          United States Court of Appeals
                     For the First Circuit


No. 16-2071

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                     RAFAEL SANTIAGO-REYES,
                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Francisco A. Besosa, U.S. District Judge]


                             Before

                      Howard, Chief Judge,
              Torruella and Lynch, Circuit Judges.


     Javier A. Morales-Ramos on brief for appellant.
     Rosa   Emilia  Rodríguez-Vélez,   United   States   Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and B. Kathryn Debrason, Assistant United
States Attorney, on brief for appellee.


                        December 15, 2017
          LYNCH, Circuit Judge.       Rafael Santiago-Reyes appeals

from the reduced sentence he received after a limited remand for

resentencing.   He argues that the district court should have

dismissed his 18 U.S.C. § 924(c) count in light of Johnson v.

United States, 135 S. Ct. 2551 (2015).      We disagree.   Santiago-

Reyes had a pending 18 U.S.C. § 2255 motion to vacate his sentence,

based on the same Johnson grounds, which the court said it would

entertain in a separate hearing.      His motion to dismiss was (1)

premature, and (2) barred by the mandate rule.      Accordingly, we

affirm Santiago-Reyes's sentence, and we remand with instructions

for the district court to address the pending § 2255 motion as

soon as practicable.

                                I.

          We give the background for why the case was remanded for

resentencing. On April 28, 2012, the Puerto Rico Police Department

received a report that three individuals had robbed a home and

fled in a red Toyota Yaris.    Shortly thereafter, two masked men

entered a store, Agrocentro Solá.    One man held the two employees

at gunpoint, while the other grabbed $600 from the cash register.

The men then pushed the employees against the wall, hit one of the

employees in the head, and stole both employees' cellphones and an

additional $300 before fleeing by car.

          Responding to the employee's 9-1-1 call, the police

spotted a red Toyota Yaris nearby and gave chase. When the vehicle


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finally stopped, the officers arrested the three men inside --

including the defendant in this case, Rafael Santiago-Reyes -- and

seized a revolver, two masks, cellphones, and approximately $900

in cash from the car.

             Santiago-Reyes later confessed to the home robbery and

to possessing a weapon during the Agrocentro Solá robbery.                 For

his   role   in    the    Agrocentro   Solá    robbery,   Santiago-Reyes   was

indicted on two counts: (1) interference with commerce by threats

or violence, in violation of 18 U.S.C. § 1951 ("The Hobbs Act");

and (2) carrying a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c).               He pled guilty to

both counts.

             The   plea    agreement    stipulated   that    Santiago-Reyes's

total offense level was 17 (after applying a three-level reduction

for acceptance of responsibility).               Together with a criminal

history category ("CHC") of I, the recommended Guidelines sentence

range ("GSR") was 20-34 months of imprisonment for Count 1, and 66

months of imprisonment for Count 2.

             The district court, however, refused to apply the three-

level reduction at the sentencing hearing, and instead imposed a

two-level enhancement for reckless endangerment during flight, and

another two-level enhancement for obstruction of justice.               Based

on a total offense level of 24, and CHC of I, the applicable GSR

for Count 1 became 51-61 months of imprisonment.                   The judge


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ultimately sentenced Santiago-Reyes to 51 months of imprisonment

for Count 1 and a consecutive 66 months of imprisonment for Count

2.

            In February 2014, Santiago-Reyes appealed his sentence,

arguing that the district court erred in imposing the enhancements,

and   in   refusing   to   grant   the   three-level   reduction   for   his

acceptance of responsibility.1       This court vacated the sentence in

a judgment order, and remanded the case back to the district court

with the following instructions:

            While the record supports application of the
            [reckless    endangerment     during   flight]
            enhancement to Pag[á]n-Bibiloni, who was the
            driver of the vehicle fleeing the scene of the
            robbery, it is not clear whether the
            enhancement may be applied to D[í]az-Cestary
            and Santiago-Reyes, who were passengers in the
            vehicle, without facts establishing they
            "aided or abetted, counseled, commanded,
            induced, procured, or willfully caused"
            reckless endangerment during flight. The
            parties did not raise or brief application of
            the   enhancement    to   D[í]az-Cestary   and
            Santiago-Reyes on this basis, nor did the
            court adequately explain its reasons for
            applying the enhancement to them.          The
            judgment is therefore vacated and this matter
            remanded   for   further   briefing  and,   if
            necessary, factfinding on the issue of
            application of USSG § 3C1.2 (2012) to D[í]az-
            Cestary and Santiago-Reyes.




      1   The district court's calculation of Santiago-Reyes's
sentence was the sole issue of his first appeal.        He never
contested whether a conviction under the Hobbs Act (Count 1)
qualified as a predicate offense under § 924(c) (Count 2).


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United States v. Santiago-Reyes, No. 13-1680 (1st Cir. May 4, 2015)

(judgment     order)   (emphasis   added)     (citations   omitted).

Subsequently, the district court ordered briefing on the reckless-

endangerment enhancement, and concluded that it did not apply to

Santiago-Reyes.    The judge then ordered Santiago-Reyes to appear

for a resentencing hearing on July 26, 2016.

             On July 7, 2016, before the hearing, Santiago-Reyes

filed a pro se motion under 18 U.S.C. § 2255 to vacate Count 2 of

his sentence, arguing that his Hobbs Act conviction (Count 1) could

not serve as a predicate offense for his § 924(c) conviction (Count

2) because the residual clause of that statute -- § 924(c)(3)(B)

-- was void under Johnson, 135 S. Ct. 2551.    A few weeks later, on

July 24, 2016, his counsel filed a motion to dismiss Count 2 of

his conviction on the same grounds.      His counsel conceded that

"the motion is premature (he has not yet been sentenced after his

appeal)."    Counsel also inconsistently argued that "the Johnson

matter is ripe for discussion now before this Honorable Court."

            The district court disagreed during the resentencing

hearing.    The judge refused to consider the Johnson issue because

the matter was not ripe, and Santiago-Reyes's counsel acquiesced:

            MR. MORALES-RAMOS: I understand, Judge, that
            the referral to another case is immature
            because he has not been sentenced yet. So he
            cannot --




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           THE COURT: No, no, no. It's not that he hasn't
           been sentenced yet -- well, it's part of it,
           but it's another case. It's not this case.
           As a matter of fact, it's a civil case.

           MR. MORALES-RAMOS: I understand, Judge.

           THE COURT: So, therefore, I am going to let
           -- and it was referred to a magistrate judge.

           So I am going to allow the Government to
           provide its position and let the magistrate
           judge issue its report and recommendation.
           That's it.

           MR. MORALES-RAMOS: Okay. Our position is in
           the motion we filed.


           The district court then lowered Santiago-Reyes's total

offense level from 24 to 22, and resentenced him to 41 months of

imprisonment for Count 1 (the low end of the GSR) and a consecutive

66 months of imprisonment for Count 2.     At the time of this appeal,

Santiago-Reyes's   § 2255   motion   had   been   stayed   by   agreement

pending the resolution of Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.

2015), cert. granted, 137 S. Ct. 31 (2016) (oral argument Oct. 2,

2017).   The U.S. Supreme Court has yet to issue a decision.        As a

result, the stay is still in effect.

                                 II.

           Santiago-Reyes argues on appeal that the district court

erred in not dismissing his 18 U.S.C. § 924(c) count pursuant to

the Supreme Court's decision in Johnson, 135 S. Ct. 2551.              He

asserts that a conviction under the Hobbs Act is not a "crime of



                                - 6 -
violence" under § 924(c).      But we need not decide whether Johnson

applies here.     The district court did not err in declining to

address,    on   procedural    grounds,    Santiago-Reyes's    motion    to

dismiss.2

            Defendant's counsel conceded in his briefing on the

motion to dismiss that the motion was "premature," and did not

object at the resentencing hearing to the judge's finding that the

motion was not ripe because the Johnson claim was first raised in

a § 2255 motion that was pending.         The coup de grâce to Santiago-

Reyes's argument is that this precise appeal is standing in the

way of finalizing his sentence so that the district court can

consider his § 2255 motion, which has been pending for 14 months.

As such, the district court did not err.

            In any case, consideration of the Johnson issue during

resentencing would have been barred by the mandate rule.                Our

circuit "generally requires that a district court conform with the

remand   order   from   an    appellate    court."    United   States    v.

Ticchiarelli, 171 F.3d 24, 31 (1st Cir. 1999).        "A district court

seeking to determine the scope of remand must therefore consider



     2    The Government argues that either Santiago-Reyes
forfeited his argument, or, in the alternative, plain error review
applies because Santiago-Reyes failed to preserve his objection to
his Johnson claim at the resentencing hearing. Because Santiago-
Reyes's claim fails even under the more favorable abuse of
discretion standard, we will not pass upon whether his claim was,
in fact, waived.


                                   - 7 -
carefully 'both the letter and the spirit of the mandate, taking

into account the appellate court's opinion and the circumstances

it embraces.'"    United States v. Dávila-Félix, 763 F.3d 105, 109

(1st Cir. 2014) (quoting United States v. Genao-Sánchez, 525 F.3d

67, 70 (1st Cir. 2008)).

          Here, the purpose of our limited remand was unequivocal:

to determine whether the reckless-endangerment enhancement applied

to Santiago-Reyes.   And the "letter" of our judgment limited the

district court to elicit "further briefing and, if necessary,

factfinding" to resolve that issue.    Whether Johnson applied fell

far outside the scope of remand, especially because Santiago-Reyes

never raised the issue until his motion to dismiss.

                                III.

          Accordingly, we affirm the district court's resentencing

order and remand the case with instructions for the district court

to conduct a hearing on the pending § 2255 motion as soon as

practicable, after the Supreme Court resolves Dimaya, No. 15-1498

(Oct. 2, 2017).

          So ordered.




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