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United States v. Galindo-Serrano

United States Court of Appeals, First Circuit

May 30, 2019

UNITED STATES OF AMERICA, Appellee,
v.
GABRIEL GALINDO-SERRANO, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge]

          Mauricio Hernandez Arroyo, for defendant-appellant.

          B. Kathryn Debrason, 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.

          Before Howard, Chief Judge, Lipez and Barron, Circuit Judges.

          BARRON, CIRCUIT JUDGE

         Gabriel Galindo-Serrano ("Galindo") appeals his convictions for various federal carjacking and firearm offenses relating to two incidents of carjacking in June and July of 2014 as well as his 600-month prison sentence. We affirm the convictions and the sentence.

         I.

         On July 24, 2014, a federal grand jury in the District of Puerto Rico indicted Galindo and co-defendant Jean Morales-Rivera ("Morales") for carjacking, in violation of 18 U.S.C. §§ 2119(1) and (2) ("Count One"), and use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) ("Count Two"). Those counts described an incident that allegedly occurred on June 16, 2014. During the incident, Galindo and Morales allegedly approached a man ("J.F.M.") and a woman ("M.R.N.") standing near a car and threatened them with a revolver unless they handed over their car keys. Galindo then allegedly drove away in their car.

         The indictment also charged Galindo with separate counts of carjacking "resulting in serious bodily injury, that is: sexual assault," in violation of 18 U.S.C. § 2119(2) ("Count Three"), use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) ("Count Four"), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) ("Count Five"). Those counts described an incident that allegedly occurred on July 8, 2014, in which Galindo allegedly pointed a gun at a woman ("N.A.M.") stopped at a traffic light, entered her car (which was registered to her mother) and took over the wheel. He then allegedly drove her to a basketball court, where he raped her and left her bleeding.

         Galindo proceeded to trial on all five counts. Two days into the trial, he moved to suppress statements that he had made to Federal Bureau of Investigation ("FBI") agents following his arrest. In those statements, he confessed to both carjackings and to the sexual assault. The government objected that the motion to suppress was untimely. The District Court noted that the motion had "been filed belatedly," but decided to "have a [suppression] hearing anyway." The District Court denied the motion.

         At trial, the government presented testimony from M.R.N. and N.A.M. In that testimony, they recounted the carjackings and positively identified Galindo as the perpetrator. The government also presented testimony from the operator who took M.R.N.'s 911 call, the individual who assisted N.A.M. after she had been abandoned on the basketball court, the doctor who treated N.A.M. at the hospital and performed her rape kit, and the DNA specialist who tested the rape kit and determined that the DNA samples from the rape kit matched Galindo's DNA.

         In addition, the government presented testimony from police officers. They testified that they had heard Galindo's confession following his arrest and observed Galindo driving N.A.M.'s mother's car while in possession of a firearm. The defense did not present any evidence. A jury convicted Galindo of all counts.

         At the beginning of Galindo's sentencing hearing on July 6, 2016, defense counsel pointed out that Galindo had signs of self-inflicted injury and moved for a continuance so that a competency evaluation could be undertaken. The District Court, noting a lack of evidence of psychological problems in the record, responded that it would go forward with the sentencing that day but indicated that it would order a post-sentencing competency evaluation. Based on "the report from the evaluation," the District Court would "[re]consider the matter [of competency]" and might "resentence [Galindo] . . . or proceed accordingly, depending on the evaluation, what it says."

         The District Court then sentenced Galindo to concurrent 120-month prison sentences for Counts One, Three, and Five to be served consecutive to a seven-year prison sentence for Count Two and a thirty-three-year prison sentence for Count Four. In total, the District Court sentenced Galindo to 600 months in prison.

         After the District Court announced the sentence, defense counsel again objected that Galindo "may or may not be competent to understand what the proceedings have been here today." Defense counsel did not, at that time, make any other objection to Galindo's sentence based on the state of his mental health.

         On July 7, 2016, defense counsel filed a motion for "an extension of time within which to file the notice of appeal or an appeal until 15 days after the mental health report is filed by the [Bureau of Prisons]." The District Court granted the motion on July 27, 2016.

         The competency evaluation was filed with the District Court on November 23, 2016. The evaluation concluded that Galindo did not present with a mental disease or defect that rendered him incompetent to be sentenced. Galindo then appealed his convictions and sentence on November 29, 2016.

         On January 3, 2017, we issued an order to show cause why Galindo's appeal should not be dismissed as untimely. Federal Rule of Appellate Procedure 4(b) requires that a criminal "defendant's notice of appeal . . . be filed within 14 days of the entry of . . . the judgment . . . being appealed." Fed. R. App. P. 4(b)(1)(A)(i). "Although the [D]istrict Court may extend the time for filing a notice of appeal by up to 30 additional days upon a showing of excusable neglect or good cause [under Federal Rule of Appellate Procedure 4(b)(4)]," we explained, "the [D]istrict [C]ourt does not have authority" -- as it did here -- "to extend the time to appeal beyond that point [under Federal Rule of Appellate Procedure 26(b)(1)]."

         On January 17, 2017, the government filed a response to our show-cause order in which it "request[ed] that the instant appeal be dismissed as untimely." On January 20, 2017, Galindo filed a response to our show-cause order and cross-moved for a stay of his appeal pending the resolution of a separate motion to vacate his sentence that he had filed with the District Court on January 19, 2017.

         On June 29, 2017, the government moved to withdraw its motion to dismiss the appeal as untimely. On July 13, 2017, we granted the government's motion to withdraw its motion to dismiss and denied Galindo's motion to stay his appeal. We have "h[e]ld that Rule 4(b)'s time limits are not 'mandatory and jurisdictional' in the absence of a timely objection from the government." United States v. Reyes-Santiago, 804 F.3d 453, 458 (1st Cir. 2015) (quoting Fed. R. Crim. P. 37(a)(2)). Our jurisdiction to consider this appeal is therefore secure.

         The separate January 19, 2017 motion to vacate Galindo's sentence was filed with the District Court on the understanding that "[t]he appeal st[ood] to be dismissed." In the motion, Galindo contended that, pursuant to 18 U.S.C. § 4241 (providing that a "court shall grant" a "motion for a hearing to determine the mental competency of the defendant" "if there is reasonable cause to believe that the defendant may presently be . . . mentally incompetent"), the July 6, 2016 judgment "should not have been entered without the competency of the defendant being assured."[1] Galindo did not otherwise object to his sentence. On August 30, ...


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