          United States Court of Appeals
                     For the First Circuit

No. 09-2325

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      JOSÉ A. GARCÍA-ORTIZ,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel R. Domínguez, U.S. District Judge]


                             Before

                    Boudin, Selya and Lipez,
                         Circuit Judges.



     Rachel Brill on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Chief Appellate Division, and Thomas F. Klumper,
Assistant United States Attorney, on brief for appellee.



                       September 12, 2011
            SELYA, Circuit Judge. Following resentencing, defendant-

appellant   José   A.   García-Ortiz     challenges   his   conviction   and

sentence on one of three counts of conviction on the ground that

the challenged conviction and sentence violate the Double Jeopardy

Clause. He simultaneously challenges his sentence on another count

as unreasonably high, castigating the district court for denying

him a mitigating role adjustment. In a pro se supplementary brief,

he augments this asseverational array by challenging both the

legitimacy of his conviction and the sentencing court's failure to

reduce his sentence based on post-offense rehabilitation.            After

careful consideration, we affirm in part, vacate in part, and

remand for resentencing.

            The background facts, taken in a light consistent with

the jury's verdict, are easily catalogued.            Those who hunger for

more exegetic detail should consult our earlier opinion in this

case.   See United States v. García-Ortiz, 528 F.3d 74, 77-79 (1st

Cir. 2008).

            On   December   9,   2000,     the   defendant    and   several

confederates assaulted and robbed two employees of a food warehouse

in Puerto Rico.     In an ensuing gunfight, one of the robbers was

killed and the defendant himself was wounded.          Later the same day,

local police officers recovered the bullet-ridden car that had been

used by the robbers.     Through DNA analysis, the Federal Bureau of




                                   -2-
Investigation    identified     blood   found   inside   the   car    as   the

defendant's blood.

           Presented with these facts and other evidence, a federal

grand   jury   indicted   the   defendant.      The   operative      charging

document, a superseding indictment handed up on September 3, 2003,

contained three counts.       Count 1 charged the defendant with Hobbs

Act robbery, see 18 U.S.C. § 1951(a); count 2 charged him with

aiding and abetting the unlawful carrying and use of a firearm

during and in relation to the robbery, see id. § 924(c)(1)(A); and

count 3 charged him with aiding and abetting the death of an

accomplice in the commission of an armed robbery, see id. § 924(j).

The defendant maintained his innocence, but a trial jury convicted

him on all three counts.

           The district court originally sentenced the defendant on

May 10, 2006 (the details of that sentence are irrelevant here).

On appeal, we upheld the convictions but vacated the sentence and

remanded for resentencing.       See García-Ortiz, 528 F.3d at 85.

           Once the case had been returned to the district court,

the defendant filed a sentencing memorandum urging, among other

things, downward adjustments for his mitigating role and his post-

offense rehabilitation. He later filed a supplementary memorandum,

arguing that the offense charged in count 2 was a lesser included

offense of that charged in count 3 and that, therefore, sentencing

him independently on count 2 transgressed the Double Jeopardy

Clause.

                                    -3-
                 At a resentencing hearing held on August 13, 2009, the

district court rejected the defendant's lesser included offense

argument, his request for a mitigating role adjustment, and his

request          for   a      reduced    sentence      based     on     post-offense

rehabilitation.            The   court   did,      however,    grant    a   five-level

reduction of the base offense level (from 43 to 38), concluding

that a base offense level of 43 would be too severe in the absence

of any evidence that the defendant intended to kill his accomplice.

When       all   was   said    and   done,    the   court     imposed   a   240-month

incarcerative sentence on count 3, a concurrent 50-month sentence

on count 1, and a consecutive five-year sentence on count 2.1                     The

court repeatedly stated that, in imposing the sentence, it had

evaluated the factors enumerated in 18 U.S.C. § 3553(a).

                 This timely appeal followed.          The defendant's claims of

error are fourfold.            In his counselled brief, he renews his double

jeopardy and mitigating role arguments. Then, in his supplementary

pro se brief, he attempts to attack his conviction frontally and to

reassert his claim of post-offense rehabilitation.2                     We deal with

these claims of error sequentially.


       1
       This consecutive sentence was required by statute. See 18
U.S.C. § 924(c)(1)(D)(ii); see also id. § 924(c)(1)(A) (directing
that punishment for a violation of subsection (c) is to be imposed
"in addition to the punishment provided for" the underlying crime
of violence).
       2
       The pro se brief also reasserts the claim of entitlement to
a mitigating role adjustment, but it adds nothing of substance to
the parallel argument contained in the defendant's counselled
brief.

                                             -4-
           The defendant's principal plaint is that his conviction

and sentence on count 2 violate the Double Jeopardy Clause, U.S.

Const. amend. V, because his conviction on that count is for a

lesser included offense of the crime for which he stands convicted

under count 3.     We review this claim de novo.      See United States v.

Gerhard,   615    F.3d   7,   18   (1st   Cir.   2010);   United   States   v.

DeCologero, 530 F.3d 36, 71 (1st Cir. 2008).

           "[W]henever a defendant is tried for greater and lesser

offenses in the same proceeding . . . neither legislatures nor

courts have found it necessary to impose multiple convictions

. . . ."   Rutledge v. United States, 517 U.S. 292, 307 (1996).

Even so, "[n]ot all multiple punishments run afoul of the Double

Jeopardy Clause."        United States v. Henry, 519 F.3d 68, 72 (1st

Cir. 2008).      Congress may authorize punishment under two separate

statutes, even if those two statutes proscribe the same conduct.

Missouri v. Hunter, 459 U.S. 359, 368-69 (1983); Albernaz v. United

States, 450 U.S. 333, 344 (1981); Whalen v. United States, 445 U.S.

684, 688-89 (1980).

           Here, the elements of section 924(c), collectively, are

elements of section 924(j); that is, a conviction under section

924(j) necessarily includes a finding that the defendant violated

section 924(c).       See 18 U.S.C. § 924(j).         The only meaningful

difference is that section 924(j) requires proof of one additional

fact: the death.     Accordingly, section 924(c) is a lesser included

offense of section 924(j).         See United States v. Flores, 968 F.2d

                                      -5-
1366, 1369, 1371 (1st Cir. 1992). The government now concedes as

much, and the case law amply supports this concession.                See, e.g.,

United States v. Catalán-Roman, 585 F.3d 453, 472 (1st Cir. 2009);

United States v. Jiménez-Torres, 435 F.3d 3, 10 (1st Cir. 2006).

            The analysis, however, does not end there.                    Although

traditionally        legislatures     have      not     authorized    cumulative

punishment for lesser included offenses, see Rutledge, 517 U.S. at

307,   there   is    no    direct   bar    against     such   legislation.       See

Albernaz, 450 U.S. at 344 ("In determining the permissibility of

the imposition of cumulative punishment for the crime of rape and

the crime of unintentional killing in the course of rape, the Court

recognized that the 'dispositive question' was whether Congress

intended to authorize separate punishment for the two crimes."

(quoting Whalen, 445 U.S. at 689)). In other words, Congress could

have   authorized      cumulative     punishments       for   convictions    under

sections 924(c) and 924(j) had it chosen to do so.               See Hunter, 459

U.S. at 366-68. But the plain language of section 924(j) indicates

no such desire.           It follows that, in line with the principles

limned in Rutledge, the conviction and sentence on count 2 must be

annulled.      See    Rutledge,     517    U.S.   at    307   (adhering     to   the

presumption that Congress intends to authorize only one punishment

when a defendant is convicted under two different statutes that

proscribe the same conduct); see also Whalen, 445 U.S. at 691-92

(noting that without a clear indication that Congress intended

cumulative punishments for the same offense under two different

                                          -6-
statutes, courts must presume that Congress authorized only one

punishment).

              We turn next to the defendant's contention that the

sentencing court should have awarded him a two-level reduction in

his offense level for his minor role in the offenses of conviction.

Under the applicable guideline provision, a sentencing court may

reduce a defendant's total offense level by two levels (and thus

lower   his    guideline   sentencing    range)   if   it   finds   that   the

defendant played a minor role in the offense of conviction.                USSG

§3B1.2(b).     A request for a minor role adjustment is addressed to

the sound judgment of the sentencing court, and a defendant who

seeks that balm bears the burden of proving his entitlement to it

by a preponderance of the evidence.        United States v. Vargas, 560

F.3d 45, 50 (1st Cir. 2009).      The essential predicate is a showing

that the defendant is both less culpable than his confederates (or,

at least, most of them) and less culpable than the mine-run of

those who have committed similar crimes.          United States v. Ocasio,

914 F.2d 330, 333 (1st Cir. 1990).

              Recognizing, as we do, that the determination of a

defendant's role is factbound, "we review a district court's

resolution of the facts relative to a minor role adjustment for

clear error, applications of law to those raw facts somewhat less

deferentially, and purely legal questions de novo."           United States

v. Quiñones-Medina, 553 F.3d 19, 22 (1st Cir. 2009).                Absent an

error of law — and we discern none here — the battle over a

                                   -7-
defendant's role in the offense "will almost always be won or lost

in the district court."     United States v. Graciani, 61 F.3d 70, 75

(1st Cir. 1995).

             In this instance, the lower court concluded that the

defendant had not demonstrated an entitlement to a mitigating role

adjustment.     In the court's view, the defendant was a "direct

participant" in the robbery and, as such, did not satisfy either

prong   of    the   test.   The   proof    of   the   defendant's   direct

participation in the robbery and gunfight was quite strong — the

jury's verdict, affirmed on appeal, see García-Ortiz, 528 F.3d at

85, conduces to that view — and the inference drawn by the district

court seems eminently reasonable.        See, e.g., Quiñones-Medina, 553

F.3d at 22-23 (upholding denial of mitigating role adjustment where

facts demonstrated defendant's "full-fledged participation[]" in

commission of crime); United States v. Olivero, 552 F.3d 34, 40-41

(1st Cir. 2009) (similar).

             The defendant reproves the district court for relying on

the presentence investigation report (PSI Report) to lend credence

to its finding that he was a direct participant in the crimes of

conviction.     This attack is easily repulsed.       Where, as here, the

factual account set out in the PSI Report plausibly supports two

different sets of inferences, a sentencing court's choice of one

over the other cannot be deemed clearly erroneous.          United States

v. Prochner, 417 F.3d 54, 66 n.9 (1st Cir. 2005); United States v.

Villarman-Oviedo, 325 F.3d 1, 16 (1st Cir. 2003).

                                   -8-
            To be sure, the defendant attempts to minimize his role

by    comparing    himself    to   the   ringleader       of   the   group.     This

comparison    amounts    to    little      more    than    whistling     past    the

graveyard.        The fact that some other accomplice may be more

culpable than the defendant does not necessarily mean that the

defendant's role in the offense is minor.                  See United States v.

Soto-Beníquez, 356 F.3d 1, 53 (1st Cir. 2004); United States v.

Murphy, 193 F.3d 1, 8-9 (1st Cir. 1999).

            In a related vein, the defendant contends that the

failure of the sentencing court to afford him a mitigating role

adjustment reflects a misapplication of a statute providing that,

in fashioning a sentence, the court shall consider "(1) the nature

and    circumstances     of        the   offense     and       the   history     and

characteristics of the defendant; [and] (2) the need for the

sentence imposed -- (A) to reflect the seriousness of the offense,

to promote respect for the law, and to provide just punishment for

the offense . . . ." 18 U.S.C. § 3553(a).             The defendant maintains

that, in this case, the sum total of these factors compels a

mitigating role adjustment.

            This contention lacks force. The court below stated that

it had thoroughly explored the section 3553(a) factors.                       Such a

statement "is entitled to some weight."              United States v. Dávila-

González, 595 F.3d 42, 49 (1st Cir. 2010).                Here, moreover, it is

evident that the court considered the nature and seriousness of the

offense and the role of the offender.                Viewing the record as a

                                         -9-
whole, we find no clear error in the court's refusal to calibrate

the section 3553(a) factors differently.

           To sum up, the defendant fully assented to sharing the

risks, responsibilities, and rewards of the venture with his

confederates.      The record supports a finding that he played an

active role in the robbery and gunfight.               He was, therefore, not a

minor participant. See United States v. Ocasio-Rivera, 991 F.2d 1,

4 (1st Cir. 1993); Ocasio, 914 F.2d at 333.

           This    brings     us     to    the    arguments       advanced     in    the

defendant's pro se brief.            There, he alleges that this court, in

its earlier opinion, erroneously upheld his conviction.                             This

allegation is hopeless.

           A court of appeals normally does "not review in a second

direct   appeal    an   issue    that      underlies     a    previously      affirmed

conviction."      United States v. Gama-Bastidas, 222 F.3d 779, 784

(10th Cir. 2000).       That general rule applies here.              While taking a

second look at a previously decided issue occasionally may be

justified, see United States v. Bell, 988 F.2d 247, 250-51 (1st

Cir.   1993),   such    an   unusual       step   must       be   predicated    on    an

exceptional circumstance (say, a material change in controlling

legal authority, significant new evidence not earlier obtained in

the exercise of due diligence, or a blatant error in the prior

decision   that    would,       if   uncorrected,        result      in   a    serious

injustice).     Id. at 251.      The defendant has made no showing of any

such exceptional circumstance here.

                                          -10-
           Finally, the defendant contends that the district court

should have reduced his sentence based on his rehabilitation

efforts while incarcerated.        The Supreme Court recently confirmed

that post-offense rehabilitation may, in appropriate circumstances,

constitute a basis for a discretionary sentence reduction.             See

Pepper v. United States, 131 S. Ct. 1229, 1241 (2011).

           To say that such a reduction is theoretically available

is not to say that it is compelled.            The instant claim of post-

offense rehabilitation is not new: the defendant raised the issue

below, and the district court, at least by implication, rejected

it.   We have reviewed the proffered evidence of rehabilitation and

do not find it irresistible.       In the main, judgment calls of this

sort "are for the sentencing court, not for this court."           United

States v. Madera-Ortiz, 637 F.3d 26, 32 (1st Cir. 2011).          So it is

here.

           There is one loose end.         When a defendant successfully

challenges one of several interdependent sentences, the proper

course often is to remand for resentencing on the other (non-

vacated) counts.      See United States v. Pimienta-Redondo, 874 F.2d

9, 14-16 (1st Cir. 1989) (en banc).        This is such a case.   We have

vacated the consecutive sentence (count 2), yet the statutory

requirement    that     a   part    of   the    sentencing   package   run

consecutively, see supra note 1, arguably applies to section 924(j)

(count 3).    See, e.g., United States v. Dinwiddie, 618 F.3d 821,

837 (8th Cir. 2010); United States v. Battle, 289 F.3d 661, 666,

                                    -11-
668-69 (10th Cir. 2002).       In view of these circumstances, we think

it   likely    that   the   district   court   may   wish   to   unbundle   and

reconstitute the sentencing package.            See Pimienta-Redondo, 874

F.2d at 14.      The district court may also wish to ameliorate the

overall sentence in light of the reduced number of counts on which

sentence will be imposed.

              We need go no further. For the reasons elucidated above,

we affirm the defendant's conviction on counts 1 and 3, vacate his

conviction and sentence on count 2, and remand for resentencing on

the two remaining counts.



Affirmed in part, vacated in part, and remanded for resentencing.




                                       -12-
