          United States Court of Appeals
                      For the First Circuit


No. 16-1405

                    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

                  Thompson, Kayatta, and Barron,
                          Circuit Judges.


     Rachel Brill for appellant.
     John P. Taddei, with whom Margaret A. Upshaw, Attorney, United
States Department of Justice, and Rosa Emilia Rodríguez-Vélez,
United States Attorney, were on brief, for appellee.


                        September 17, 2018
            KAYATTA, Circuit Judge.     In his fourth time before our

court, defendant-appellant José García–Ortiz ("García") asks us to

vacate one of his convictions stemming from an armed robbery

committed in Puerto Rico in the year 2000.        He argues that his

conviction for felony murder under 18 U.S.C. § 924(j) must be

vacated because armed robbery committed in violation of the Hobbs

Act, 18 U.S.C. § 1951, does not qualify as a "crime of violence"

under 18 U.S.C. § 924(c).     He also disputes the imposition of a

restitution order and raises other issues outside the scope of

this court's limited remand in United States v. García-Ortiz, 792

F.3d 184, 186 (1st Cir. 2015) ("García III").       For the following

reasons, we affirm García's conviction and sentence.

                                 I.

            As we detailed in United States v. García-Ortiz, 528

F.3d 74 (1st Cir. 2008) ("García I"), García participated in the

armed robbery of a grocery store manager and his security guard

escort as they were delivering around $63,000 in cash to a bank.

Id. at 77.     During an exchange of gunfire in the course of the

robbery, the security guard shot and killed one of García's

collaborators.    Id.   In 2004, a jury convicted García of aiding

and abetting a Hobbs Act robbery (count one),1 aiding and abetting

the use or carrying of a firearm during and in relation to a crime




     1   In violation of 18 U.S.C. §§ 2, 1951(a), (b)(1).


                                - 2 -
of violence (count two),2 and aiding and abetting felony murder in

the course of using or carrying a firearm in relation to a crime

of violence (count three).3 Id. at 78-79.

              In García I, we remanded the case back to the district

court so that it could modify an erroneous life sentence imposed

for count one, for which the statutory maximum was twenty years.

Id. at 85.         After resentencing, García appealed again.     We then

reversed on double jeopardy grounds the conviction on count two

(aiding and abetting the use or carrying of a firearm during and

in relation to a crime of violence, in violation of 18 U.S.C. §§ 2,

924(c)(1)(A)) because that count was a lesser included part of

count three.         United States v. García-Ortiz, 657 F.3d 25, 28–29

(1st       Cir.    2011)    ("García II").     In   García's    subsequent

resentencing, the district court imposed, for the first time, a

restitution order.         García appealed again, challenging among other

things the imposition of the restitution order.            García III, 792

F.3d at 188–94.        We affirmed García's convictions and sentences on

the remaining counts (one and three).          We nevertheless ordered a

limited remand of "only the restitution portion of his sentence"

because      the     district   court   had   mistakenly   "continued"   a

restitution order that it had neglected to impose in the first

instance.         Id. at 186, 192.   On remand following Garcia III, the


       2   In violation of 18 U.S.C. §§ 2, 924(c)(1)(A).
       3   In violation of 18 U.S.C. §§ 2, 924(j).


                                     - 3 -
district court formally imposed a restitution order for $30,000,

a reduction from the initial order of $60,000.

             At    present,   García    stands     convicted   of   aiding    and

abetting a robbery committed in violation of the Hobbs Act, 18

U.S.C. § 1951(a) (count one) and aiding and abetting felony murder

in the course of using or carrying a firearm in relation to a crime

of violence, in violation of 18 U.S.C. §§ 2, 924(j) (count three).

His current sentence consists of 36 months' imprisonment for count

one to run consecutively with a 216-month term for count three,

plus $30,000 in restitution.

             García raises several issues in this most recent appeal.

Claiming a change in controlling law since we decided his third

appeal, he first urges us to find unconstitutionally vague the so-

called "residual clause" of 18 U.S.C. § 924(c)(3)(B).               That clause

treats as a "crime of violence" any felony offense "that by its

nature, involves a substantial risk that physical force against

the person or property of another may be used in the course of

committing        the   offense."         García     reasons    that      because

section 924(c)'s residual clause is unconstitutional, and because

his Hobbs Act robbery conviction does not alternatively qualify as

a "crime of violence" under 18 U.S.C. § 924(c)(3)(A)'s so-called

"force clause," his felony murder conviction, which relies on

section 924(c)'s        definition   of   "crime    of   violence,"    must    be

vacated.          Second,   García     argues    that    the   district     court


                                       - 4 -
impermissibly imposed the restitution order to punish him for his

success on appeal.         Finally, in an effort to resuscitate and

reconstitute arguments from previous appeals, García also argues

that the district court should have considered an amendment to the

United      States   Sentencing   Guidelines       (the    "Guidelines")       when

considering whether to apply a mitigating role adjustment, and

should not have imposed the terms of imprisonment consecutively

for counts one and three.          For the following reasons, we reject

each   of    these   arguments    and    affirm    García's   convictions      and

sentence.

                                         II.

                                         A.

              García's   conviction      for    felony   murder   rests   on   the

proposition that his offense that led to a death -- armed robbery

in violation of the Hobbs Act -- is a "crime of violence" under

section 924(c).       At the time of García's conviction, there was

apparently little reason to doubt that such an offense satisfied

the definition of a crime of violence contained in the residual

clause of section 924(c), as García raised no objection in this

vein in any of his prior appeals.                 García now points to two

subsequent decisions of the United States Supreme Court, Johnson

v. United States, 135 S. Ct. 2551 (2015) ("Johnson II") and

Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which García claims




                                        - 5 -
compel the conclusion that section 924(c)'s residual clause is

unconstitutionally vague.

          We usually do not entertain on a subsequent appeal issues

that exceed the scope of our remand mandate.            See United States v.

Wallace, 573 F.3d 82, 88 (1st Cir. 2009).                  Nevertheless, we

recognize an exception when the controlling law materially changes

after the case is remanded.      Id. at 89.      We will assume that Dimaya

and Johnson II brought about such a change.

          Overcoming the limited scope of our remand mandate still

leaves García with another procedural hurdle:               His failure to

timely raise before the district court his argument that Hobbs Act

robbery   does   not     qualify    under     the    residual     clause   of

section 924(c)(3) would normally constitute a forfeiture, limiting

us to plain error review.       In similar circumstances, however, we

recently overlooked such a forfeiture where, as here, a defendant

failed to anticipate the Supreme Court overruling itself on a

constitutional principle.       See Lassend v. United States, 898 F.3d

115, 122 (1st Cir. 2018) (noting that Johnson II "expressly

overruled" two prior Supreme Court cases "in relation to the [Armed

Career Criminal Act]").

          Turning   to    the   merits,     we   find    that   any   possible

infirmity of section 924(c)'s residual clause provides García with

no exculpation because his Hobbs Act robbery still qualifies as a




                                   - 6 -
crime of violence under the force clause of section 924(c).       Our

reasoning for finding the force clause satisfied follows.

          The parties agree that García's conviction concerned

Hobbs Act robbery (not extortion).      So, our task at the outset is

to compare the statutory language describing the elements of Hobbs

Act robbery to the definition of a "crime of violence" in the force

clause, section 924(c)(3)(A).     See United States v. Faust, 853

F.3d 39, 50–51 (1st Cir.), reh'g denied, 869 F.3d 11 (1st Cir.

2017) (describing this categorical approach).     The relevant Hobbs

Act language states:

          Whoever in any way or degree obstructs,
          delays, or affects commerce or the movement of
          any article or commodity in commerce, by
          robbery or extortion or attempts or conspires
          so to do, or commits or threatens physical
          violence to any person or property in
          furtherance of a plan or purpose to do
          anything in violation of this section shall
          [be fined or imprisoned.]

18 U.S.C. § 1951(a).   The term "robbery" means:

          [T]he unlawful taking or obtaining of personal
          property from the person or in the presence of
          another, against his will, by means of actual
          or threatened force, or violence, or fear of
          injury, immediate or future, to his person or
          property, or property in his custody or
          possession, or the person or property of a
          relative or member of his family or of anyone
          in his company at the time of the taking or
          obtaining.

Id. § 1951(b)(1) (emphasis added).       The force clause, in turn,

defines a "crime of violence" as "an offense that is a felony



                                - 7 -
and . . . has as an element the use, attempted use, or threatened

use of physical force against the person or property of another."

Id. § 924(c)(3)(A).

          It would seem that the "actual or threatened force, or

violence, or fear of injury" required as an element of the robbery

offense satisfies the "use, attempted use, or threatened use of

physical force" element of the definition of a crime of violence

as long as we construe robbery's "force, or violence, or fear of

injury" as requiring the use or threat of "physical force." García

advocates against such a construction.          He points out that the

required "physical force" need be "violent force," Johnson v.

United States, 559 U.S. 133, 140 (2010) (Johnson I). As an example

of a robbery without such force, he posits that a person can commit

Hobbs Act robbery by threatening to "devalue some intangible

economic interest like a stock holding or contract right."        This,

however, sounds to us like Hobbs Act extortion.4      García points to

no   actual   convictions   for   Hobbs   Act    robbery   matching   or

approximating his theorized scenario.      And the Supreme Court has

counseled that we need not consider a theorized scenario unless

there is a "realistic probability" that courts would apply the law




     4"[T]he obtaining of property from another, with his consent,
induced by wrongful use of actual or threatened force, violence,
or fear, or under color of official right."             18 U.S.C.
§ 1951(b)(2).


                                  - 8 -
to find an offense in such a scenario.      See Gonzales v. Duenas-

Alvarez, 549 U.S. 183, 193 (2007).

           We also find ourselves unpersuaded that a threat to

devalue an intangible economic interest constitutes the type of

"injury" described in the Hobbs Act's robbery provision -- "by

means of actual or threatened force, or violence, or fear of

injury."   18 U.S.C. § 1951(b)(1).     Cf. United States v. Melgar-

Cabrera, 892 F.3d 1053, 1066 (10th Cir. 2018) (putting someone in

"fear of injury" requires the threatened use of physical force).

Applying the canon of noscitur a sociis, the "fear of injury"

contemplated by the statute must be like the "force" or "violence"

described in the clauses preceding it. See Yates v. United States,

135 S. Ct. 1074, 1085 (2015) (stating that canon as "a word is

known by the company it keeps").         This reading and García's

inability to point to any convictions for Hobbs Act robbery based

upon threats to devalue intangible property convince us that Hobbs

Act robbery, even when based upon a threat of injury to property,

requires a threat of the kind of force described in Johnson I,

that is, "violent force . . . capable of causing physical pain or

injury."   559 U.S. at 140.

           We likewise reject García's related claim that Hobbs Act

robbery can be committed with a degree of force against a person

falling short of "violent" force.      To support this claim, García

imagines a scenario in which a culprit threatens to poison someone,


                               - 9 -
and claims that such an action would not involve the use or

threatened use of violent force.   But a threat to poison someone

involves the threatened use of force capable of causing physical

injury, and thus does involve violent force.   See United States v.

Edwards, 857 F.3d 420, 427 (1st Cir.), cert. denied, 138 S. Ct.

283 (2017) (suggesting that the knowing use of poison to cause

physical harm involves physical force satisfying Johnson I).     A

threat to poison another imposes a "fear of injury," 18 U.S.C.

§ 1951(b)(1), to one's person, and Johnson I short-circuits any

argument that placing someone in fear of bodily injury does not

involve the use of physical force, if "force" encapsulates the

concept of causing or threatening to cause bodily injury.      559

U.S. at 140; cf. United States v. Castleman, 134 S. Ct. 1405, 1417

(2014) (Scalia, J., concurring in part and concurring in judgment)

(rejecting the argument that Johnson I "requires force capable of

inflicting 'serious' bodily injury," as opposed simply to "force

capable of causing physical pain or injury, serious or otherwise").

          García also posits that perhaps the threat of injury

under a Hobbs Act robbery prosecution might take the form of

threatening to withhold medication from the victim, or threatening

to lock a person up in a car on a hot day. But he fails to identify

any convictions, or even prosecutions, matching these scenarios,

nor do they strike us as realistically probable.   See Edwards, 857




                              - 10 -
F.3d at 427 (noting the need for a realistic probability of

hypothetical conviction, rather than mere "imaginative thinking").

               García next argues that the offense of Hobbs Act robbery

does not require as an element the "intentional threat of physical

force,"      so   it   fails   to   satisfy   the   mens    rea   required   under

section 924's force clause.             We have previously rejected similar

arguments.        In United States v. Ellison, the defendant argued that

his conviction for federal bank robbery was not a "crime of

violence" under the force clause of Guidelines section 4B1.2(a)

(the "career offender guideline") because a conviction under the

bank robbery statute5 could be founded upon "intimidation" that

the culprit did not intend -- that is, it could be founded merely

upon       behavior    a   reasonable   person   would     have   experienced   as

intimidating.          866 F.3d 32, 38 (1st Cir. 2017).             We said that

because the federal bank robbery statute does require general

intent, i.e., knowledge on the part of the defendant that his

actions were objectively intimidating, it "has as an element the


       5   18 U.S.C. § 2113(a), which reads:
               Whoever, by force and violence, or by
               intimidation, takes, or attempts to take, from
               the person or presence of another, or obtains
               or attempts to obtain by extortion any
               property or money or any other thing of value
               belonging to, or in the care, custody,
               control, management, or possession of, any
               bank, credit union, or any savings and loan
               association . . . [s]hall be fined under this
               title or imprisoned not more than twenty
               years, or both.


                                        - 11 -
use, attempted use, or threatened use of physical force against

the person of another," U.S.S.G. § 4B1.2(a), such that a conviction

for federal bank robbery satisfies the mens rea component of the

career offender guideline's force clause.        Id. at 38–40; see also

United States v. Frates, 896 F.3d 93, 99 (1st Cir. 2018); cf.

Carter   v.   United   States,    530     U.S.   255,   268–70   (2000)

(characterizing the offense under the federal bank robbery statute

as a general intent crime, i.e., one requiring proof of knowledge

of the actus reus).

          The elements of Hobbs Act robbery similarly include "an

implicit mens rea element of general intent -- or knowledge -- as

to the actus reus of the offense."      Frates, 896 F.3d at 98 (quoting

Ellison, 866 F.3d at 39); see also United States v. Tobias, 33 F.

App'x 547, 549 (2d Cir. 2002) (summary order) (observing that the

term "robbery," as in 18 U.S.C. § 1951, "implies knowing and

willful conduct"); United States v. Gray, 260 F.3d 1267, 1283 (11th

Cir. 2001) (noting that circuit precedent suggested a "knowing"

mens rea standard for Hobbs Act robbery and rejected a requirement

of specific intent to commit the crime); United States v. Du Bo,

186 F.3d 1177, 1179 (9th Cir. 1999) (knowing or willing conduct is

an "implied and necessary element" of Hobbs Act robbery).            We

therefore reject any contention by García that the mens rea

required to commit Hobbs Act robbery is less than that required to




                                 - 12 -
constitute the "use, attempted use, or threatened use of physical

force."   18 U.S.C. § 924(c)(3)(A).

           In a supplemental pro se brief, García next argues that

a conviction for aiding and abetting a Hobbs Act robbery cannot

categorically constitute a "crime of violence" under section 924's

force clause because a defendant can be convicted of aiding and

abetting the crime "even when he has not personally committed all

the acts constituting the elements of the substantive crime aided."

United States v. Sosa, 777 F.3d 1279, 1293 (11th Cir. 2015)

(quoting United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir.

2004)).   This argument simply states the mandate of 18 U.S.C. § 2,

which makes an aider and abettor "punishable as a principal," and

thus no different for purposes of the categorical approach than

one who commits the substantive offense.       See Lassend, 898 F.3d at

132-33.

           Having rejected García's arguments, we therefore hold

that because the offense of Hobbs Act robbery has as an element

the use or threatened use of physical force capable of causing

injury to a person or property, a conviction for Hobbs Act robbery

categorically      constitutes   a    "crime    of     violence"    under

section 924(c)'s    force   clause.   We   therefore    affirm   García's

conviction under 18 U.S.C. § 924(j).




                                 - 13 -
                                             B.

               The foregoing conclusion also largely resolves García's

challenge      to   his    restitution        order.      The    Mandatory    Victim

Restitution      Act,     18    U.S.C.     § 3663A(c)(1)(A)(i),        required    the

district court to impose such an order once García was convicted

of any "crime of violence" as defined in 18 U.S.C. § 16.                     For the

same reasons we conclude that Hobbs Act robbery qualifies as a

"crime    of    violence"       under      section 924(c)'s      force   clause,    we

conclude that Hobbs Act robbery also qualifies as a "crime of

violence" under section 16(a)'s force clause, which similarly

defines "crime of violence" as "an offense that has as an element

the use, attempted use, or threatened use of physical force against

the person or property of another."                 18 U.S.C. § 16(a).     The only

difference      between        the   two   provisions    is     that   section 924's

definition requires that the crime be a felony, while section 16(a)

requires only "an offense," and this minor difference does not

alter our conclusion because Hobbs Act robbery is certainly a

felony.

               García's claim that the restitution was a "punitive"

response to his successful appeal is twice mistaken:                     Restitution

is mandatory under section 3663A, which states that the district

court "shall order . . . restitution" for convictions for crimes

of violence, 18 U.S.C. § 3663A(a)(1), and García offers no specific

allegation, beyond mere assertion, of an improper motive by the


                                           - 14 -
district court.          Moreover, he does not challenge the amount of

restitution required or any other aspect of the order; he just

challenges the fact of its existence.                      Without passing on the

details     or   amount        of    the    restitution         order,   which    remain

unchallenged, we cannot say, under any standard of review, that

the district court erred in ordering restitution as required by

Congress.

                                             C.

            García next argues that Amendment 794 to the Guidelines,

which   modified      the      application        notes   for     Guidelines     § 3B1.2

(authorizing reductions for a defendant's mitigating role in the

offense) and which came into effect in 2015 after García III,

should have caused the district court to "award[] a reduction" in

his Guidelines calculation.                While recognizing the limited nature

of the remand in García III, García argued below and suggests now

that    Amendment     794's         adjustments     to    the    commentary      for   the

mitigating-role reduction constituted a significant change in

controlling      legal    authority         permitting     the    district     court   to

recalculate García's offense level, even though consideration of

the issue exceeded the scope of remand. See United States v. Bell,

988 F.2d 247, 250-51 (1st Cir. 1993) (a district court may, in its

discretion, go beyond the mandate on remand when a party shows a

dramatic     change       in        controlling     legal       authority,       unearths

significant new evidence previously unavailable, or convinces the


                                           - 15 -
court that blatant error left uncorrected will perpetuate a serious

injustice).   The district court recognized that it had "a mandate

as to only one aspect [of García's sentence]," as this court had

"already affirmed [the] other part of the decision" and "sent this

case to [the district court] only for restitution purposes."            It

nonetheless stated that even if it were to "consider[] the downward

departure for a minor [role in the offense]," it would "deem[]

that this case does not warrant that."       The district court found

no reason to impose the minor-role reduction because, as the court

noted on the record, there was no dispute that García participated

in the crime, the crime resulted in a death, García sustained a

bullet wound in his back, and no co-defendants were arrested or

charged   against   which   García's   relative   culpability   could   be

compared.   We therefore need not decide whether the district court

erred in treating the modification of the Guidelines commentary

for section 3B1.2 as failing to rise to the level of a "dramatic"

change in controlling legal authority.        Any error was harmless.

See generally United States v. Tavares, 705 F.3d 4, 25–26 (1st

Cir. 2013) (applying harmless error analysis to procedural error

in Guidelines range calculation).




                                 - 16 -
                                        D.

             Finally, we dispose of García's argument that the terms

of    imprisonment    for   counts    one      and   three   should   have   run

concurrently, rather than consecutively.              We already decided this

issue in García III and affirmed the concurrent imposition of his

sentences.     792 F.3d at 193–94.           In García III we noted that the

district court understood that it possessed the discretion to

impose the sentences for counts one and three concurrently or

consecutively, and so exercised this discretion. Id. And we noted

that García failed to identify any authority for the notion that

the district court was required to impose concurrent sentences.

Id. at 194.

             García identifies no reason to depart from the law of

the    case;   he    references   "no        newly   discovered   evidence   or

intervening legal authority that requires us to reconsider, and

there can be no credible claim that our failure to do so would

work a manifest injustice in this case." United States v. Wallace,

573 F.3d 82, 92 (1st Cir. 2009) (internal quotation marks omitted).

We therefore affirm our own prior determination that the district

court was within its discretion to impose consecutive sentences

for counts one and three.

                                      III.

             We affirm the convictions and sentence imposed.




                                     - 17 -
