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.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

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Before

Lynch, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lipez, Circuit Judge.

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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. LorenzoHernández 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 MartinezCorrea, 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, PeñaMorfe 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, LorenzoHernández 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
1 If this one-level enhancement were not applied, LorenzoHernández 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 thirtytwo 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
2 On the other hand, Lorenzo-Hernández points to other language

of the trial judge, contained in the judge's denial of LorenzoHernández's motion for acquittal or a new trial, that "defendant's role

in the conspiracy began when the victim was moved from [AcostaMolina]'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.