present Appeal
__________________

The

1997.

2119(2),

alia,
____

for re-sentencing on

January 17,

Prior thereto the government filed a motion announcing its

intention

that

case was called

to

seek an

enhanced sentence

pursuant to

18 U.S.C.

by introducing evidence during the sentencing hearing

the victim suffered "serious bodily injury," arguing, inter

_____

that

Carjacking

the

amendment

Correction

Act

to

that

of 1996,

section

supra,
_____

contained

was

in the

applicable to

appellant upon resentencing.

proposal,

him

Appellant

countering that the

for the

crime for

violated

the

Appellant

further

application of that

which he

Ex-Post

opposed the government's

Facto

contended

had previously

Clause

that any

of

provision to

been convicted

the

Constitution.3

"serious

bodily injury"

suffered by his victim resulted from the rape itself and not from

____________________

Section 2119(2)

of title

18, United

States

Code, is amended by inserting, "including any

conduct that, if the

conduct occurred in the

special maritime and territorial jurisdiction

of the

United States, would

2241 or 2242

of this title"

violate section
after "(defined

as in section 1365 of this title."

18 U.S.C.
sexual abuse
bodily

2241 and 2242 establish the crimes of aggravated

(by the use of

injury, or

force or threats

kidnapping)

and sexual

of death, serious

abuse, respectively,

within the special

maritime and territorial jurisdiction

of the

United States.

U.S. Const. art. I,

9, cl. 3:

No . . . ex post facto Law shall be passed.

-6-

the carjacking, and therefore that such injury could not serve as

the basis for enhancing his sentence under thecarjacking statute.

At the outset

of the sentencing hearing,

the district

judge made reference to our

the

purpose

of

the proceeding

options" (emphasis

supplied) in

panel of this court had

not

been

Id.
___

was

"to

reconsider sentencing
__________

view of the

fact that

a prior

concluded "that the factual record ha[d]

sufficiently

enhancement."

opinion, supra, at 544, stating that

_____

developed

to

support

The district court then ruled

the

sentence

that the 1996

amendment to the carjacking statute was a "mere clarification" of

the

original legislation, and thus was applicable to appellant's

remanded sentencing.

The court stated, in the alternative, that

it

the

"presume[d]

that

government

would

present sufficient

factual instances now so that the Court can support its finding .

. . even

. ."

under the law

as it was

before the clarification

. .

Finally, the court held that appellant's action of "taking"

the vehicle in

question, an element of the

which he was convicted, 18

until after

rape on

he drove

a lonely

2119(2), was not consummated

away, having abandoned

beach.

contention that any

U.S.C.

Thus,

carjacking crime for

the court

the victim

of the

rejected appellant's

serious bodily injury suffered from the rape

was not the result of the carjacking itself.

The government proceeded to present evidence

the victim's injuries.

Assistant

U.S.

Rodr guez-L pez,

This consisted of the testimony of former

Attorney

regarding

Sylvia

social

Carre o-Coll and

psychologist.

-7-

of

Mercedes

letter

dated

September 30, 1995, from the victim

to the sentencing judge, was

also made part of the sentencing record.

Carre o-Coll

testified

that

as

the

Assistant

U.S.

Attorney in charge of prosecuting this case she visited the scene

of

the rape

prior

to

the trial,

accompanied

by the

victim.

During the course of

this viewing and the

with the victim, the

victim told her "how helpless she felt, how

threatened, the

terror that she

related conversations

felt that night," that

as they

approached the scene of the crime the victim became "increasingly

nervous

and visibly

upset," and

crying and basically

. .

. had to

because she couldn't stand."

the rape

testified

dizzy .

be carried

. .

started

back to the

On the return trip to

took place in a remote beach

"she cried all the

. had to

"became

car

San Juan --

about 40 miles distant --

way back . . .[,] was extremely quiet and . .

[be] take[n] .

. . to

her house."

Carre o-Coll also

that during other pretrial interviews with the victim,

when they "got to the

part of the rape, .

very upset, very nervous."

. . she would

become

At the district court's prompting she

also testified that the victim told her "that

she feared for her

life throughout the ordeal," "felt deeply humiliated," "felt pain

. . . and

deeply violated while the rape was

taking place," and

"felt dirty and in pain throughout the event."

Mercedes

Rodr guez-L pez

testified

that

she

was

licensed

social

psychologist

with

experience

in

the

environment of victims

who survived crime, particularly

of violence

She was a

or rape.

counselor and director

health

victims

of the

-8-

Rape Victims Health Center and

stated that she had approximately

twenty years of experience dealing with rape victims.

L pez indicated that

she held two

Rodr guez-

personal interviews with

the

victim, the second one a week before the hearing, as well

or seven telephone conversations, for

fifteen hours of interviews.

questionnaire

the

forwarded to

subject of

filed

a written

as six

a total of about twelve to

In addition the victim filled out a

her by Rodr guez-L pez

the sentencing

hearing.

report which was

dealing with

Rodr guez-L pez

generally repetitious

also

of her

testimony.

Rodr guez-L pez indicated that the victim "has not been

able to

survive the effects

of this rape[;] she

is confronting

some acute reactions which . . . are chronic due to the prolonged

period she has

been through them and

the least I can

say about

the process that [the victim] has gone [through] is these are the

most devastating ones that I have ever seen about someone who has

gone

through a

victim

suffered

rape

process."

non-resolved

stress syndrome, which

Rodr guez

rape

trauma

testified that

and

the

post-traumatic

manifested itself as "fear,

the sense of

distrust, physical discomfort, loss of energy, a loss of faith in

life and the

to

sensation that would it [sic] have

die than continue living are

rape as

concluded

if the

rape

her

testimony

whatsoever that the

[sic] three years now after the

were virtual

by

been better off

saying

in this moment

that

she

"had

now."

no

[victim's] physical pain was extreme

time [of the rape], days after this

-9-

She

doubt

at the

rape and even now on a daily

basis

that pain

level

I have

damage,

is rekindled

no

doubt

and in

the emotional

whatsoever that

extreme, critical of the

we

emotional

and mental

are facing

severe

condition and which

effect [sic] her function, individual, social, family level."

Rodr guez-L pez's report dated December 12, 1996, which

is also part of the record,

at

the hearing.

unable

to

It

substantially supports her testimony

also documents

finish

her

college

completed

two and

one

half

condition

that

she

was

that the

education,

years,

of

because of

suffering "as

victim

which

the

consequence

has been

she

has

emotional

of

the

robbery, kidnapping and rape she suffered in 1994."

The

government also introduced

dated September

30, 1995,

judge, which the

directed by the

judge indicated was

original sentencing but

into evidence a letter

not placed

victim to

read by him

into the

the trial

prior to

the

record because

he

felt that the presence of the press at that hearing would further

stigmatize the

the violation

which

without

victim.

In

"was only the

she do[es] not

having someone

her letter the victim

indicates how

beginning of a long

nightmare [in]

even dare go

to the corner

accompanying"

her.

of the street

She is

"afraid of

anyone who stands near" her, and her "distrust in everything that

surrounds [her] controls [her] life."

At the

conclusion of

the hearing

the district

judge

reiterated his ruling that

the 1996 amendment was

applicable to

appellant, and concluded that "the factual record is replete with

evidence

to

support the

finding

that

the victim

did

suffer

-10-

extreme physical pain and that

. . post

because

she is presently suffering from .

traumatic stress syndrome [or rape

of]

the presence

of

the disorder

trauma syndrome and

. .,

her mental

faculties have been affected in [sic] a large extent."

The Ex Post Facto Issue

The Ex Post Facto Issue
_______________________

It

is

an

elementary

government, one ingrained

post facto

criminal

principle

in the history of our

laws are

not to

cl. 3.

Florida,
_______

(2)

nature,

it

482 U.S.

Collins
_______

must

be

423, 430 (1987),

events occurring before

of

Thus

the

application of criminal

U.S. Const. art. I,

v. Youngblood,
__________

applied

form

Nation, that ex

In order to trigger this provision, (1)

criminal in

(1990);

prejudice of a defendant.

our

be tolerated.

Constitution prohibits the retrospective

laws to the

of

the law must be

497

U.S.

retrospectively,

that is,

its enactment, Lynce

_____

9,

it must

37,

41

Miller
______

v.

apply to

v. Mathis, 117
______

S.

Ct. 891, 895

(1997); and

(3) the

application of

disadvantage the offender

affected by it, Weaver

______

U.S.

altering

24, 29

(1981),

by

the law

must

v. Graham, 450
______

the definition

of

criminal

conduct or increasing the punishment for the crime, Lynce, 117 S.

_____

Ct. at 895.

Measured against these criteria, there should be little

doubt

that the application

Correction

Act to

appellant

of the provisions

for

convicted violates the ex post facto

There is no

it

the crime

in 1996 to

be applied

-11-

for

which he

was

clause of the Constitution.

question about the criminal nature

was enacted

of the Carjacking

of this statute;

to a crime

committed in

1994, thus its

appellant

retroactive enforcement is patent;

to be punished more stringently

and it allows

than was permitted by

this court's decision prior to the passage of the enactment.

Painting

black

lines

on

the sides

calling it a zebra does not make it one.

1996

amendment a

"clarification" of

original law is legally

case, this

irrelevant.

court decided what

of

horse and

Similarly, labeling the

Congress's

intent in

the

In the first appeal of this

Congress's intention was

when it

enacted the original statute.

548.

"Having

achieved

V zquez-Rivera, supra, 83 F.3d. at

______________ _____

finality,

. .

a judicial

decision

becomes the last word of the judicial department with regard to a

particular

case or controversy, and

Congress may not declare by

retroactive legislation that the law applicable to that very case

was something other

than what the courts said it was."

Spendthrift Farms, Inc., 514 U.S.

________________________

hoc statements regarding

in the new

injury"

designed

to

do not

final, finding as to what that

Furthermore, as can be seen by the changes reflected

statute, in which the critical

is

Thus, post

the original legislative intent

affect this court's previous, and

intent was.

211, 227 (1995).

Plaut v.
_____

redefined

prevent

from

within

tampering

with

the

term, "serious bodily

context

consumer

of a

goods,

statute

to

one

concerned

with

sexual

abuse,

it

is

obvious

that

the

"clarification" is more than merely cosmetic.

We are therefore

record in

the light

required to consider the

of our interpretation

before it was amended in 1996.

______

-12-

The new factual record

The new factual record

new factual

of Section

2119(2),

______________________

The new

record is devoid

of any

valid evidence

that

will support a finding of extreme physical pain, as that term was

________

interpreted by us in the first appeal.

547.

V zquez-Rivera, supra, at
______________ _____

We are thus unable to approve the district court's findings

in this respect.

There is, nevertheless,

the conclusion that the victim

impairment

of

1365(g)(3)(D).

been

stated

in

sufficient evidence to support

has suffered a "protracted . .

mental

facult[ies]."

Without unduly

repeating what

this

ante
____

opinion,

establishes that as a direct

at

18

U.S.C.

has previously

4-5,

the

evidence

consequence of the rape, the victim

is very much emotionally disturbed, and suffers

a chronic mental

condition,

which persists even though several years have elapsed

since

grievous

her

strangers or

to leave

incident.

trauma or post-traumatic

prevented her

to

be

around

is morose,

has

physical discomfort, despondency, and

and has a loss of physical

as rape

afraid

her house unaccompanied,

crying spells, feelings of

fear,

She is

from leading a

energy.

Her malady, diagnosed

stress disorder, has

normal life, it has

not only

truncated the

completion of the remaining one and one-half years of her college

education

because she

endeavors, cannot

is

unable

to

concentrate

in

academic

engage in social discourse and is not tolerant

of the company of others.

We believe this evidence sufficiently

fills the lacuna left open

in the government's first request for

the

enhancement provided

by 18

U.S.C.

2119(2) for

cases in

-13-

which a carjacking results in

to

the "protracted

facult[ies]."

One

impairment of

18 U.S.C.

last

contention

that even

injury," it

did not

"serious bodily injury" by leading

. .

. [the

victim's] mental

1365(g)(3)(D).

argument

if the

remains

rape

result from the

unaddressed,

appellant's

constitutes "serious

bodily

carjacking itself,

and is

therefore outside the coverage of the statute.

By its terms, the

carjacking statute seeks to punish the use of force, violence, or

intimidation to

enhancement

"take" a

of the

vehicle,

and it

punishment when

results in serious bodily injury.

carjacking victim suffers

further provides

the taking

of the

an

vehicle

Appellant contends that when a

an injury unrelated

to the taking

of

the vehicle, the harm, however severe, falls outside the ambit of

the carjacking statute.

the rape was

He therefore argues that

not the "result" of

in this case,

the carjacking because

it was

not intended to assist in the taking of the vehicle.

Appellant's

resolve in the

n.10, raises

precise

argument,

which

we

noted

first appeal, see Rivera-V zquez, 83

___ ______________

the not

temporal

insubstantial problem

limits

of

the

crime

but

did

F.3d at 548

of delineating

of

not

the

carjacking.

Nevertheless, although we need not provide a comprehensive answer

to this problem, we find appellant's proposed construction of the

carjacking statute to

there is no

"necessary

vehicle

We begin

by noting that

textual basis for asserting that the

injury must be

to" or

itself.

be unconvincing.

"intended to

To

the

effectuate"

contrary, the

-14-

the taking

choice

of

the

of the

word

"results" in the statutory phrase "if serious bodily injury . . .

results" suggests that Congress intended to cover a

range

of consequences flowing from

legislative history characterized

enhancement when

Anti

Car Theft

the

Act,

U.S.C.A.A.N. 2847, at

a carjacking.

L. No.

Moreover, the

the provision as imposing

carjacking "involves
________

Pub.

fairly broad

102-519,

the

bodily injury,"

see
___

reprinted in
____________

1992

2865 (emphasis added), which

supports the

view that the injuries covered are not limited to those resulting

from

the "taking" of a vehicle, but also include those caused by

the carjacker

vehicle.

at any point

during his

or her retention

of the

Cf. United States v. Cruz, 106 F.3d 1134, 1137 (3d Cir.
___ _____________
____

1997) (holding that a young woman raped during a carjacking was a

"victim" of the carjacking for

sentencing purposes and that

the

court could

the

"look at all

conviction").

the conduct underlying the

Furthermore,

this

interpretation of sentencing enhancement

United States v. Rivera-G mez, 67

_____________
____________

(noting

that

"represents a

committing

crime,

the

the

congressional

the crime

as actually

demise

sentencing

of

consistent with

the

of

with

our

regimes generally.

See
___

regime

in

judgment that

carjacking should

18

victim.").

of our

of a firearm,

U.S.C.

punishment

for

be

harsher if

the

that produces

This interpretation

prior

2119

the

perpetrated, includes conduct

the tenor

the use

accords

F.3d 993, 1001 (1st Cir. 1995)

admissibility of the evidence of the

the crime,

view

offense of

is

also

holding regarding

the

rape to prove an element of

which was

first seen

by the

-15-

victim when

appellant placed

the weapon

on top of

the car

to

intimidate her immediately prior to raping her.

We

thus conclude that, under the circumstances of this

case, the carjacking

the impairment of

district

court

resulted in serious bodily

injury, namely,

the victim's mental faculties.

did not

abuse

its discretion

Therefore, the

in

imposing the

sentencing enhancement provided by Section 2119(2).4

For the reasons stated in this opinion, the decision of

the district court is AFFIRMED.

AFFIRMED

____________________

We also

application
"The

find that
of

the rule of

the section

rule of lenity

lenity does not

2119(2)

applies only

enhancement

if, after

prevent the

to appellant.

seizing everything

from which aid can be derived, [a court] can make no

guess as to what Congress intended."
___, 115

S. Ct. 2021, 2029 (1995).

more than a

Reno v. Koray, 515 U.S. 50,

____
_____
A

prior panel of this court

has thus noted that, "[p]ut bluntly, the rule of lenity cannot be
used to create ambiguity when the
readily

apparent, is, upon

meaning of a law, even if

inquiry, reasonably clear."

States v. Nippon Paper Ind. Co., Ltd.,

______
____________________________
1997).

As

our discussion

109 F.3d 1, 8

above demonstrates,

we do

United
______

(1st Cir.

not find

section 2119(2) to be ambiguous - only somewhat complicated.

-16-

not