      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                    For the First Circuit


No. 00-2241

                        UNITED STATES,

                          Appellee,

                              v.

                   DANIEL JOSEPH MARAVILLA,

                    Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Héctor M. Laffitte, U.S. District Judge]


                            Before

                     Selya, Circuit Judge,
               Campbell, Senior Circuit Judge,
                  and Stahl, Circuit Judge.



     Daniel J. Maravilla on brief pro se.
     Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, on brief for appellee.




                        April 6, 2001
             Per Curiam.       Daniel Joseph Maravilla has appealed

 from the district court's denial of his motion to correct

 his sentence pursuant to former Fed. R. Crim. P. 35(a).1                     We

 affirm.

                                         I.

             On September 10, 1982, Maravilla, a United States

 customs    officer,       along    with      Rafael   Dominguez,   a     fellow

 customs officer, kidnaped and murdered a money courier, who

 had     arrived   in   San    Juan      from    the   Dominican    Republic.

 Maravilla and Dominguez stole the approximately $700,000 in

 cash and checks that the courier had intended to deposit in

 a   San   Juan    bank.       As   of     September    10,   Maravilla      and

 Dominguez had less than $100 each in bank accounts.                       Their

 salaries     amounted        to    $34,000      and    $37,000     per     year

 respectively.      However, on the evening of September 10, they

 purchased, with cash, first class plane tickets and flew to

 Miami, carrying a briefcase containing $265,000 in cash.


     1Maravilla was convicted in 1987 for an offense committed in
1982.    Therefore, former Rule 35(a) applicable to offenses
committed prior to November 1, 1987 pertains.          That rule
provided:

           The court may correct an illegal sentence at
           any time and may correct a sentence imposed
           in an illegal manner within the time
           provided   herein  for   the  reduction   of
           sentence.
They paid a friend $12,000 to take $220,000 of the cash to

Panama and deposit it in numbered, unnamed bank accounts.

In the weeks following, they made additional generous bank

deposits,    made    unusually   expensive      purchases    and   gave

generous    gifts.     In   February    1983,    Maravilla    flew   to

Colombia with $53,700 in cash.         When stopped, he claimed not

to know that he was supposed to declare cash, despite the

fact that Maravilla's own customs job involved interviewing

persons who made declarations of cash.           He later told three

different false stories about the origins of this cash.

            Eventually, Maravilla was arrested, tried, and

convicted of depriving an inhabitant of the United States of

his civil rights (in violation of 18 U.S.C. § 242), robbery

(in violation of 18 U.S.C. § 1951(a)), transporting in

interstate commerce more than $5,000 knowing it to have been

stolen (in violation of 18 U.S.C. § 2314), concealing or

disposing of more than $5,000 which has moved in or is a

part of interstate or foreign commerce, knowing it to have

been stolen (in violation of 18 U.S.C. § 2315), lying to the

FBI (in violation of 18 U.S.C. § 1001), and obstruction of

justice (in violation of 18 U.S.C. § 1503).

            On direct appeal, this court reversed Maravilla's

§ 242 conviction, the victim not being an inhabitant of the



                                 -3-
United States.      United States v. Maravilla, 907 F.2d 216

(1st Cir. 1990).    On remand, the district court restructured

the   sentences     on   the   remaining    convictions   to   run

consecutively, rather than concurrently. Maravilla appealed

from his resentencing, arguing that the restructuring was

unconstitutionally vindictive.         We rejected that argument

and affirmed the sentences.     United States v. Dominguez, 951

F.2d 412 (1st Cir. 1991), cert. denied, 504 U.S. 917 (1992).

           Maravilla then began a series of pro se attacks on

his convictions and sentences.        He filed a motion for a new

trial, pursuant to Fed. R. Crim. P. 33.        The district court

denied the new trial motion (a decision that we affirmed on

appeal).    United States v. Maravilla, 7 F.3d 219 (1st Cir.

1993) (per curiam) (TABLE),        cert. denied, 512 U.S. 1219

(1994).    Thereafter, Maravilla moved to vacate his sentence,

pursuant to 28 U.S.C. § 2255.      The district court denied the

§ 2255 motion.     Maravilla v. United States, 901 F. Supp. 62

(D. P.R. 1995).     We affirmed.      Maravilla v. United States,

95 F.3d 1146 (1st Cir. 1996) (per curiam) (TABLE), cert.

denied, 520 U.S. 1202 (1997).          Next, Maravilla filed two

applications in this court, seeking leave to file a second

or successive § 2255 motion in the district court.              We

denied both applications.      Maravilla v. United States, No.



                                -4-
98-8014    (1st   Cir.    Jun.    19,   1998);    Maravilla      v.    United

States, No. 98-8021 (1st Cir. Sept. 8, 1998).

           Then, Maravilla filed a habeas petition, pursuant

to 28 U.S.C. § 2241 in the United States District Court for

the Middle District of Florida.            That habeas petition was

dismissed.    Maravilla v. Parks, No. 99-108-Civ-Oc-10C (M.D.

Fla. Apr. 27, 1999).             Maravilla resubmitted his habeas

petition, but that petition was denied, as an impermissible

attempt to circumvent the requirements imposed on second or

successive § 2255 motions by the Antiterrorism and Effective

Death Penalty Act of 1996 ("AEDPA").               Maravilla v. Parks,

No.   99-231-Civ-Oc-10C      (M.D.      Fla.   Aug.    20,    1999).        The

Eleventh Circuit Court of Appeals affirmed this ruling.

Maravilla v. Parks, 220 F.3d 592 (11th Cir. 2000) (TABLE).

           Most recently, Maravilla filed a motion, pursuant

to former Criminal Rule 35(a), in the United States District

Court for the District of Puerto Rico.                He argued that the

robbery,    transporting     stolen      money,    and       concealing      or

disposing of stolen money counts were multiplicitous and

could not constitutionally support consecutive sentences

under the Double Jeopardy Clause.              He also contended that

his   conviction    and    sentence      for   lying     to    the    FBI    in

violation of 18 U.S.C. § 1001 must be vacated in light of



                                   -5-
 United States v. Gaudin, 515 U.S. 506 (1995), because the

 element of materiality had been determined by the trial

 judge, not the jury.           As noted at the outset, the district

 court denied the Rule 35(a) motion and Maravilla appealed.

                                       II.

               As a threshold matter, Maravilla argues that former

 Rule 35(a), which authorized the district courts to correct

 an       illegal   sentence    "at   any    time,"       see   supra       note    1,

 effectively        permits     him   to   avoid    any    time       bar   or     the

 requirements that AEDPA imposes on second or successive §

 2255      motions.     If     applicable,    former       Rule   35(a)       might

 arguably      also    permit    Maravilla    to    avoid       the    procedural

 default       rules    that      pertain     to      a    §     2255       motion,

 notwithstanding Maravilla's failure previously to raise his

 current claims in a timely fashion either on direct appeal

 or in his first § 2255 motion. 2                  See Callanan v. United

      2
      Maravilla's current claim that his consecutive sentences
for his § 1951(a), § 2314, and § 2315 convictions are
unconstitutional under the Double Jeopardy Clause is similar,
but not identical, to his claim on appeal after resentencing
that    the    restructured    consecutive     sentences    were
unconstitutionally vindictive. See United States v. Dominguez,
951 F.2d at 414-18. Both claims that Maravilla raised in his
motion under former Rule 35(a) motion were first raised in his
application for leave to file a second or successive § 2255
motion, which we rejected on the ground that the issues did not
satisfy   the   statutory   requirements   for   the   requested
authorization.   Maravilla v. United States, No. 98-8014 (1st
Cir. Jun. 19, 1998). Maravilla then sought to raise his current
double jeopardy claim in the habeas petition filed in the

                                       -6-
 States, 364 U.S. 587, 589 n.3 (1961) ("Rule 35 is available

 to correct an illegal sentence when the claim is based on

 the face of the indictment even if such claim had not been

 raised on direct appeal"); United States v. Landrum, 93 F.3d

 122, 125 (4th Cir. 1996) (reciting that the procedural

 default rules applicable to § 2255 motions do not pertain to

 motions brought under former Rule 35(a)).

               With respect to his conviction for lying to the FBI

 in violation of 18 U.S.C. § 1001, former Rule 35(a) is of no

 aid to Maravilla.             "Former Rule 35(a) is limited to the

 correction        of   an     illegal   sentence;    it    does   not    cover

 arguments that the conviction is itself improper, for such

 arguments must be raised under § 2255."                    United States v.

 Canino, 212 F.3d 383, 384 (7th Cir. 2000).                  Notwithstanding

 his attempt to focus on the 5 year consecutive sentence

 imposed, Maravilla's objection is that his conviction under

 §    1001    is   improper     under    Gaudin.      The   district     court,

 therefore, correctly denied Maravilla's Rule 35(a) motion

 with respect to the Gaudin-based claim.

               To the extent that Maravilla seeks to vacate his

 §§    2314    and      2315    convictions,       former   Rule   35(a)    is




federal district court in Florida. See Maravilla v. Parks, No.
99-231-Civ-Oc-10C (M.D. Fla. Aug. 20, 1999).

                                         -7-
unavailable, for the reasons already addressed.                   Maravilla's

filing has some flavor that what he is saying is that he

cannot be constitutionally convicted both of robbery under

the Hobbs Act (§ 1951) and either transporting the stolen

money (§ 2314) and/or concealing or disposing of that stolen

money (§ 2315).     However, Maravilla's filing could also be

read to include a claim that, apart from whether he could be

convicted   under      both    §    1951      and   §    2314    or    §    2315,

constitutionally       he     cannot     be    sentenced        and,       in   the

particulars of this case, sentenced to consecutive terms,

under both § 1951 and § 2314 or § 2315.                 In other words, the

§§ 2314 and 2315 convictions could stand but each 10 year

consecutive term of imprisonment for the §§ 2314 and 2315

convictions must be vacated, leaving only the 20 year term

of imprisonment for the robbery conviction.                      This latter

type of contention conceivably could be an appropriate basis

for review under former Rule 35(a).                     See Hill v. United

States,   368   U.S.    424,       430   (1962)     (remarking         that     the

imposition of multiple terms for the same offense could

constitute an illegal sentence under former Rule 35(a)).




                                     -8-
                                  III.

          Assuming     without    deciding,      that   Maravilla    may

appropriately raise this double jeopardy claim in a motion

under former Rule 35(a) and is not barred from doing so now,

it is nevertheless clear that the claim has no merit.                 We

need not decide whether our review is de novo or for an

abuse of discretion.       Compare United States v. Gruenberg, 53

F.3d   214,   215   (8th   Cir.   1995)   (per    curiam)   (abuse    of

discretion) with United States v. Thompson, 979 F.2d 743,

744 (9th Cir. 1992) (de novo).           There was neither an abuse

of discretion nor an error of law in the district court's

denial of Maravilla's Rule 35(a) motion.

          Maravilla has offered no authority to support his

contention that the offenses of interstate transportation

and concealment/disposing of stolen money merge into the

offense of the interference with commerce by robbery, so as

to bar the imposition of consecutive sentences for these

offenses. Maravilla points to cases that hold that one

cannot be separately punished for stealing property and

receiving that same stolen property.             See, e.g., Heflin v.

United States, 358 U.S. 415, 419-20 (1959) (finding no

congressional intent to punish multiple aspects of the same

criminal act).      But, Maravilla was not convicted of stealing



                                  -9-
 and    receiving   the    same    stolen    money.       Although    he

 characterizes his conduct as a single, if extended, criminal

 act -- he views his criminal conduct as simply the theft of

 money moving in interstate commerce -- he clearly committed

 several discrete criminal acts.

            Maravilla     was    convicted   of     robbing   the   money

 courier    (§   1951),   transporting       that    stolen   money    in

 interstate or foreign commerce (§ 2314) and concealing or

 disposing of money that had moved in or was a part of

 interstate or foreign commerce, knowing that money to have

 been stolen (§ 2315).          Certainly, these statutes pass the

 Blockburger test.        Each offense requires proof of a fact

 which the other does not.        Blockburger v. United States, 284

 U.S. 299, 304 (1932).

            As interfaced with the facts of this case: Section

 1951 requires proof of the obstruction of the movement of

 the courier's cash and checks in commerce, by robbery.3               It

    3Sections 1951(a) and (b), in the version current in 1981,
provided, in pertinent part:

           (a) Whoever in any way or degree obstructs,
           delays, or affects commerce or the movement
           of any article or commodity in commerce, by
           robbery ... shall be fined not more than
           $10,000 or imprisoned not more than twenty
           years, or both.

           (b) As used in this section–


                                   -10-
 does   not      require    proof     that     Maravilla   also   either

 transported       the     money     in      interstate    commerce     or

 concealed/disposed of stolen money that had moved in or was

 part   of    interstate    or    foreign    commerce.     Section    2314

 requires proof that Maravilla had transported the stolen

 money in interstate or foreign commerce, knowing the money

 to have been stolen.4           It does not require that Maravilla,

 himself, steal the money or that he conceal/dispose of the

 money that had moved in or was part of interstate or foreign

 commerce.      And, although Maravilla did, in fact, himself,

 commit the robbery, he did more in "transporting" the stolen

 money in interstate commerce than simply, as he would have

 it, remove it from the courier's possession and carry it

 away from the crime scene.          Section 2315 requires proof that

 Maravilla concealed or disposed of the money that had moved


                  (1) The term "robbery" means the
             unlawful taking or obtaining of personal
             property from the person ... against his
             will, by means of ... violence....
    4Section 2314, in the version current in 1981, provided, in
pertinent part:

                  Whoever transports in interstate or
             foreign commerce any ... securities or
             money, of the value of $5,000 or more,
             knowing the same to have been stolen ...

             Shall be fined not more than $10,000 or
             imprisoned not more than ten years, or both.


                                     -11-
 in or was part of interstate or foreign commerce, knowing it

 to       have    been   stolen. 5      While it does not require that

 Maravilla, himself, steal the money or transport it in

 interstate commerce, Maravilla, did, in fact, steal the

 money and transport it in interstate commerce, and he did

 more       than    simply     remove    the    money   from    the   courier's

 possession and transport it in interstate commerce.

                  The facts of this case evidence discrete criminal

 acts       that     support    separate       convictions     and    sentences.

 Maravilla robbed the money courier (in violation of § 1951);

 later that evening, he transported $265,000 of the stolen

 cash from San Juan to Miami (in violation of § 2314) and

 there paid a friend $12,000 to conceal/dispose of $220,000

 of the stolen cash in numbered, unnamed bank accounts in

 Panama (in violation of § 2315).




      5
     Section 2315, in the version current in 1981, provided, in
pertinent part:

                      Whoever ... conceals ... or disposes of
                 any ... securities, or money of the value of
                 $5,000 or more, ... moving as, or which are
                 a part of, or which constitute interstate or
                 foreign commerce, knowing the same to have
                 been stolen...

                      Shall be fined not more than $10,000 or
                 imprisoned not more than ten years, or both.

                                         -12-
         Contrary to Maravilla's contention, transporting

in interstate commerce stolen money and concealing/disposing

of stolen money that has moved in or is part of interstate

or foreign commerce are not lesser included offenses of

robbery under the Hobbs Act.   There was no double jeopardy

violation in the district court's imposition of consecutive

sentences for these convictions.

         The district court's denial of the motion filed

under former Rule 35(a) is affirmed.




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