FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S.
Mauricio Hernandez Arroyo, for defendant-appellant.
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.
Howard, Chief Judge, Lipez and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE
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.
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.
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.
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.
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
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.
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."
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.
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.
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.
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.
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
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.
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.
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." Galindo did not otherwise object to his
sentence. On August 30, ...