
<head>

<title>USCA1 Opinion</title>



	<style type="text/css" media="screen, projection, print">



		<!--

		@import url(/css/dflt_styles.css);

		-->

	</style>

</head>

<body>

<p align=center>

</p><br>

<pre>      [NOT FOR PUBLICATION   NOT TO BE CITED AS PRECEDENT] <br>                                 <br>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 97-1422 <br> <br>                    UNITED STATES OF AMERICA, <br>                            Appellee, <br> <br>                                v. <br> <br>                       OSVALDO DIAZ-PABON, <br>                      Defendant, Appellant. <br> <br> <br>No. 97-1423 <br> <br>                    UNITED STATES OF AMERICA, <br>                            Appellee, <br> <br>                                v. <br> <br>                      ANTONIO CRUZ-ARBOLEDA, <br>                      Defendant, Appellant. <br>                                  <br> <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Juan M. Perez-Gimenez, U.S. District Judge] <br> <br>                                            <br> <br>                              Before <br> <br>            Selya, Boudin and Lipez, Circuit Judges. <br>                                 <br>                                 <br> <br> <br>     Rafael F. Castro Lang for appellant Diaz-Pabon. <br>     Eric M. Quetglas Jordan for appellant Cruz-Arboleda. <br>     Mark Irish, Assistant United States Attorney, with whom <br>Guillermo Gil, United States Attorney, Jos A. Quiles-Espinosa, <br>Senior Litigation Counsel, Camille Vlez-Riv, Assistant United <br>States Attorney, and Nelson Prez-Sosa, Assistant United States <br>Attorney, were on brief,for appellee.    <br> <br> <br> <br> <br> <br> <br>AUGUST 20, 1998 <br> <br> <br>

  LIPEZ, Circuit Judge.  Appellants Osvaldo Diaz-Pabon and <br>Antonio Cruz-Arboleda were convicted by a jury of federal offenses <br>stemming from two carjackings and a murder in Puerto Rico, all <br>occurring in 1995.  Challenging the constitutionality and scope of <br>the Anti-Car Theft Act of 1992, 18 U.S.C.  2119, and the refusal <br>of the district court to remove for cause a prospective juror <br>during voir dire, appellants seek to vacate their convictions.  <br>Appellant Diaz-Pabon also appeals his life sentence.  We affirm. <br>                               I. <br>  On October 31, 1995, Carlos Ruben Rivera-Aponte, Osvaldo <br>Diaz-Pabon, and Antonio Cruz-Arboleda met at Rivera-Aponte's <br>apartment, where they hatched a plan to carjack a pharmaceutical <br>delivery truck owned by the J.M. Blanco Company.  The three men <br>left the apartment in Diaz-Pabon's car, expecting to intercept the <br>delivery truck on its regular route.  After observing the delivery <br>truck stopped at a red light, Cruz-Arboleda exited Diaz-Pabon's car <br>and entered the passenger side of the delivery truck with a <br>firearm.  As Rivera-Aponte and Diaz-Pabon followed in the car, <br>Cruz-Arboleda and the J.M. Blanco driver continued traveling in the <br>delivery truck. After stopping briefly on the side of the road to <br>allow Diaz-Pabon to join Cruz-Arboleda in the delivery truck, the <br>two vehicles traveled some distance farther and eventually came to <br>a stop.  Diaz-Pabon and Cruz-Arboleda exited the delivery truck <br>with the driver's personal belongings and money, joined Rivera- <br>Aponte in the car, and returned to Rivera-Aponte's apartment.   <br>  On November 28, 1995, the trio committed a second <br>carjacking of a J.M. Blanco Company delivery truck.  On this date, <br>Diaz-Pabon, Cruz-Arboleda, and Rivera-Aponte once again gathered at <br>Rivera-Aponte's apartment.  According to Rivera-Aponte's testimony <br>at trial, they agreed to go target-shooting together.  As the three <br>men proceeded to the target-shooting location in a station wagon <br>that had been rented by Diaz-Pabon, they observed a J.M. Blanco <br>Company delivery truck stopped at a red light.  After the men <br>followed the delivery truck in the station wagon for some distance, <br>Cruz-Arboleda exited the station wagon and entered the delivery <br>truck with a firearm.  <br>  As Rivera-Aponte and Diaz-Pabon followed in the station <br>wagon, Cruz-Arboleda and the J.M. Blanco driver continued traveling <br>in the delivery truck. After stopping briefly twice   once to allow <br>Rivera-Aponte to join Cruz-Arboleda in the delivery truck    the <br>two vehicles continued traveling.  Eventually both vehicles stopped <br>along the roadside.  Diaz-Pabon, who was still driving the station <br>wagon, informed Rivera-Aponte that a third vehicle was approaching, <br>and that he would continue driving the station wagon and turn <br>around to pick up Rivera-Aponte and Cruz-Arboleda shortly.  <br>  As Rivera-Aponte left the delivery truck to meet Diaz- <br>Pabon, he heard several gunshots.  Returning to the delivery truck, <br>Rivera-Aponte observed the fatally wounded driver lying on the <br>floor of the truck and Cruz-Arboleda gathering money and the <br>driver's personal belongings.  Shortly thereafter, Diaz-Pabon <br>arrived in the station wagon to retrieve Rivera-Aponte and Cruz- <br>Arboleda as agreed.  Following an argument between Rivera-Aponte <br>and Cruz-Arboleda about why Cruz-Arboleda had shot the driver, the <br>trio left the scene and returned to Rivera-Aponte's apartment.  <br>  On January 31, 1996, Rivera-Aponte, Cruz-Arboleda, and <br>Diaz-Pabon each were charged by indictment with two counts of <br>carjacking in violation of the Anti-Car Theft Act of 1992, 18 <br>U.S.C.  2119, and two counts of using or carrying a firearm during <br>a crime of violence in violation of 18 U.S.C.  924(c)(1).  The <br>indictments charged aiding and abetting in addition to direct <br>participation. See 18 U.S.C.  2. The government secured the <br>cooperation of Rivera-Aponte, who entered into a plea agreement and <br>testified at the trial of Cruz-Arboleda and Diaz-Pabon. Both men <br>were found guilty on all counts. <br>                              II. <br>  Citing United States v. Lopez, 514 U.S. 549 (1995), Diaz- <br>Pabon and Cruz-Arboleda contend that 18 U.S.C.  2119, the federal <br>carjacking statute pursuant to which they were convicted, was not <br>a valid exercise of congressional power under the Commerce Clause.  <br>We recently rejected an identical facial challenge to section 2119 <br>in United States v. Rivera-Figueroa, Nos. 96-1112, 1290-92, 1998 WL <br>215809 (1st Cir. May 5, 1998), in which we joined at least seven <br>other circuits by upholding the constitutionality of the statute.  <br>We decline to revisit the issue.  <br>     Diaz-Pabon and Cruz-Arboleda also challenge the <br>constitutionality of section 2119 as applied.  Maintaining that <br>Lopez requires the government to prove that the carjacked vehicles <br>in question had a "substantial effect" on interstate commerce,  <br>appellants contend that the government's evidence   specifically, <br>that the carjacked vehicles were shipped to Puerto Rico from Florida <br>in 1990 and 1991   was insufficient to meet this heightened showing.  <br>Contrary to appellants' premise, however, Lopez did not revise the <br>government's burden of proof on a jurisdictional element in criminal <br>statutes.  Instead, it "identif[ied] the extent to which purely <br>intrastate activities must impact interstate commerce before <br>Congress may legislate under the Commerce Clause."  United Statesv. Cardoza, 129 F.3d 6, 11 (1st Cir. 1997).  Unlike the statute at <br>issue in Lopez, section 2119 contains an express jurisdictional <br>element requiring evidence that a carjacked vehicle was <br>"transported, shipped, or received in interstate or foreign <br>commerce." 18 U.S.C.  2119.  Satisfaction of this jurisdictional <br>element ensures the requisite minimal nexus with interstate commerce <br>required by the Commerce Clause. See Cardoza, 129 F.3d at 11 (citing <br>Scarborough v. United States, 431 U.S. 563 (1977)). The government <br>presented undisputed evidence that the carjacked vehicles had been <br>shipped in interstate commerce, and appellants' as-applied challenge <br>to section 2119 must fail.   <br>     Diaz-Pabon and Cruz-Arboleda also contend that the <br>government failed to present sufficient evidence to prove the <br>"taking" element of section 2119.  See 18 U.S.C.  2119 ("Whoever, <br>with the intent to cause death or serious bodily harm takes a motor <br>vehicle . . . .").  They maintain that the evidence presented by the <br>government established only that they temporarily deprived the <br>victims of the motor vehicles for the sole purpose of stealing money <br>and other valuables contained in the motor vehicles.  They contend <br>such evidence does not satisfy section 2119's taking element.  We <br>disagree.  An intent to deprive the victim permanently of a motor <br>vehicle is not required by the taking element, see United States v. <br>Payne, 83 F.3d 346, 347 (10th Cir. 1996); United States v. Moore, 73 <br>F.3d 666, 668 (6th Cir. 1996), cert. denied, 517 U.S. 1228 (1996), <br>nor is a defendant's motive in taking a motor vehicle relevant to <br>section 2119, see Payne, 83 F.3d at 347; Moore, 73 F.3d at 668; <br>United States v. Harris, 25 F.3d 1275, 1279 (5th Cir. 1994).  Viewed <br>in the light most favorable to the government, see Jackson v. <br>Virginia, 443 U.S. 307, 319 (1979), the evidence was sufficient. <br>                              III. <br>     Diaz-Pabon and Cruz-Arboleda next argue that the district <br>court's erroneous refusal to strike for cause a prospective juror <br>was reversible error because it unfairly forced them to expend one <br>of their ten peremptory challenges, all of which were exercised.  <br>Although restricting a defendant's use of the lawful number of <br>peremptory challenges is reversible error if a challenge for cause <br>is erroneously denied, see United States v. Cambara, 902 F.2d 144, <br>147-48 (1st Cir. 1990)(citing United States v. Rucker, 557 F.2d <br>1046, 1048-49 (4th Cir. 1977)), we must first determine whether the <br>district court erred in failing to remove the prospective juror for <br>cause.  <br>     A district court's ruling on for-cause challenges to <br>prospective jurors is reviewed for a clear abuse of discretion.  SeeUnited States v. Gonzalez-Soberal, 109 F.3d 64, 69-70 (1st Cir. <br>1997); United States v. Bartelho, 71 F.3d 436, 442 (1st Cir. 1995).  <br>"There are few aspects of a jury trial where we would be less <br>inclined to disturb a trial judge's exercise of discretion, absent <br>clear abuse, than in ruling on challenges for cause in the <br>empaneling of a jury."  Gonzalez-Soberal, 109 F.3d at 69-70 (quoting <br>United States v. McCarthy, 961 F.2d 972, 976 (1st Cir. 1992)).   <br>     During the voir dire examination, the district court <br>asked whether any of the prospective jurors or any of the <br>prospective jurors' family members or close personal friends worked <br>or had ever worked for J.M. Blanco Company.  Juror #30, the <br>prospective juror at issue, stated that J.M. Blanco Company was a <br>customer of a company with which he worked, and that he had good <br>friends who worked for J.M. Blanco.  The court then asked juror #30 <br>whether he had been aware of the 1995 carjackings and murder before <br>arriving at court for jury duty.  He responded that he had not.  <br>Later in the voir dire examination, the court asked the entire juror <br>pool whether any one would be unable or unwilling to render a fair <br>and impartial verdict. None of the prospective jurors, including <br>juror #30, responded affirmatively. The court declined to strike for <br>cause juror #30, noting that although he stated that he had friends <br>at J.M. Blanco Company, he nonetheless had not even heard of the <br>1995 carjackings and murder.  Diaz-Pabon and Cruz-Arboleda jointly <br>exercised one of their ten peremptory challenges to remove juror <br>#30.       <br>     Although Diaz-Pabon and Cruz-Arboleda complain that the <br>court failed to examine in sufficient depth the nature of juror <br>#30's prior connection with the J.M. Blanco Company, they did not <br>request any follow-up questions to expand the scope of inquiry <br>concerning juror #30's potential bias.  Moreover, juror #30 did not <br>know the murder victim or any members of the victim's family.  He <br>had no awareness of the carjackings and murder before being summoned <br>for jury duty.  Juror #30 indicated, as did the rest of the juror <br>pool, that he would be able and willing to render a fair and <br>impartial verdict.  In these circumstances, the court acted well <br>within the bounds of its discretion by refusing to remove for cause <br>juror #30.              <br>     Because the district court did not abuse its discretion <br>in ruling on the for-cause challenge, we do not have to address <br>Diaz-Pabon and Cruz-Arboleda's contention that their joint use of <br>a peremptory challenge to remove the prospective juror at issue <br>mandates reversal.  See United States v. Lowe, 145 F.3d 45, 49 (1stCir. 1998). <br>                              IV.  <br>     Diaz-Pabon argues for the first time on appeal that the <br>sentencing court should have departed downwards from the sentencing <br>guidelines pursuant to U.S.S.G.  2A1.1's Application Note 1. In <br>imposing Diaz-Pabon's life sentence, the court applied section <br>2A1.1, the first-degree murder guideline.  Section 2A1.1 applies to, <br>inter alia, the sentencing of perpetrators of certain felonies in <br>which death resulted. See U.S.S.G.  2A1.1 comment. (n.1); see alsoid.  2B3.1(c). Application Note 1 of section 2A1.1 states, however, <br>that "[l]ife imprisonment is not necessarily appropriate in all <br>situations," and that "[i]f the defendant did not cause the death <br>intentionally or knowingly, a downward departure may be warranted. <br>. . ."  Id.  2A1.1 comment. (n.1).  Relying on the preceding <br>provision from Application Note 1, Diaz-Pabon argues that the <br>evidence established that he did not intentionally cause the <br>delivery truck driver's death, and the sentencing court therefore <br>should have departed downwards from section 2A1.1's guideline of <br>life imprisonment.          <br>     Although the government contends that the district court <br>did consider section 2A1.1's application note when sentencing Diaz- <br>Pabon, we find that the record is ambiguous on this point.  It is <br>clear, however, that Diaz-Pabon never asked the court to consider <br>a downward departure pursuant to the application note. "[A]rguments <br>not squarely presented to the sentencing court cannot debut as of <br>right in an appellate venue," United States v. Martinez-Martinez, <br>69 F.3d 1215, 1225 (1st Cir. 1995) (quoting United States v. Piper, <br>35 F.3d 611, 620 n.6 (1st Cir. 1994)), cert. denied, 517 U.S. 1115 <br>(1996), and Diaz-Pabon's unpreserved legal claim is deemed waived. <br>See id.     <br>     Even if Diaz-Pabon had sought a departure in the district <br>court on the basis of section 2A1.1's application note, we would be <br>without jurisdiction to review the court's discretionary decision <br>to reject that request.  See id.; 18 U.S.C.  3742(e),(f). An <br>appellate court generally lacks jurisdiction to review a sentencing <br>court's discretionary decision not to depart below the guideline <br>sentencing range. See United States v. Mangos, 134 F.3d 460, 465 <br>(1st Cir. 1998).  There is an exception to this general rule when <br>the decision not to depart is based on the sentencing court's <br>erroneous belief that it lacks the authority to depart.  See id.  <br>There is nothing in the record, however, to suggest that the <br>sentencing court believed that it lacked the authority to depart. <br>To the contrary, the court stated at the sentencing hearing that it <br>"consider[ed] the fact that this defendant did not do the actual <br>shooting," but that it nonetheless believed a life sentence was <br>appropriate.  In these circumstances, we are without jurisdiction <br>to review the court's discretionary decision not to depart from the <br>sentencing guidelines.   <br>     Diaz-Pabon seeks to avoid the statutory limitations on <br>our jurisdiction by contending that the sentencing court <br>"incorrectly applied" the guidelines.  See 18 U.S.C.  3742(e)(2) <br>(authorizing a court of appeals to review a sentence which was <br>"imposed as a result of an incorrect application of the sentencing <br>guidelines").  He relies on the following provision set forth in <br>Application Note 1: <br>     If the defendant did not cause the death <br>     intentionally or knowingly, a downward <br>     departure may be warranted.  The extent of the <br>     departure should be based on the defendant's <br>     state of mind (e.g., recklessness or <br>     negligence), the degree of risk inherent in <br>     the conduct, and the nature of the underlying <br>     offense conduct. . . . <br> <br>U.S.S.G.  2A1.1 comment. (n.1)(emphasis added). This provision, he <br>contends, requires the sentencing court to engage in an analysis of <br>the factors listed therein when imposing a sentence for a death that <br>was caused unintentionally or unknowingly, and that the sentencing <br>court's failure to do so expressly constituted a misapplication of <br>the guidelines.  We do not agree.  The provision at issue simply <br>directs that the extent of a departure   not the decision to depart <br>itself    should be guided by factors listed therein. The sentencing <br>court was under no duty to analyze the factors set forth in <br>Application Note 1 to justify its discretionary decision not to <br>depart from the guidelines, and we find no merit in Diaz-Pabon's <br>contention that the court applied the guidelines incorrectly.  <br>                               V. <br>     Finally, Diaz-Pabon contends that he was deprived of the <br>effective assistance of counsel during the sentencing phase of his <br>trial because his trial counsel did not ask the court to consider <br>a downward departure on the basis of U.S.S.G.  2A1.1's Application <br>Note 1. We will not consider an ineffective assistance of counsel <br>claim on direct appeal unless the record is sufficiently developed <br>to permit review of the claim.  See Martinez-Martinez, 69 F.3d at <br>1225.  The proper route for such claims is through a collateral <br>proceeding in district court pursuant to 28 U.S.C.  2255. Such a <br>proceeding permits the development of the evidentiary record usually <br>required by ineffective assistance of counsel claims.  See United <br>States v. Caggiano, 899 F.2d 99, 100 (1st Cir. 1990).  Diaz-Pabon's <br>ineffective assistance of counsel claim implicates matters beyond <br>the record in this proceeding.   We decline to consider the claim <br>on direct appeal.  See Martinez-Martinez, 69 F.3d at 1225.   <br>     The judgments of the district court are affirmed.</pre>

</body>

</html>

