United States of America v. Jorge Lorenzo-Hernández

United States Court of Appeals
For the First Circuit
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No. 01-1351
UNITED STATES OF AMERICA,
Appellee,
v.
JORGE LORENZO-HERNÁNDEZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
____________________
Before
Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
____________________
Bruce J. McGiverin for appellant.
Thomas F. Klumper, Assistant United States Attorney, with whom
Jorge E. Vega-Pacheco, Assistant United States Attorney, and
Guillermo Gil, United States Attorney, were on brief for appellee.
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February 1, 2002
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LYNCH, Circuit Judge. This appeal is from a sentence entered
after a remand for resentencing following this court's vacating of one
count of conviction. United States v. Peña-Lora, 225 F.3d 17 (1st Cir.
2000). There are two issues of note. The first is whether we will
entertain the government's argument, made for the first time on appeal,
that the law of the case doctrine bound the district court not to
reconsider its earlier resolution of a sentencing issue, and therefore
that the defendant was not free to raise this argument the second time
around. The second is the defendant's argument that he is ineligible
for the sentencing enhancement in kidnapping cases where the victim is
not released within seven days. See U.S.S.G. § 2A4.1(b)(4)(B) (2000).
Not surprisingly, we reject both arguments.
On May 1, 1998, Jorge Lorenzo-Hernández was found guilty
following a jury trial of conspiring to commit a hostage taking for
ransom (Count One), 18 U.S.C. § 1203(a) (2000), aiding and abetting a
hostage taking (Count Two), id., and using and carrying a firearm in
relation to the hostage taking in violation of 18 U.S.C. § 924(c)(1)
(2000) (Count Five). He was sentenced to 135 months in prison for
Counts One and Two respectively, to be served concurrently, and 360
months in prison for Count Five, to be served consecutively to Counts
One and Two. Lorenzo-Hernández appealed the convictions on all three
counts, contesting the sufficiency of the evidence.

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On September 1, 2000, this court affirmed Lorenzo-Hernández's
convictions on the hostage-taking counts, set aside the conviction on
the firearm count, Count Five, for insufficiency of evidence, and
remanded to the district court for resentencing on Counts One and Two.
Peña-Lora, 225 F.3d at 26-29. On remand, the district court heard
argument and again sentenced Lorenzo-Hernández to 135 months in prison
for each of Counts One and Two, to be served concurrently. Lorenzo-
Hernández now appeals this sentence. He argues that the district court
improperly enhanced his sentence based on U.S.S.G. § 2A4.1(b)(4)(B),
which provides for a one-level enhancement for a kidnapping in which
the "victim was not released before seven days had elapsed." He says
that because the evidence shows that he only joined the hostage taking
five days before the victim was rescued, the one-level enhancement
should not apply to him. We affirm the district court's sentence.
I.
On August 15, 1997, Lorenzo Peña-Morfe, Lorenzo-Hernández's
co-defendant, and a person named "Charlie" abducted Richardson Leo
Mieses-Pimentel at gunpoint. Mieses-Pimentel was twenty-six years old,
and was the manager of the Cache Liquor Store, one of the businesses
owned by his brother. The victim, restrained in handcuffs and with a
hood over his head, was taken to a private residence and held for a
$500,000 ransom. He was held in captivity for ten days before he was

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rescued by the FBI. In addition to Peña-Morfe and "Charlie," there
were several other conspirators involved. The coconspirators were
Tomás Lorenzo-Pérez (the father of the defendant Lorenzo-Hernández),
Luis Manuel Peña-Lora, Santiago Acosta-Molina, Clecencio Martinez-
Correa, Amable Nolzaco-Morla, and Raimary Lavandier (the wife of
Lorenzo-Hernández). Throughout the abduction, Mieses-Pimentel was
handcuffed, blindfolded, and gagged; at times he was kept in a bathtub.
Periodically throughout the abduction, the kidnappers made telephone
calls to Mieses-Pimentel's brother and uncle demanding ransom and
threatening to kill Mieses-Pimentel.
Mieses-Pimentel was first held in one place for three days
by Peña-Morfe, Lorenzo-Pérez (the father), Peña-Lora and "Charlie."
The kidnappers, fearing that the victim might be located by
authorities, recruited Acosta-Molina. Mieses-Pimentel was then
transferred to Acosta-Molina's home, a place the kidnappers thought
would be harder for the authorities to discover.
On August 20, 1997, Mieses-Pimentel was again moved, this
time to a home in Barrio Obrero where Lorenzo-Hernández lived with his
wife Raimary Lavandier. As of August 20, Mieses-Pimentel had been a
hostage for five days. Mieses-Pimentel was chained to a bed in a
bedroom at the rear of the house, handcuffed, and blindfolded with duct
tape. On August 20, the victim's brother received seven telephone calls
from the kidnappers in which they threatened him that this would be

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the last day on which he could pay the ransom before they resorted to
killing Mieses-Pimentel.
On August 25, 1997, under questioning from the FBI, Peña-
Morfe admitted to his role, and led the FBI to the Lorenzo-Hernández
residence. On the same day, a FBI SWAT team surrounded the residence,
announced its presence, and ordered the occupants of the house to
leave. At this point, Lorenzo-Hernández came to the room in which
Mieses-Pimentel was held, unchained him from the bed, removed the
blindfold and the handcuffs, escorted him into another room, and told
him to act like he was part of the group. Apparently, Lorenzo-
Hernández hoped to bluff his way out with his victim. A short while
later, those in the house came out and were arrested by the FBI agents.
Mieses-Pimentel was rescued. He had been held hostage for ten days.
II.
A. Law of the Case
The government argues that Lorenzo-Hernández's appeal of
his sentence at this stage of the case is barred by the law of the
case doctrine. See United States v. Ticchiarelli, 171 F.3d 24, 28-29
(1st Cir. 1999). However, the government did not present this
argument to the district court and we therefore do not consider it
here. United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992) ("It
is a bedrock rule that when a party has not presented an argument to

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1 If this one-level enhancement were not applied, Lorenzo-
Hernández would have an adjusted offense level of thirty-one, and he
would have faced a sentence in the 97-121 month range. U.S.S.G. Ch. 3,
Pt. A, sentencing table. Instead his adjusted offense level is thirty-
two and he was sentenced in the 108-135 month range.
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the district court, she may not unveil it in the court of appeals.").
If the government wishes to assert at resentencing before the
district court after remand that certain issues resolved earlier
should not be revisited, it should say so then.
B. Sentencing Guidelines
The district court judge sentenced Lorenzo-Hernández by
applying the sentencing guideline for kidnapping, U.S.S.G. § 2A4.1. He
applied a six-level enhancement in accordance with U.S.S.G. §
2A4.1(b)(1), because ransom was demanded. He also applied a one-level
enhancement pursuant to U.S.S.G. § 2A4.1(b)(4)(B), because the victim
was not released before seven days had elapsed. It is this one-level
enhancement that Lorenzo-Hernández challenges in this appeal.1
Lorenzo-Hernández argues that the evidence at trial
established that he did not join the hostage taking until August 20,
1997, when the victim was relocated to his residence. He concedes that
the sentencing guidelines' section on assessing relevant conduct in a
jointly undertaken criminal activity, U.S.S.G § 1B1.3(a)(1)(B),
instructs the court to consider "all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken criminal
activity." Id. However, he argues that because application note 2 to

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U.S.S.G § 1B1.3(a)(1)(B) states that "[a] defendant's relevant conduct
does not include the conduct of members of a conspiracy prior to the
defendant joining the conspiracy, even if the defendant knows of that
conduct," his sentence cannot be enhanced based on the fact that the
victim was not released within seven days, because the victim was
released five days from the start of Lorenzo-Hernández's involvement in
the hostage taking. In short, Lorenzo-Hernández argues that the
district court erred when it considered Mieses-Pimentel's five days in
captivity before the victim was transferred to Lorenzo-Hernández's
residence in sentencing Lorenzo-Hernández.
In response, the government argues that there was sufficient
evidence to show that Lorenzo-Hernández was involved in the hostage
taking before the victim was relocated to his home. The government
contends that Lorenzo-Hernández must have known about the hostage
taking before Mieses-Pimentel was moved to his house because it was a
"family affair": Lorenzo-Hernández's father was shown to be actively
involved from the outset, and Lorenzo-Hernández's wife was later
involved. The government also argues that Lorenzo-Hernández must have
participated in the hostage taking before Mieses-Pimentel was
transferred to his home, because he had to arrange for the transfer.
In addition, the government argues that even if application
note 2 to § 1B1.3(a)(1)(B) prohibits the sentencing court's
consideration of "the conduct of members of a conspiracy prior to the

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defendant joining the conspiracy" in most circumstances, the note
contains an exception for an "unusual set of circumstances in which the
exclusion of such conduct may not adequately reflect the defendant's
culpability." In such circumstances "an upward departure may be
warranted." U.S.S.G. § 1B1.3(a)(1)(B), cmt. n.2. The government
contends that this case is one of unusual circumstances, and a sentence
enhancement is allowed.
We review "challenges to the evidentiary support of a
sentencing guidelines enhancement" for clear error, United States v.
Patrick, 248 F.3d 11, 27 (1st Cir.), cert. denied, 122 S. Ct. 620
(2001). We review questions of the legal meaning of the guidelines de
novo. United States v. Mitchell, 85 F.3d 800, 813 (1st Cir. 1996).
Both are involved here.
There are alternate readings of the basis for the trial
judge's sentencing decision, the grounds for which are not explicit.
The first is that the judge appears to have made a subsidiary factual
determination that Lorenzo-Hernández was a member of the conspiracy
from the outset and not just for the five days in which he actively
participated. The district court's one-level enhancement rests on the
district court's finding that this was "a continuing criminal situation

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2 On the other hand, Lorenzo-Hernández points to other language
of the trial judge, contained in the judge's denial of Lorenzo-
Hernández's motion for acquittal or a new trial, that "defendant's role
in the conspiracy began when the victim was moved from [Acosta-
Molina]'s house to the defendant's."
The judge made this statement to refute Lorenzo-Hernández's
argument that because he and Acosta-Molina never met, he could not be
in the conspiracy. In that context, this statement may be read as
saying that Lorenzo-Hernández's participation in the conspiracy began,
at the latest, when the victim was moved to his house.
3 While, technically, an upward departure is not the same as
an enhancement, for present purposes the distinction does not matter.
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in which this defendant actively participated." Further, the district
court judge explicitly stated that he agreed with the government.2
The facts here support such a conclusion. Lorenzo-Hernández
joined the hostage-taking conspiracy before the victim was relocated to
his home. Lorenzo-Hernández's father was actively involved in the
operation from its beginning. Further, it is reasonable to conclude
that Lorenzo-Hernández must have known about the scheme before the
relocation took place, because he had to plan for that relocation.
Alternatively, the district court finding may be read as
applying the "unusual set of circumstances" exception to application
note 2, U.S.S.G. § 1B1.3(a)(1)(B), cmt. n.2, should there be any
ambiguity to U.S.S.G. § 2A4.1(b)(4)(B). Indeed, the sentencing court
repeatedly stated that "there is an unusual set of circumstances here
. . . and that this is the kind of case . . . [where] an upward
departure may be warranted."3 Thus, even crediting Lorenzo-Hernández's

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position that he was only involved for five days, the trial judge was
warranted in utilizing the unusual circumstances exception.
In the end, though, we think Lorenzo-Hernández has misread
the guideline, and the district court was correct in applying the
enhancement. The guideline provides for an enhancement if the victim
was not released "before seven days had elapsed." U.S.S.G. §
2A4.1(b)(4)(B) (emphasis added). Even if Lorenzo-Hernández did not
join the conspiracy before day five, it is inescapable that, by reason
of the victim's prior confinement, the seven days was running. Thus by
the second day of defendant's active involvement, the seven-day period
for release was ending. The guidelines speak to the release date of
the victim, not to the length of time the defendant is involved in the
kidnapping. One of the purposes of the enhancement guideline is to
create incentives to release kidnapping victims by ratchetting up the
penalties the longer the kidnapping lasts. See U.S.S.G. § 2A4.1, cmt.
backg'd ("The adjustment recognizes the increased suffering involved in
lengthy kidnappings and provides an incentive to release the victim.").
Further, the termination of the crime by law enforcement officers after
seven days does not benefit kidnappers any more than it benefits those
who intend to steal or take by fraud a sum of money but find their
scheme foiled by police before it has borne its full fruits. See
United States v. Robbio, 186 F.3d 37, 43-44 (1st Cir. 1999) (defendant
properly sentenced for using counterfeit checks based on loss from

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counterfeit checks already cashed and those not cashed because of
apprehension by authorities); United States v. Egemonye, 62 F.3d 425,
428-29 (1st Cir. 1995) (in sentencing defendant for using other
people's credit cards, loss calculation properly included potential
money from cards obtained but not used because of apprehension by
police). Thus, even if Lorenzo-Hernández joined the conspiracy only
five days before the victim's rescue, the enhancement still applies
because the victim was not released before seven days had elapsed.
The sentence is affirmed.

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