United States Court of Appeals

For the First Circuit

No. 20-1035

UNITED STATES OF AMERICA,

Appellee,

v.

JORGE L. RODRÍGUEZ-SANTOS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Gelpí, Lipez, and Thompson,

Circuit Judges.

Jose R. Gaztambide-Añeses for appellant. 

Jonathan L. Gottfried, Assistant United States Attorney, with 

whom W. Stephen Muldrow, United States Attorney, Mariana E. 

Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate 

Division, and Robert P. Coleman III, Assistant United States 

Attorney, were on brief, for appellee. 

December 29, 2022
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LIPEZ, Circuit Judge. Jorge Rodríguez-Santos was 

convicted of aiding and abetting (1) a carjacking resulting in 

death (Count One), (2) kidnapping resulting in death (Count Two), 

and (3) the use of a gun during a crime of violence resulting in 

murder (Count Three). He appeals his conviction, arguing that the 

evidence was insufficient on all counts and that the district court 

erred by failing to provide a duress instruction to the jury. He

also contends that his conviction for aiding and abetting the use 

of a gun during a crime of violence must be vacated in light of 

the Supreme Court's decision in United States v. Davis, 139 S. Ct. 

2319 (2019). Finally, he challenges two aspects of his sentence. 

We affirm. 

I.

Because this appeal concerns, in large part, a 

sufficiency of the evidence challenge, "we recount the facts in 

the light most favorable to the verdict." United States v. 

Paz-Alvarez, 799 F.3d 12, 18 (1st Cir. 2015). They are shocking. 

At approximately 5:00 PM on October 10, 2015, Maria Luisa 

Mayol-Rivera, driving a white Mitsubishi Lancer, pulled up outside 

the home of Melissa Cartagena-Vives and Ricardo Pagan-Rodríguez in 

Ponce, Puerto Rico. Cartagena-Vives and Pagan-Rodriguez were 

working on a car when Mayol-Rivera arrived. When she approached 

the car, Cartagena-Vives saw that Mayol-Rivera was upset, her mouth 

was split, her face was covered in blood, and she was drunk. 
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Seeing Mayol-Rivera's distress, Cartagena-Vives offered 

to call the police, but Mayol-Rivera declined. Instead, as 

Cartagena-Vives described, Mayol-Rivera requested "help to catch 

the guys [who had] taken her phone from her and . . . beat her 

up." Enidza Marie Rodriguez-Figueroa, another witness who had 

been outside with Cartagena-Vives, testified that Mayol-Rivera was 

scared and had stated that the "guys" -- presumably those who had 

beaten her -- "were going to burn her inside the vehicle." 

After attempting to aid Mayol-Rivera for several 

minutes, Cartagena-Vives received a call on her cell phone. She 

recognized the voice of Luis Miguel Jiminez-Medina ("Luis 

Miguel"), whom she also saw standing on a nearby hill, holding a 

weapon. 1 Luis Miguel threatened her and warned her to get 

Mayol-Rivera out of the area because she was a federal agent. 

After Cartagena-Vives hung up, she saw him fire a single shot --

at what target is unclear -- before leaving the hill. 

Not long after, a blue Dodge truck arrived outside of 

Cartagena-Vives's home carrying three men: Luis Miguel, Tito 

Bodon, and Rodríguez-Santos, the defendant. Bodon was driving,

Rodríguez-Santos was in the front passenger seat, and Luis Miguel 

was seated in the back. Rodríguez-Santos ordered Luis Miguel to 

1 It is unclear from the record how Cartagena-Vives recognized 

Luis Miguel's voice and, in general, whether the witnesses at 

Cartagena-Vives's house had any prior relationship with 

Mayol-Rivera or her abductors.
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"[g]et out and move" when they arrived. Luis Miguel and 

Rodríguez-Santos then got out of the truck. Mayol-Rivera started 

screaming that these were the men who had beaten her and threw a 

bottle of liquor at their truck. Rodríguez-Santos approached 

Mayol-Rivera, who was standing by her car, grabbed her, and dragged 

her toward her car by her hair, pulling so hard that he "moved her 

face back." He then hit her, slammed her face against her car 

mirror, and ordered her to get in the car. She was screaming at 

him to let go of her. He then gave her to Luis Miguel, urging him

to "move it" and get into the backseat with Mayol-Rivera. Luis 

Miguel then also hit her, "grabbed hold of her[,] and put her 

inside her car in the back." After getting Mayol-Rivera into the 

back seat, Luis Miguel got into her car with a tank of gasoline. 

Both vehicles then left the scene -- Rodríguez-Santos drove 

Mayol-Rivera's car away, with Luis Miguel and Mayol-Rivera in the 

back seat. 

That evening, at approximately 10:00 PM, the Puerto Rico 

Police Department received an anonymous call reporting a person 

and a vehicle on fire in Rio Chiquito. A homicide investigator 

went to the scene and discovered a burned Mitsubishi Lancer and, 

across the road, a burned body. From the vehicle's license plate 

number, the police were able to trace the car to Adriana 

Pou-Porrata. Pou-Porrata explained that she had lent the car to 

Mayol-Rivera, who had been staying at her house. A forensic dental 
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examination later confirmed that the body found on the side of the 

road was Mayol-Rivera. 

Investigators found gasoline on Mayol-Rivera's clothing,

five 9mm bullet casings under her body, and nine .40-caliber bullet 

casings in an area nearby. The autopsy confirmed that 

Mayol-Rivera died as the result of three gunshots to the head, 

which occurred before her body was burned. She also appeared to 

have sustained a gunshot to her left arm, and also exhibited first, 

second, third, and fourth-degree burns covering her entire body. 

The morning after Mayol-Rivera's murder, 

Rodríguez-Santos dropped off his truck with a local mechanic, 

Antonio Rosado-Colón. He asked Rosado-Colón to fix a hole in the 

door of his truck and told him the hole had been caused by rebar, 

a steel rod. Rodríguez-Santos returned that afternoon to pay for 

the repairs and pick up the truck. 

The police subsequently used security camera footage and 

Google maps to trace the route of Mayol-Rivera's car, the 

Mitsubishi Lancer, to the crime scene. They identified a blue 

Dodge truck driving with the Lancer to the scene and traced the 

truck to Rodríguez-Santos. Security footage also showed the blue 

Dodge truck returning along the same road twenty minutes later, 

without the Lancer. Investigators went to Rodríguez-Santos's 

home, where he allowed them to take his truck for analysis. That 
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analysis revealed a perforation caused by a bullet in one of the 

door panels. 

A federal grand jury indicted Rodríguez-Santos on three 

counts: aiding and abetting a carjacking resulting in death, 18 

U.S.C. § 2119, aiding and abetting a kidnapping resulting in death, 

18 U.S.C. § 1201(a)(1), and aiding and abetting the use of a 

firearm during a crime of violence resulting in murder, 18 U.S.C. 

§ 924(c)(1)(a), (j)(1). 

At the five-day trial, Rodríguez-Santos testified that 

he participated in the events leading to Mayol-Rivera's murder 

only under duress. Specifically, he offered the following 

account. On the evening of October 10th, he was getting into his 

truck in the La Coqui ward after buying a drink when he was accosted 

by Tito Bodon and a masked man (whom he later identified as Luis 

Miguel). The men took control of Rodríguez-Santos's truck at 

gunpoint. A third man, identified only as "Chewi," approached the 

truck and entered on the passenger side. The three men then put 

a bag over Rodríguez-Santos's head and drove away with his truck,

with him as a passenger. 

When the truck eventually stopped, Luis Miguel got out, 

grabbed Mayol-Rivera, and put her in a car (ostensibly her 

Mitsubishi Lancer). Both vehicles then drove away but stopped 

again when Chewi got out to retrieve a red gas tank from a different 

vehicle before they continued on. Finally, the vehicles stopped 
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and Bodon ordered Rodríguez-Santos to get out and kneel on the 

truck's running board. Rodríguez-Santos saw the men pour gasoline 

over the white car and set it on fire. Bodon shot Mayol-Rivera,

and Chewi poured gasoline on her body. However, the men decided 

not to kill Rodríguez-Santos. Instead, they drove him back to the

La Coqui ward in his truck. Before getting out of his truck, the 

men told Rodríguez-Santos they would kill him if he ratted them 

out and also threatened his mother. The next morning, Bodon and 

Luis Miguel showed up outside Rodríguez-Santos's home and took him 

to get the bullet hole in his truck repaired. 

The jury did not credit Rodríguez-Santos's story, and he 

was convicted on all counts. Defense counsel filed a Rule 29 

motion, arguing that the evidence was insufficient on each count, 

which the district court denied. The district court then 

sentenced Rodríguez-Santos to concurrent terms of life

imprisonment for the aiding and abetting in carjacking and 

kidnapping counts, and a life sentence for the firearm count, to 

be served consecutively to the other terms.2 The district court

also applied a sentencing enhancement for obstruction of justice 

because "Mr. Rodríguez deliberately gave false testimony during 

trial." This appeal followed. 

2 The other men involved with this crime are either dead or 

imprisoned. Bodon died on September 18th, 2016, and Chewi has 

been dead since December 21st, 2017. Luis Miguel has been in 

custody since 2018. 
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II.

A. Sufficiency of the Evidence

Rodríguez-Santos argues that the evidence presented at 

trial was insufficient to warrant a conviction on any count. 

Because his appeal follows a guilty verdict, we "assess preserved 

sufficiency claims de novo . . . reviewing the evidence, and making 

all inferences and credibility choices, in the government's favor 

-- reversing only if the defendant shows that no rational 

factfinder could have found him guilty." United States v. 

Rodríguez-Torres, 939 F.3d 16, 23 (1st Cir. 2019). 

1. Carjacking

Count One charged Rodríguez-Santos with aiding and 

abetting a carjacking resulting in death in violation of 18 U.S.C. 

§ 2119. The elements of this offense are the "(1) taking or 

attempted taking from the person or presence of another; (2) a 

motor vehicle transported, shipped, or received in interstate or 

foreign commerce; (3) through the use of force, violence, or by 

intimidation; (4) with the intent to cause death or serious bodily 

harm; (5) that results in death." United States v. Castro-Davis, 

612 F.3d 53, 61 (1st Cir. 2010). 

Rodríguez-Santos primarily focuses his argument on the 

intent element, arguing that the record does not support a finding 

that he had the intent to seriously injure or kill Mayol-Rivera 

when aiding the carjacking. As Rodríguez-Santos was charged with 
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aiding and abetting the offense, we must determine whether the 

evidence indicates he "possessed -- or knew that the principals 

possessed -- at least conditional intent to inflict death or bodily 

harm at the time he and [the principals] took the car." United 

States v. Evans-García, 322 F.3d 110, 114 (1st Cir. 2003). The 

Supreme Court has explained that conditional intent for purposes 

of the federal carjacking statute exists when "at the moment the 

defendant demanded or took control over the driver's automobile 

the defendant possessed the intent to seriously harm or kill the 

driver if necessary to steal the car." Holloway v. United States, 

526 U.S. 1, 12 (1999). In other words, the government can prove 

conditional intent by showing that a defendant was willing to cause 

bodily harm or death to accomplish the carjacking, which can be 

proven, for example, simply by showing that violence or 

intimidation occurred during the commission of the carjacking. 

See id. at 6-7, 9-10. This is so because such actions show that 

the defendant possessed the intent to harm or kill at the precise 

moment the crime was committed. Id. at 6-7. There is ample 

evidence in the record to support such a finding.

First, according to Rodriguez-Figueroa, one of the 

witnesses, Mayol-Rivera stated that she was scared because, before 

arriving in front of Cartegena-Vives's house, she had been beaten 

and threatened that she would be burned inside her car. Later, 

when Rodríguez-Santos and Luis Miguel arrived on the scene, 
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Mayol-Rivera indicated that they were the men who had beaten her. 

Second, witnesses described seeing Rodríguez-Santos hit 

Mayol-Rivera, pull her by her hair toward her car, slam her face 

into the car mirror, and hand her over to Luis Miguel, all while 

she was screaming. Third, after Luis Miguel forced Mayol-Rivera 

into the back of her car, a witness described seeing him get into 

the car carrying a tank of gasoline before Rodríguez-Santos drove 

them away. Fourth, later that evening, Mayol-Rivera was found 

dead, having been shot several times before her body was burned. 

We have found the requisite intent to inflict serious 

bodily harm or death in circumstances much less violent than these. 

For example, in United States v. Díaz-Rosado, 857 F.3d 116, 121-

22 (1st Cir. 2017), we concluded that evidence demonstrating that 

the appellant struggled with the victim, "'push[ed] and shov[ed]' 

her," "thr[e]w [her] onto the cement sidewalk," and then began 

driving away with her car while the victim was attempting to get 

her grandchild out of a car seat, was sufficient to indicate that 

the appellant was willing to cause serious bodily harm in order to 

complete the carjacking. We have also held that, while death 

alone is not enough to satisfy the intent requirement, "[c]ommon 

sense . . . dictates that the final act, at the very least, 

evidences the intent." Castro-Davis, 612 F.3d at 63 n.13. 

To state the obvious, the evidence here permitted "a 

rational jury to conclude beyond a reasonable doubt that 
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[Rodríguez-Santos and the other men were] willing to cause serious 

bodily harm in order to abscond with [Mayol-Rivera]'s car." DíazRosado, 857 F.3d at 122. As we have described, several witnesses 

identified Rodríguez-Santos as a key participant in the violent 

scene that ended with Mayol-Rivera's car being driven away. These 

witnesses also identified Rodríguez-Santos as the driver. 

Moreover, the witness accounts of Mayol-Rivera's statements and 

behavior during the incident suggest that Rodríguez-Santos had 

participated in the violent beating she received before her arrival 

at Cartagena-Vives's home. Taken together, these facts are 

sufficient to permit the reasonable inference that 

Rodríguez-Santos possessed, or at the very least knew that the 

other men possessed, the intent to seriously injure or kill 

Mayol-Rivera during the commission of the carjacking. 

Finally, although it is unclear from the briefing if 

Rodríguez-Santos challenges other elements of this count -- he 

broadly states that there is no evidence of "actus reus"3 on any 

count -- we briefly note that the evidence also supports the 

remaining elements of the aiding and abetting in a carjacking 

offense. Given the witness descriptions of the initial encounter 

and the ultimate discovery of the burned car, it is evident that 

3 Actus reus is defined as the action or conduct which is a 

constituent element of a crime, as opposed to the mental state of 

the accused. See ACTUS REUS, Black's Law Dictionary (11th ed. 

2019).
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Rodríguez-Santos, Luis Miguel, and Bodon were successful in 

obtaining control of Mayol-Rivera's vehicle, satisfying the first 

prong. As to the second prong, the parties stipulated to the fact 

that the vehicle in question was shipped in interstate commerce.

Regarding the third prong, the above facts demonstrate that 

Rodríguez-Santos used violent force in obtaining control of the 

vehicle. And the final prong is satisfied by Mayol-Rivera's 

murder immediately following the events described above. Viewing 

the record in the light most favorable to the verdict, we conclude 

that the evidence supports the conviction on Count One. 

2. Kidnapping

Count Two charged Rodríguez-Santos with aiding and 

abetting a kidnapping resulting in death. The federal kidnapping 

statute, 18 U.S.C. § 1201, proscribes the actions of "any person 

who: 'unlawfully seizes, confines, inveigles, decoys, kidnaps, 

abducts, or carries away and holds for ransom or reward or 

otherwise any person.'" United States v. Brown, 295 F.3d 152, 

154-55 (1st Cir. 2002) (quoting 18 U.S.C. § 1201(a)). The statute 

also provides that "if the death of any person results, [the 

offender] shall be punished by death or life imprisonment." 18 

U.S.C. § 1201(a). To prove this count, the government needed to 

show that the defendant willfully aided and abetted the kidnapping. 

See United States v. Simpson, 44 F.4th 1093, 1099 (8th Cir. 2022); 

United States v. Urciuoli, 513 F.3d 290, 299 (1st Cir. 2008)
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(quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)) 

(explaining than an aider and abettor is one who "associate[s] 

himself with the venture[] [and] participate[s] in it" and who 

"seek[s] by his action to make it succeed."). However, the 

government did not need to prove that Rodríguez-Santos knew in 

advance that death would result from the kidnapping. See Simpson, 

44 F.4th at 1099. Instead, the "death resulted" element only 

required the government to prove that the kidnapping caused the 

victim's death, but not that the individuals involved intended or 

knew that death would result. See id. (citing United States v. 

Barraza, 576 F.3d 798, 807 (8th Cir. 2009)). And "results," as 

used in this context, "means that the kidnapping is a but-for cause 

of the death." United States v. Ross, 969 F.3d 829, 838 (8th Cir. 

2020), vacated in part, No. 18-2800, No. 18-2877, 2022 WL 4103064

(8th Cir. Sept. 7, 2022) (citing Burrage v. United States, 571 

U.S. 204, 210-11 (2014)). In short, the government only needed 

to show that the defendant by his actions aided in the kidnapping

that resulted in death. See Simpson, 44 F.4th at 1099. 

Rodríguez-Santos argues that there is no evidence that

he aided and abetted a kidnapping because the government failed to 

show that he intended to commit the kidnapping, that he had advance 

knowledge of it, or that he facilitated the commission of the 

offense. However, as we have noted, the record contains witness 

testimony describing Rodríguez-Santos's active participation in 
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Mayol-Rivera's kidnapping. See United States v. Campa, 679 F.2d 

1006, 1010 (1st Cir. 1982) ("The government must prove some 

affirmative participation by the aider and abettor."). The jury 

heard testimony from witnesses who saw Rodríguez-Santos grab 

Mayol-Rivera and hit her before getting into her car and driving 

away, with her in the backseat. One witness described hearing 

Rodríguez-Santos urging Luis Miguel to "move it" and get into the 

backseat with a resisting Mayol-Rivera. The jury also heard that 

investigators were able to trace the path of Mayol-Rivera's and 

Rodríguez-Santos's vehicles to the crime scene where her body was 

found. 

Such evidence permits a reasonable inference that 

Rodríguez-Santos was aware of the intended offense (the kidnapping 

of Mayol-Rivera) and intended to assist Luis Miguel and Bodon in 

carrying it out. See Rosemond v. United States, 572 U.S. 65, 78 

n.9 (2014) ("In any criminal case, . . . the factfinder can draw 

inferences about a defendant's intent based on all the facts and 

circumstances of a crime's commission."). Simply put, viewing the 

record in the light most favorable to the verdict, the evidence 

indicates that Rodríguez-Santos, Luis Miguel, and Bodon threatened 

and beat Mayol-Rivera, followed her car to Cartagena-Vives's home 

in Rodríguez-Santos's truck, and then abducted her. Hence, we 

readily affirm Rodríguez-Santos's conviction on the kidnapping 

count. 
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3. Use of a Firearm in Relation to a Crime of Violence

Count Three charged Rodríguez-Santos with aiding and 

abetting the use of a firearm in relation to a crime of violence, 

18 U.S.C. § 924(c)(1)(A), here Mayol-Rivera's murder, id.

§ 924(j)(1). Section 924(j)(1) incorporates 18 U.S.C. § 1111, 

which states that a murder "is the unlawful killing of a human 

being with malice aforethought" and that a murder committed in the 

course of a kidnapping or robbery is murder in the first degree. 

The indictment listed both the carjacking and the kidnapping counts 

as underlying crimes of violence to support Count Three.4 The 

government's decision to list both counts as potential underlying 

crimes of violence meant that evidence presented to prove the use 

of a firearm was interwoven with the proof on the two prior counts. 

On this final count, Rodríguez-Santos raises only one

sufficiency challenge. He argues that, as the indictment did not 

charge him with premeditation as to Counts One or Two, Count Three 

necessarily fails. He appears to draw this argument from United 

States v. Catalán-Román, in which we described an indictment that 

charged defendants with aiding and abetting the use of a firearm 

in connection with a crime of violence "with premeditation." 585 

F.3d 453, 474 (1st Cir. 2009). But Catalán-Román does not hold 

4 Rodríguez-Santos raises a challenge to the "crime of 

violence" prong of this count in a later portion of his briefing. 

We follow suit and address only his sufficiency of the evidence 

arguments here. 
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that premeditation is an essential element of a charge under 18 

U.S.C. §§ 924(c)(1)(A) and (j)(1). Rather, we explained that "18 

U.S.C. § 1111 'was intended to adopt the felony murder rule, and 

for a stated felony the "malice" element is satisfied by the intent 

to commit the unlawful felony.'" Id. (quoting United States v. 

Morales-Machuca, 546 F.3d 13, 22 (1st Cir. 2008)). Thus, if there 

was sufficient evidence that Rodríguez-Santos intended to aid in 

the carjacking or the kidnapping, the "malice" element of Count 

Three is satisfied. As we explained above, there is ample evidence 

that he intended to aid in both the kidnapping and the carjacking, 

so his sufficiency challenge to Count Three also fails. 

B. Jury Instructions

Rodríguez-Santos argues that the district court erred 

when it did not provide a jury instruction on duress. He admits 

in his brief that he "did not disclose that he was going to employ 

the duress defense during trial or move the district court for a 

ruling on this subject prior to trial." On appeal, he has also 

failed to identify any instance in the record where he requested 

an instruction on the affirmative defense. His failure to seek a 

duress instruction or to object to the given instructions renders 

this argument unpreserved and thus subject to the rigorous plain 
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error standard, which he cannot meet.5 Teixeira v. Town of 

Coventry, 882 F.3d 13, 16 (1st Cir. 2018). 

To show plain error, Rodríguez-Santos must demonstrate 

that the omission of a duress instruction was (1) "an error . . .

(2) which was clear or obvious and which not only (3) affected 

[his] substantial rights, but also (4) seriously impaired the 

fairness, integrity, or public reputation of judicial 

proceedings." United States v. Pennue, 770 F.3d 985, 989 (1st 

Cir. 2014) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st 

Cir. 2001)). There was no clear or obvious error in omitting the 

duress jury instructions because there was no error at all in the 

absence of a duress instruction.

To establish a duress defense, a defendant must 

demonstrate that he "committed a crime as a result of: '(1) an 

immediate threat of serious bodily injury or death, (2) a wellgrounded belief that the threat will be carried out, and (3) no 

5 Rodríguez-Santos points to three Fifth Circuit decisions 

that he contends show that the trial court was obligated to sua 

sponte give a duress instruction to the jury. See Appellant's Br. 

at 63 (citing United States v. Posado-Rios, 158 F.3d 832 (5th Cir. 

1998); United States v. Dixon, 413 F.3d 520 (5th Cir. 2005); United 

States v. Willis, 38 F.3d 170 (5th Cir. 1994)). While all of 

these cases relate to duress jury instructions, none of them 

support his entitlement to a duress instruction because, in all 

three cases, the defendant either requested a duress instruction 

before the district court or challenged the district court's 

proposed instructions. See Posado-Rios, 158 F.3d at 873-75; 

Dixon, 413 F.3d at 525; Willis, 38 F.3d at 174-176. 
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reasonable opportunity to escape or otherwise to frustrate the 

threat.'" United States v. González-Pérez, 778 F.3d 3, 13 (1st 

Cir. 2015) (quoting United States v. Arthurs, 73 F.3d 444, 448 

(1st Cir. 1996)). Rodríguez-Santos testified that he was forced 

at gun point to allow Bodon, Luis Miguel and Chewi to take his 

truck. The three men put a bag over his head and drove to 

Cartagena-Vives's home, where he was ordered out of the truck so 

the other men could get out, and then ordered back in. From the 

truck, he watched Luis Miguel grab Mayol-Rivera and force her into 

a car. Eventually both the truck (carrying Rodríguez-Santos) and 

a car (carrying Mayol-Rivera) left and drove to the murder scene. 

There, Rodríguez-Santos was ordered out of the truck and told to 

kneel on the running board. He saw the men kill Mayol-Rivera and 

set fire to her vehicle. 

Such testimony fails to establish the elements of a 

duress defense because, rather than explaining that he 

participated in the charged crimes under threat, Rodríguez-Santos 

denies that he participated at all. By his account, he was the 

victim of a carjacking (of his own truck) and then was a mere 

bystander to the carjacking of Mayol-Rivera's vehicle, the 

kidnapping, and the use of a firearm to commit the murder. In his 

briefing, Rodríguez-Santos argues he was "forcefully pressure[d] 

to go along with the taking of the vehicle and the kidna[p]ping," 
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but he describes no conduct that he was forced to engage in beyond 

simply being present at various crime scenes. 

Because he failed to put forward any facts that could 

satisfy the elements of a duress defense, the district court could 

not have committed error in not giving the instruction even if it 

had been requested. In sum, Rodríguez-Santos's argument that the 

jury should have been instructed on the affirmative defense of 

duress clearly fails the plain error standard because there was no 

error at all.

C. Crime of Violence 

Rodríguez-Santos argues that his conviction for aiding 

and abetting the use of a firearm in connection with a crime of 

violence under 18 U.S.C. § 924(c) is invalid in light of United 

States v. Davis, 139 S. Ct. 2319 (2019). The term "crime of 

violence" as relevant to convictions under § 924(c) is defined as 

a felony that "has as an element the use, attempted use, or 

threatened use of physical force against the person or property of 

another" (referred to as "the force clause") or 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" (referred to as "the residual clause"). 

18 U.S.C. § 924(c)(3)(A)-(B). In Davis, the Court held that this 

second definition, the residual clause, was unconstitutionally 

vague. Davis, 139 S. Ct. at 2336.
- 20 -

In his briefing, Rodríguez-Santos states that his 

conviction under § 924(c) rests on the residual clause definition 

of "crime of violence" and thus must be overturned. However, he 

does not explain why he believes only the residual clause 

definition applies to Counts One and Two and does not differentiate 

between the two possible predicate offenses described to the jury: 

carjacking and kidnapping. If the force clause applies to the

predicate offenses, the unconstitutionality of the residual clause 

definition is irrelevant. See United States v. Hernández-Román, 

981 F.3d 138, 146 (1st Cir. 2020) (noting that "any conceivable 

infirmity in the residual clause of [§ 924(c)] offered the 

defendant no avenue for relief when the predicate offense qualified 

as a crime of violence under one of the other clauses"). The 

question, then, is whether carjacking or kidnapping is a crime of 

violence within the meaning of the force clause. 

We have previously held that the force clause 

encompasses federal carjacking. United States v. Cruz-Rivera, 904 

F.3d 63, 66 (1st Cir. 2018). We have not considered whether the 

force clause applies to federal kidnapping under 18 

U.S.C. § 1201(a). Other circuit courts have considered this 

question but have reached conflicting conclusions.6 We need not

6 The Fifth Circuit distinguishes between the crime of 

kidnapping and kidnapping resulting in death, holding that both 

are crimes of violence under the force clause. See In re Hall, 

979 F.3d 339, 344 (5th Cir. 2020). Similarly, the Eighth Circuit 
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wade into this debate to resolve this case because, as we explain, 

Rodríguez-Santos's argument fails to meet two prongs of the 

rigorous plain error standard. 

A situation where one predicate charge is a valid basis 

for a conviction and the other is not may give rise to a Yates

error, which occurs where a jury is "instructed on alternative 

theories of guilt and may have relied on an invalid one." Hedgpeth

v. Pulido, 555 U.S. 57, 58 (2008) (per curiam); see Yates v. United 

States, 354 U.S. 298, 311-12 (1957), overruled on other grounds 

by Burks v. United States, 437 U.S. 1 (1978); see also United 

States v. Laurent, 33 F.4th 63, 86 (2d Cir. 2022), cert. denied, 

No. 22-5754, 2022 WL 16542116 (Oct. 31, 2022) (finding a Yates

error when the jury was improperly instructed to consider a 

predicate offense that did not constitute a crime of violence under 

treats kidnapping resulting in death as a crime of violence under 

the force clause and implies that kidnapping should be as well 

because "kidnapping necessarily involves 'a deliberate decision to 

endanger another' that amounts to recklessness." Ross, 969 F.3d 

at 839. In contrast, the Seventh Circuit has held that "kidnapping 

is not a crime of violence under the Force Clause" because no 

element of the crime of kidnapping requires the use of physical 

force. United States v. Jenkins, 849 F.3d 390, 393-94 (7th Cir. 

2017), cert. granted, judgment vacated, 138 S. Ct. 1980 (2018). 

Applying that same logic, the Eleventh Circuit has reasoned that 

"federal kidnapping . . . can be committed by mere inveiglement 

and holding the victim by either physical or psychological force." 

United States v. Gillis, 938 F.3d 1181, 1210 (11th Cir. 2019) 

(emphasis in original). Because physical force is not required 

to commit kidnapping, that court held that kidnapping is not a 

categorial crime of violence under the force clause. Id.
- 22 -

§ 924(c)). Such errors are typically subject to harmless error 

review. Skilling v. United States, 561 U.S. 358, 414 (2010). 

However, unpreserved claims are subject to the "more 

exacting plain error standard." Greer v. United States, 141 S. 

Ct. 2090, 2099-100 (2021) (clarifying that plain error applies to 

unpreserved, non-structural constitutional errors); 

Hernández-Román, 981 F.3d at 145-46 (applying plain error to 

appellant's unpreserved claim that § 924(c)'s residual clause was 

unconstitutionally vague); Laurent, 33 F.4th at 86 (reasoning in 

a post-Davis decision that plain error review applied to 

appellant's unpreserved claim that the jury was improperly 

instructed to consider a predicate offense that did not constitute 

a crime of violence under § 924(c)). Because Rodríguez-Santos did 

not raise an objection to the inclusion of both Counts One and Two 

as possible predicates in the jury instructions and on the verdict 

form, we review his claim for plain error. 

The jury instructions in this case stated that a § 924(c) 

conviction could rest on either the carjacking count or the 

kidnapping count. Similarly, the indictment states that the 

predicate crime of violence underlying Count Three may be either 

Count One, carjacking resulting in death, or Count Two, kidnapping 

resulting in death. The verdict also did not specify which 

predicate offense the jury ultimately relied upon in finding 

Rodríguez-Santos guilty on Count Three. In other words, there is 
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a potential Yates error because it is impossible to know for 

certain whether the jury considered kidnapping or carjacking the 

predicate crime of violence required for a conviction on Count 

Three when only carjacking is an established crime of violence in 

this circuit. In theory, the jury could have concluded that 

Rodríguez-Santos only aided and abetted the use of a firearm in 

connection with kidnapping and not the carjacking.

This Yates error argument fails on the second prong of 

plain error review because the instructional error was not "clear 

or obvious." Hernández-Román, 981 F.3d at 146 (quoting Duarte, 

246 F.3d at 60) (reciting the plain error standard). We have not 

determined whether kidnapping is a crime of violence; therefore, 

the district court did not commit a clear or obvious error in 

treating it as such, especially where, as here, other circuit

courts have treated kidnapping as a crime of violence. In short, 

the district court's instruction reflected decisions of some of 

our sister circuits without conflicting with any of our own 

precedents and thus was not a clear or obvious error.

However, even if we assumed, solely for purposes of this 

decision, that the kidnapping charge was clearly an inappropriate

predicate offense, the outcome would be no different because 

Rodríguez-Santos cannot establish that such an error "affected 

[his] substantial rights," the third prong of the plain error 

standard. Id. 
- 24 -

"An error affects substantial rights if it was 

'prejudicial,' meaning that the error 'must have affected the 

outcome of the district court proceedings.'" Ramirez-Burgos v. 

United States, 313 F.3d 23, 29 (1st Cir. 2002) (quoting United 

States v. Olano, 507 U.S. 725, 734 (1993)). This requirement 

"generally means that there must be a 'reasonable probability that, 

but for the error, the outcome of the proceeding would have been 

different.'" Greer, 141 S. Ct. at 2096 (quoting Rosales-Mireles

v. United States, 138 S. Ct. 1897, 1904-05 (2018)). Here, we 

conclude that the result would not have been different if the 

kidnapping charge had been omitted from Count Three because the 

kidnapping count and the carjacking count are "inextricably 

intertwined," Parker v. United States, 993 F.3d 1257, 1263 (11th 

Cir. 2021), and it is therefore improbable that the jury would 

have acquitted on Count Three in the absence of the kidnapping 

predicate. 

The evidence used to prove both predicates was almost 

identical: essentially, Rodríguez-Santos and the other men 

simultaneously abducted Mayol-Rivera and took control of her 

vehicle before she was murdered. Further, all of the evidence 

regarding the use of a firearm was equally relevant to the "death 

resulting" element of the carjacking and the kidnapping. 

Therefore, it is highly unlikely that the jury would have reached 
- 25 -

a different result on Count Three in the absence of the kidnapping 

predicate.

Moreover, of the two predicates, only the carjacking 

offense has an element requiring that a defendant commit the 

offense "through the use of force, violence, or by intimidation 

. . . with the intent to cause death or serious bodily harm." 

Castro-Davis, 612 F.3d at 61. Thus, if the jury were to consider 

the use of a gun in the context of only one predicate offense, it 

is likely that it would factor much more heavily into their 

decision on the carjacking.7 

 Accordingly, it would defy common sense to conclude that 

the jury could have found Rodríguez-Santos guilty of aiding and 

abetting the use of a firearm only with respect to the kidnapping 

and not the carjacking. See Foster v. United States, 996 F.3d 

1100, 1107 (11th Cir. 2021), cert. denied, 142 S. Ct. 500 (2021)

(concluding that the valid predicate offenses were "inextricably 

intertwined" with invalid predicates and that there was no 

possibility that the conviction rested only on invalid 

predicates); Stone v. United States, 37 F.4th 825, 832 (2d Cir. 

7 In closing argument, the government did not initially allude 

to the use of a firearm (or Mayol-Rivera's murder) in describing

Rodríguez-Santos's intent to cause serious bodily harm to 

Mayol-Rivera during the carjacking. But, at a later point in its

closing, the government stated, "[t]here is another kind of 

inference that you can make . . . which is, based on how the 

carjacking happened, it could be inferred that they were going to 

murder [Mayol-Rivera]." 
- 26 -

2022), cert. denied, No. 22-5637, 2022 WL 16542129 (Oct. 31, 2022)

(concluding that defendant was not prejudiced by a jury instruction 

including an invalid predicate offense because "the jury found 

facts 'satisfying the essential elements of guilt' on the valid 

predicate" (quoting Laurent, 33 F.4th at 86)); United States v. 

Angiulo, 897 F.2d 1169, 1200 (1st Cir. 1990) (concluding that "even 

though we have found that the accessory charge . . . [is] invalid 

as a predicate act, the nature of the charges and the evidence 

underlying those charges establishes that the jury necessarily 

must have found . . . two valid predicate RICO acts"); Durfee v. 

United States, No. 16-cv-280, 2020 WL 1942324, at *4 (D.N.H. Apr.

20, 2020) ("[W]hen the valid and invalid predicate offenses are 

coextensive, a reasonable probability does not exist that the jury 

convicted based only on the invalid offense."). There are simply 

no reasonable grounds for concluding that the jury could have 

convicted solely on the basis of a connection between the use of 

a firearm and the kidnapping predicate. 

 Therefore, we conclude that the inclusion of the 

potentially invalid predicate offense was not a plain or obvious 

error and that, even if it was error, it would be harmless without 

any effect on Rodríguez-Santos's substantial rights. Hence,

Rodríguez-Santos has failed to satisfy the second and third prongs

of the plain error standard. 
- 27 -

D. Sentencing

Rodríguez-Santos challenges two aspects of his sentence. 

He argues that the district court erred when it failed to impose 

a downward departure based on duress and that the application of 

the obstruction of justice enhancement was unwarranted. 

1. Duress Departure

Rodríguez-Santos contends that the district court should 

have granted him a downward departure per § 5K2.12 of the U.S. 

Sentencing Guidelines Manual ("Sentencing Guidelines"). That 

Sentencing Guidelines section contemplates a downward departure 

"[i]f the defendant committed the offense because of . . . duress, 

under circumstances not amounting to a complete defense." 

U.S.S.G. § 5K2.12 (U.S. Sent'g Comm'n 2004). 

We review a district court's discretionary refusal to 

depart from the guideline range for reasonableness. See United 

States v. Herman, 848 F.3d 55, 58 (1st Cir. 2017). This approach 

accords with a deferential abuse of discretion standard and 

recognizes the "substantial discretion vested in a sentencing 

court." United States v. Flores-Machicote, 706 F 3.d 16, 20 (1st 

Cir. 2013). Here, Rodríguez-Santos offers no substantive 

challenges to the court's decision except to state that "there are 

sufficient out of the ordinary circumstances to warrant a downward 

departure." He does not, however, elaborate on these 

circumstances, or otherwise indicate how the court's decision was 
- 28 -

unreasonable. Therefore, we consider this argument waived. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) 

(explaining that "issues adverted to in a perfunctory manner, 

unaccompanied by some effort at developed argumentation, are 

deemed waived.").8

However, even if this argument was not waived, we would 

affirm the district court's decision not to depart downward as 

reasonable. As noted above, there are no facts in this record

that support a duress defense. See supra. Therefore, there is 

no way the district court could have concluded that 

Rodríguez-Santos mounted an almost complete duress defense as 

required by the downward departure he now seeks. Hence, the 

district court's decision not to depart downward from the guideline 

range was reasonable. See Herman, 848 F.3d at 58.

2. Obstruction of Justice Enhancement

Rodríguez-Santos argues that the district court's 

imposition of a two-point enhancement for obstruction of justice 

under § 3C1.1 of the Sentencing Guidelines was erroneous. Because 

Rodríguez-Santos objected to the obstruction of justice 

8 Although the transcript of the sentencing hearing contains 

no mention of a request for a downward departure, Rodríguez-Santos 

states that he preserved this argument and cites to a transcript 

from a status conference that occurred on March 8, 2019 (the 

sentencing hearing did not occur until December 2019). But 

whether this argument was preserved is irrelevant to our decision 

since Rodríguez-Santos failed to explain how the district court's 

decision not to depart was unreasonable. 
- 29 -

enhancement below, we would ordinarily review the "sentencing 

court's decision for an abuse of discretion." United States v. 

Grullon, 996 F.3d 21, 34 (1st Cir. 2021). 

However, we choose not to address the substance of 

Rodríguez-Santos's arguments because even if the district court 

abused its discretion -- and we are not suggesting that it did --

Rodríguez-Santos was not harmed by the application of the 

enhancement, which did not alter his total offense level. 

Rodríguez-Santos quotes the district court's language in his own 

brief explaining that although the enhancement would increase his 

total offense level from 43 to 45, "Chapter 5 Part A commentary, 

Application Note 2 . . . establishes that in cases in which the 

total offense level is more than 43, the total offense level will 

be treated as an offense level of 43." Hence, there is no basis 

for his claim that the obstruction enhancement affected his 

substantial rights by resulting in a longer sentence. 

Affirmed.