FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. José Antonio Fusté, U.S.
McGillion, with whom Ines McGillion Law Offices, PLLC, was on
brief, for appellant.
A. Schwartz, Assistant United States Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney,
and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, were on brief, for appellee.
Thompson, Kayatta, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
Cruz-Rivera ("Cruz") appeals his convictions and
sentence for federal carjacking and weapons counts. For the
reasons that follow, we affirm.
September 9, 2015, Cruz was indicted in the District of
Puerto Rico on three counts of carjacking in violation of 18
U.S.C. § 2119 and three counts of violating 18 U.S.C.
§ 924(c), which prohibits using or carrying a
"firearm" during a "crime of violence."
Id. § 924(c)(1)(A). Carjacking in violation of
§ 2119 was the predicate "crime of violence"
for each of the § 924(c) counts. In addition, the
indictment charged Cruz with one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
pleaded guilty to the three carjacking counts and proceeded
to trial on the remaining four counts. In doing so, he
stipulated that he had committed the carjacking offenses.
However, at the close of the government's evidence, and
again at the close of his own evidence, Cruz moved for a
judgment of acquittal as to the three § 924(c) counts.
He did so on the ground that the underlying carjacking in
violation of § 2119 that served as the predicate crime
for each of these counts did not qualify as a "crime of
violence" for purposes of § 924(c). See
Fed. R. Crim. P. 29.
District Court denied both motions. On October 15, 2015, a
jury convicted Cruz of all of the remaining counts. Cruz was
then sentenced to 872 months of prison and five years of
supervised release. This appeal followed.
begin with Cruz's contentions that none of his three
convictions for carjacking under § 2119 were for an
offense that qualifies as a "crime of violence"
under § 924(c) and thus that these convictions cannot
stand. Cruz preserved this issue below, which is one of law,
and so our review is de novo. United States v.
Willings, 588 F.3d 56, 58 (1st Cir. 2009).
924(c) makes it a crime for "any person [to], during and
in relation to any crime of violence . . . use or carr[y] a
firearm, or [to], in furtherance of any such crime, possess
a firearm[.]" 18 U.S.C. § 924(c)(1)(A). Section
924(c) then defines a "crime of violence" as
[A]n offense that is a felony and (A) has as an element the
use, attempted use, or threatened use of physical force
against the person or property of another, [the force clause]
or (B) that by its nature, involves a substantial
risk that physical force against the person or property of