[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals

For the First Circuit

No. 97-1422

UNITED STATES OF AMERICA,

Appellee,

v.

OSVALDO DIAZ-PABON,

Defendant, Appellant.

No. 97-1423

UNITED STATES OF AMERICA,

Appellee,

v.

ANTONIO CRUZ-ARBOLEDA,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Selya, Boudin and Lipez, Circuit Judges.

Rafael F. Castro Lang for appellant Diaz-Pabon.

Eric M. Quetglas Jordan for appellant Cruz-Arboleda.

Mark Irish, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jos‚ A. Quiles-Espinosa, Senior Litigation Counsel, Camille V‚lez-Riv‚, Assistant United States Attorney, and Nelson P‚rez-Sosa, Assistant United States Attorney, were on brief,for appellee.

AUGUST 20, 1998 LIPEZ, Circuit Judge. Appellants Osvaldo Diaz-Pabon and Antonio Cruz-Arboleda were convicted by a jury of federal offenses stemming from two carjackings and a murder in Puerto Rico, all occurring in 1995. Challenging the constitutionality and scope of the Anti-Car Theft Act of 1992, 18 U.S.C. 2119, and the refusal of the district court to remove for cause a prospective juror during voir dire, appellants seek to vacate their convictions.

Appellant Diaz-Pabon also appeals his life sentence. We affirm.

I.

On October 31, 1995, Carlos Ruben Rivera-Aponte, Osvaldo Diaz-Pabon, and Antonio Cruz-Arboleda met at Rivera-Aponte's apartment, where they hatched a plan to carjack a pharmaceutical delivery truck owned by the J.M. Blanco Company. The three men left the apartment in Diaz-Pabon's car, expecting to intercept the delivery truck on its regular route. After observing the delivery truck stopped at a red light, Cruz-Arboleda exited Diaz-Pabon's car and entered the passenger side of the delivery truck with a firearm. As Rivera-Aponte and Diaz-Pabon followed in the car, Cruz-Arboleda and the J.M. Blanco driver continued traveling in the delivery truck. After stopping briefly on the side of the road to allow Diaz-Pabon to join Cruz-Arboleda in the delivery truck, the two vehicles traveled some distance farther and eventually came to a stop. Diaz-Pabon and Cruz-Arboleda exited the delivery truck with the driver's personal belongings and money, joined Rivera- Aponte in the car, and returned to Rivera-Aponte's apartment.

On November 28, 1995, the trio committed a second carjacking of a J.M. Blanco Company delivery truck. On this date, Diaz-Pabon, Cruz-Arboleda, and Rivera-Aponte once again gathered at Rivera-Aponte's apartment. According to Rivera-Aponte's testimony at trial, they agreed to go target-shooting together. As the three men proceeded to the target-shooting location in a station wagon that had been rented by Diaz-Pabon, they observed a J.M. Blanco Company delivery truck stopped at a red light. After the men followed the delivery truck in the station wagon for some distance, Cruz-Arboleda exited the station wagon and entered the delivery truck with a firearm.

As Rivera-Aponte and Diaz-Pabon followed in the station wagon, Cruz-Arboleda and the J.M. Blanco driver continued traveling in the delivery truck. After stopping briefly twice once to allow Rivera-Aponte to join Cruz-Arboleda in the delivery truck the two vehicles continued traveling. Eventually both vehicles stopped along the roadside. Diaz-Pabon, who was still driving the station wagon, informed Rivera-Aponte that a third vehicle was approaching, and that he would continue driving the station wagon and turn around to pick up Rivera-Aponte and Cruz-Arboleda shortly.

As Rivera-Aponte left the delivery truck to meet Diaz- Pabon, he heard several gunshots. Returning to the delivery truck, Rivera-Aponte observed the fatally wounded driver lying on the floor of the truck and Cruz-Arboleda gathering money and the driver's personal belongings. Shortly thereafter, Diaz-Pabon arrived in the station wagon to retrieve Rivera-Aponte and Cruz- Arboleda as agreed. Following an argument between Rivera-Aponte and Cruz-Arboleda about why Cruz-Arboleda had shot the driver, the trio left the scene and returned to Rivera-Aponte's apartment.

On January 31, 1996, Rivera-Aponte, Cruz-Arboleda, and Diaz-Pabon each were charged by indictment with two counts of carjacking in violation of the Anti-Car Theft Act of 1992, 18 U.S.C. 2119, and two counts of using or carrying a firearm during a crime of violence in violation of 18 U.S.C. 924(c)(1). The indictments charged aiding and abetting in addition to direct participation. See 18 U.S.C. 2. The government secured the cooperation of Rivera-Aponte, who entered into a plea agreement and testified at the trial of Cruz-Arboleda and Diaz-Pabon. Both men were found guilty on all counts.

II.

Citing United States v. Lopez, 514 U.S. 549 (1995), Diaz- Pabon and Cruz-Arboleda contend that 18 U.S.C. 2119, the federal carjacking statute pursuant to which they were convicted, was not a valid exercise of congressional power under the Commerce Clause.

We recently rejected an identical facial challenge to section 2119 in United States v. Rivera-Figueroa, Nos. 96-1112, 1290-92, 1998 WL 215809 (1st Cir. May 5, 1998), in which we joined at least seven other circuits by upholding the constitutionality of the statute.

We decline to revisit the issue.

Diaz-Pabon and Cruz-Arboleda also challenge the constitutionality of section 2119 as applied. Maintaining that Lopez requires the government to prove that the carjacked vehicles in question had a "substantial effect" on interstate commerce, appellants contend that the government's evidence specifically, that the carjacked vehicles were shipped to Puerto Rico from Florida in 1990 and 1991 was insufficient to meet this heightened showing.

Contrary to appellants' premise, however, Lopez did not revise the government's burden of proof on a jurisdictional element in criminal statutes. Instead, it "identif[ied] the extent to which purely intrastate activities must impact interstate commerce before Congress may legislate under the Commerce Clause." United Statesv. Cardoza, 129 F.3d 6, 11 (1st Cir. 1997). Unlike the statute at issue in Lopez, section 2119 contains an express jurisdictional element requiring evidence that a carjacked vehicle was "transported, shipped, or received in interstate or foreign commerce." 18 U.S.C. 2119. Satisfaction of this jurisdictional element ensures the requisite minimal nexus with interstate commerce required by the Commerce Clause. See Cardoza, 129 F.3d at 11 (citing Scarborough v. United States, 431 U.S. 563 (1977)). The government presented undisputed evidence that the carjacked vehicles had been shipped in interstate commerce, and appellants' as-applied challenge to section 2119 must fail.

Diaz-Pabon and Cruz-Arboleda also contend that the government failed to present sufficient evidence to prove the "taking" element of section 2119. See 18 U.S.C. 2119 ("Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle . . . ."). They maintain that the evidence presented by the government established only that they temporarily deprived the victims of the motor vehicles for the sole purpose of stealing money and other valuables contained in the motor vehicles. They contend such evidence does not satisfy section 2119's taking element. We disagree. An intent to deprive the victim permanently of a motor vehicle is not required by the taking element, see United States v. Payne, 83 F.3d 346, 347 (10th Cir. 1996); United States v. Moore, 73 F.3d 666, 668 (6th Cir. 1996), cert. denied, 517 U.S. 1228 (1996), nor is a defendant's motive in taking a motor vehicle relevant to section 2119, see Payne, 83 F.3d at 347; Moore, 73 F.3d at 668; United States v. Harris, 25 F.3d 1275, 1279 (5th Cir. 1994). Viewed in the light most favorable to the government, see Jackson v. Virginia, 443 U.S. 307, 319 (1979), the evidence was sufficient.

III.

Diaz-Pabon and Cruz-Arboleda next argue that the district court's erroneous refusal to strike for cause a prospective juror was reversible error because it unfairly forced them to expend one of their ten peremptory challenges, all of which were exercised.

Although restricting a defendant's use of the lawful number of peremptory challenges is reversible error if a challenge for cause is erroneously denied, see United States v. Cambara, 902 F.2d 144, 147-48 (1st Cir. 1990)(citing United States v. Rucker, 557 F.2d 1046, 1048-49 (4th Cir. 1977)), we must first determine whether the district court erred in failing to remove the prospective juror for cause.

A district court's ruling on for-cause challenges to prospective jurors is reviewed for a clear abuse of discretion. SeeUnited States v. Gonzalez-Soberal, 109 F.3d 64, 69-70 (1st Cir. 1997); United States v. Bartelho, 71 F.3d 436, 442 (1st Cir. 1995). "There are few aspects of a jury trial where we would be less inclined to disturb a trial judge's exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empaneling of a jury." Gonzalez-Soberal, 109 F.3d at 69-70 (quoting United States v. McCarthy, 961 F.2d 972, 976 (1st Cir. 1992)).

During the voir dire examination, the district court asked whether any of the prospective jurors or any of the prospective jurors' family members or close personal friends worked or had ever worked for J.M. Blanco Company. Juror #30, the prospective juror at issue, stated that J.M. Blanco Company was a customer of a company with which he worked, and that he had good friends who worked for J.M. Blanco. The court then asked juror #30 whether he had been aware of the 1995 carjackings and murder before arriving at court for jury duty. He responded that he had not.

Later in the voir dire examination, the court asked the entire juror pool whether any one would be unable or unwilling to render a fair and impartial verdict. None of the prospective jurors, including juror #30, responded affirmatively. The court declined to strike for cause juror #30, noting that although he stated that he had friends at J.M. Blanco Company, he nonetheless had not even heard of the 1995 carjackings and murder. Diaz-Pabon and Cruz-Arboleda jointly exercised one of their ten peremptory challenges to remove juror #30.

Although Diaz-Pabon and Cruz-Arboleda complain that the court failed to examine in sufficient depth the nature of juror #30's prior connection with the J.M. Blanco Company, they did not request any follow-up questions to expand the scope of inquiry concerning juror #30's potential bias. Moreover, juror #30 did not know the murder victim or any members of the victim's family. He had no awareness of the carjackings and murder before being summoned for jury duty. Juror #30 indicated, as did the rest of the juror pool, that he would be able and willing to render a fair and impartial verdict. In these circumstances, the court acted well within the bounds of its discretion by refusing to remove for cause juror #30.

Because the district court did not abuse its discretion in ruling on the for-cause challenge, we do not have to address Diaz-Pabon and Cruz-Arboleda's contention that their joint use of a peremptory challenge to remove the prospective juror at issue mandates reversal. See United States v. Lowe, 145 F.3d 45, 49 (1stCir. 1998).

IV.

Diaz-Pabon argues for the first time on appeal that the sentencing court should have departed downwards from the sentencing guidelines pursuant to U.S.S.G. 2A1.1's Application Note 1. In imposing Diaz-Pabon's life sentence, the court applied section 2A1.1, the first-degree murder guideline. Section 2A1.1 applies to, inter alia, the sentencing of perpetrators of certain felonies in 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, that "[l]ife imprisonment is not necessarily appropriate in all situations," and that "[i]f the defendant did not cause the death intentionally or knowingly, a downward departure may be warranted. . . ." Id. 2A1.1 comment. (n.1). Relying on the preceding provision from Application Note 1, Diaz-Pabon argues that the evidence established that he did not intentionally cause the delivery truck driver's death, and the sentencing court therefore should have departed downwards from section 2A1.1's guideline of life imprisonment.

Although the government contends that the district court did consider section 2A1.1's application note when sentencing Diaz- Pabon, we find that the record is ambiguous on this point. It is clear, however, that Diaz-Pabon never asked the court to consider a downward departure pursuant to the application note. "[A]rguments not squarely presented to the sentencing court cannot debut as of right in an appellate venue," United States v. Martinez-Martinez, 69 F.3d 1215, 1225 (1st Cir. 1995) (quoting United States v. Piper, 35 F.3d 611, 620 n.6 (1st Cir. 1994)), cert. denied, 517 U.S. 1115 (1996), and Diaz-Pabon's unpreserved legal claim is deemed waived.

See Id. Even if Diaz-Pabon had sought a departure in the district court on the basis of section 2A1.1's application note, we would be without jurisdiction to review the court's discretionary decision to reject that request. See id.; 18 U.S.C. 3742(e),(f). An appellate court generally lacks jurisdiction to review a sentencing court's discretionary decision not to depart below the guideline sentencing range. See United States v. Mangos, 134 F.3d 460, 465 (1st Cir. 1998). There is an exception to this general rule when the decision not to depart is based on the sentencing court's erroneous belief that it lacks the authority to depart. See Id. There is nothing in the record, however, to suggest that the sentencing court believed that it lacked the authority to depart.

To the contrary, the court stated at the sentencing hearing that it "consider[ed] the fact that this defendant did not do the actual shooting," but that it nonetheless believed a life sentence was appropriate. In these circumstances, we are without jurisdiction to review the court's discretionary decision not to depart from the sentencing guidelines.

Diaz-Pabon seeks to avoid the statutory limitations on our jurisdiction by contending that the sentencing court "incorrectly applied" the guidelines. See 18 U.S.C. 3742(e)(2) (authorizing a court of appeals to review a sentence which was "imposed as a result of an incorrect application of the sentencing guidelines"). He relies on the following provision set forth in Application Note 1: If the defendant did not cause the death intentionally or knowingly, a downward departure may be warranted. The extent of the departure should be based on the defendant's state of mind (e.g., recklessness or negligence), the degree of risk inherent in the conduct, and the nature of the underlying offense conduct. . . .

U.S.S.G. 2A1.1 comment. (n.1)(emphasis added). This provision, he contends, requires the sentencing court to engage in an analysis of the factors listed therein when imposing a sentence for a death that was caused unintentionally or unknowingly, and that the sentencing court's failure to do so expressly constituted a misapplication of the guidelines. We do not agree. The provision at issue simply directs that the extent of a departure not the decision to depart itself should be guided by factors listed therein. The sentencing court was under no duty to analyze the factors set forth in Application Note 1 to justify its discretionary decision not to depart from the guidelines, and we find no merit in Diaz-Pabon's contention that the court applied the guidelines incorrectly.

V.

Finally, Diaz-Pabon contends that he was deprived of the effective assistance of counsel during the sentencing phase of his trial because his trial counsel did not ask the court to consider a downward departure on the basis of U.S.S.G. 2A1.1's Application Note 1. We will not consider an ineffective assistance of counsel claim on direct appeal unless the record is sufficiently developed to permit review of the claim. See Martinez-Martinez, 69 F.3d at 1225. The proper route for such claims is through a collateral proceeding in district court pursuant to 28 U.S.C. 2255. Such a proceeding permits the development of the evidentiary record usually required by ineffective assistance of counsel claims. See United States v. Caggiano, 899 F.2d 99, 100 (1st Cir. 1990). Diaz-Pabon's ineffective assistance of counsel claim implicates matters beyond the record in this proceeding. We decline to consider the claim on direct appeal. See Martinez-Martinez, 69 F.3d at 1225.

The judgments of the district court are affirmed.