United States v. Augustin ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-23-2004
USA v. Augustin
Precedential or Non-Precedential: Precedential
Docket No. 03-2795
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PRECEDENTIAL Alphonso G. Andrews, Jr. (Argued)
Office of the United States Attorney
UNITED STATES COURT OF 1108 King Street, Suite 201
APPEALS Christiansted, St. Croix
FOR THE THIRD CIRCUIT USVI, 00820
Attorney for Appellee
No. 03-2795
OPINION OF THE COURT
UNITED STATES OF AMERICA
v. BARRY, Circuit Judge
REMY AUGUSTIN, Remy Augustin was convicted in
Appellant the District Court of the Virgin Islands of
carjacking, in violation of 18 U.S.C. §
2119, and of possession of a firearm by a
ON APPEAL FROM THE DISTRICT drug user, in violation of 18 U.S.C. §
COURT OF THE VIRGIN ISLANDS 922(g)(3). He asserts, on appeal, that
D.C. Crim. No. 01-cr-00027-2 the government failed to present
District Judge: The Honorable Raymond sufficient evidence to support either of
L. Finch, Chief Judge his convictions under § 2119 or his
conviction under § 922(g)(3). We agree
as to the latter and, thus, will vacate that
Argued: May 7, 2004 conviction. The judgment and sentence
will otherwise be affirmed.1
Before: BARRY, AM BRO, and SMITH, I. BACKGROUND 2
Circuit Judges
1
The District Court had jurisdiction
(Opinion Filed: July 23, 2004)
under 48 U.S.C. § 1612. We have
jurisdiction under 18 U.S.C. § 3742(a)
and 28 U.S.C. § 1291.
Eric S. Chancellor, Esq. (Argued)
Suite 7 2
We express our displeasure at the
2111 Company Street inadequate appendices provided by the
Christiansted, St. Croix parties. Augustin, whose sole argument
USVI, 00820 on appeal is the insufficiency of the
evidence, has provided us with the
Attorney for Appellant testimony of only one witness,
In the early evening of June 28, street with a gun pointed at his head.
1996, Remy Augustin, along with Alex After taking the victim’s money, Robles
DeJesus and Lorenzo “Tito” Robles, ordered him to run, and the three men
were “hanging out” on the steps of a sped away in the victim’s car. According
public housing project, smoking to DeJesus, neither he nor Augustin
marijuana with a group of people. knew that Robles intended to commit a
According to DeJesus, who later pled carjacking, or that Robles had a gun.
guilty and testified for the government, Perhaps not surprisingly, however, given
“[e]verybody smoke marijuana . . . I their camouflage clothing, hiding place,
can’t remember who pass it or however it and masks, DeJesus “ had a feeling I
come [sic].” As the night wore on, the know [sic] what was going on.”
trio split from the group to “go on a run.”
This “run,” which began shortly before It was approximately one o’clock
midnight on June 28 and continued into in the morning when, following a spell of
the early morning hours of June 29, joyriding in the commandeered car, the
resulted in three carjackings involving trio headed to another part of town.
violence, two committed by all three men Fearing that the victim of the earlier
and the third only by Robles and hijacking might have alerted the police to
DeJesus. their crime and provided a description of
the car, the men decided to abandon it.
Augustin, Robles, and DeJesus Robles maneuvered the car to cut off
began their crime spree soon after another driver, forcing him to stop.
splitting from the group. Dressed in Augustin, now carrying the gun, charged
camouflage jackets and wearing stocking the cornered driver, and ordered him into
masks, they crouched behind a row of the back seat. Robles pulled the first car
bushes. Robles, apparently without over to the side of the road, and the three
notice to the others, grabbed a stone and men drove away in the second car, taking
hurled it at a passing car, forcing it to the victim with them.
stop. Robles leapt from behind the
bushes and charged the car. Augustin Believing he was in danger, the
and DeJesus, close on his heels, saw victim jumped out of the car but was
Robles pin the driver face down in the quickly apprehended by Augustin, who
knocked him to the ground, hit him on
the head with the gun, and picked him
up, putting him in the trunk of the car.
cooperating witness DeJesus. The
The trio again drove off, stopping at a
government, for its part, has graced us
beach. The victim was taken out of the
with only parts of the direct and very
trunk, thrown to the ground and beaten,
compelling testimony of the victims,
and made to take off all of his clothes.
neither of which it even identified, and
The three men kicked the now-naked
none of the cross-examination.
2
victim and hit him with their fists. When only the convictions for carjacking and
they were finished, they put him back for possession of a firearm by a drug
into the trunk and drove him to a cliff, user, although the conviction for use of a
where he was taken from the car and his firearm during a crime of violence
hands tied behind his back. One of the would, of necessity, be vacated were his
men said, “Shoot him twice in the head.” challenge to the second carjacking
Another said, “No, let him stand up, let conviction successful.
him run and jump over the cliff.” The
gun was pointed at him, and he heard II. DISCUSSION
someone say to run. The victim ran,
rolling into high grass and screaming so Augustin contends that neither his
that the men would believe that he had, conviction under 18 U.S.C. § 922(g)(3)
in fact, jumped over the cliff. The trio nor his convictions under 18 U.S.C. §
then drove away in the victim’s car. 2119 are supported by sufficient
evidence. We will discuss these
Augustin was arrested and contentions in order, recognizing that, in
prosecuted for his role in the events of reviewing the sufficiency of the
June 28 and 29. Following trial, he was evidence, “we review the evidence in the
convicted of two counts of carjacking light most favorable to the government as
under 18 U.S.C. § 2119; one count of use verdict winner.” United States v.
of a firearm during a crime of violence – Applewhaite, 195 F.3d 679, 684 (3d Cir.
the second carjacking – under 18 U.S.C. 1999) (citing United States v. Stansfield,
§ 924(c); and two counts of possession of 101 F.3d 909, 911 (3d Cir. 1996)). In
a firearm by a drug user under 18 U.S.C. other words, “[o]ur review of the
§ 922(g)(3).3 A sentence of sufficiency of the evidence after a guilty
imprisonment of 135 months was verdict is ‘highly deferential.’” United
imposed on the convictions for States v. Hodge, 321 F.3d 429, 439 (3d
carjacking and possession of a firearm by Cir. 2003) (quoting United States v.
a drug user, to be followed by a Hart, 273 F.3d 363, 371 (3d Cir. 2001)).
mandatory 240 month term of “We must affirm the convictions if a
imprisonment for use of a firearm during rational trier of fact could have found
a crime of violence. Augustin appeals defendant guilty beyond a reasonable
doubt, and the verdict is supported by
substantial evidence.” United States v.
3 Coyle, 63 F.3d 1239, 1243 (3d Cir.
On Augustin’s motion, the District
1995).
Court vacated the § 922(g)(3) conviction
that related to the first carjacking
because Robles, not Augustin, possessed
the firearm. The government does not
appeal this ruling.
3
A. Possession of a Firearm by an Augustin does not dispute that it
Unlawful Drug User was he who carried the gun during the
second carjacking, and it is that
By its terms, 18 U.S.C. § possession which underlies the sole §
922(g)(3) prohibits the possession of a 922(g)(3) count before us, Count 7.
firearm by anyone who “is an unlawful Neither does he dispute that he smoked
user of or addicted to any controlled marijuana on the evening of June 28 or
substance[.]” 18 U.S.C. § 922(g)(3).4 that marijuana is a controlled substance.
“The term ‘unlawful user’ is not See 21 U.S.C. § 812 (listing
otherwise defined in the statute, but tetrahydrocannabinols as a controlled
courts generally agree the law runs the substance in Schedule I(c)(17)). He
risk of being unconstitutionally vague argues, however, that the evidence of his
without a judicially-created temporal single use of marijuana – and the
nexus between the gun possession and government agrees that that is all that the
regular drug use.” United States v. evidence disclosed – was insufficient to
Turnbull, 349 F.3d 558, 561 (8th Cir. prove that he was “an unlawful user of or
2003). addicted to any controlled substance[.]”
18 U.S.C. § 922(g)(3). We agree.
4 Congress chose to criminalize
18 U.S.C. § 922(g)(3) provides in
firearm possession by any person “who is
relevant part:
an unlawful user[.]” Id. (emphasis
added). The use of the present tense was
It shall be unlawful for any
not idle. Quite simply, Congress
person . . . who is an
intended the statute to cover unlawful
unlawful user of or
drug use at or about the time of the
addicted to any controlled
possession of the firearm, with that drug
substance (as defined in
use not remote in time or an isolated
section 102 of the
occurrence.5
Controlled Substances Act
(21 U.S.C. 802)) . . . to
ship or transport in
5
interstate or foreign It was not necessary for the
commerce, or possess in or government to prove that Augustin was
affecting commerce, any smoking marijuana at the very same time
firearm or ammunition; or that he possessed the firearm. See, e.g.,
to receive any firearm or United States v. Mack, 343 F.3d 929, 935
ammunition which has (8th Cir. 2003) (“there is no strict
been shipped or transported temporal element within Section
in interstate or foreign 922(g)(3) that would require the
commerce. (continued...)
4
Those of our sister courts of vagueness challenge and affirming
appeals that have considered 18 U.S.C. § conviction where defendant admitted to
922(g)(3) have concluded, as do we, that using “marijuana on a daily basis . . . for
one must be an unlawful user at or about the past two to three years”).
the time he or she possessed the firearm
and that to be an unlawful user, one There was no evidence that
needed to have engaged in regular use Augustin had ever used drugs prior to the
over a period of time proximate to or single use on June 28, or that he ever
contemporaneous with the possession of used drugs again. All the evidence
the firearm. See Turnbull, 349 F.3d at disclosed was that Augustin used drugs
562 (recognizing the need for a on June 28 and possessed a firearm on
“temporal nexus between regular drug June 29, roughly six hours later. 6 That
use and . . . possession of firearms” to evidence was insufficient to support his
support a conviction under § 922(g)(3)); conviction under 18 U.S.C. § 922(g)(3). 7
United States v. Jackson, 280 F.3d 403,
406 (4th Cir. 2002) (the district court did B. Carjacking
not err in finding that to support a
conviction under § 922(g)(3), the Augustin also asserts that the
government must establish “a pattern of
use and recency of use”). See also 6
United States v. Purdy, 264 F.3d 809, Even assuming that the government
812-13 (9th Cir. 2001) (rejecting a void- established that Augustin’s gun
for-vagueness challenge and stating that possession and his isolated use of
“to sustain a conviction under § marijuana were sufficiently close in time,
922(g)(3), the government must prove . . use of drugs with some regularity is
. that the defendant took drugs with required to support a conviction under 18
regularity, over an extended period of U.S.C. § 922(g)(3). See Jackson, 280
time, and contemporaneously with his F.3d at 406 (“Section 922(g)(3) does not
purchase or possession of a firearm”); forbid possession of a firearm while
United States v. Edwards, 182 F.3d 333, unlawfully using a controlled substance.
336 (5th Cir. 1999) (rejecting a void-for- Rather, the statute prohibits unlawful
users of controlled substances (and those
addicted to such substances) from
possessing firearms.”) (emphasis in
5
(...continued) original).
government to prove that a specific
7
instance of drug use occurred We cannot help but note the pyrrhic
simultaneously with a defendant’s nature of this victory. Given the fact that
firearm possession”); United States v. we will otherwise affirm the judgment
Jackson, 280 F.3d 403, 406 (4th Cir. and sentence, it appears that Augustin’s
2002). sentence will remain unchanged.
5
government failed to present evidence In order to be convicted of
sufficient to support a guilty verdict as to carjacking under 18 U.S.C.
either of his carjacking convictions. As § 2119, the government
to the second carjacking, however, he must prove that the
has, with good reason, utterly failed to do defendant (1) with intent to
more than assert that that is so. cause death or serious
bodily harm (2) took a
We begin by identifying the motor vehicle (3) that had
elements of the federal carjacking been transported, shipped
statute, 18 U.S.C. § 2119:8 or received in interstate or
foreign commerce (4) from
8 the person or presence of
18 U.S.C. § 2119 provides:
another (5) by force and
violence or intimidation.
Whoever, with the intent to
cause death or serious
Applewhaite, 195 F.3d at 684-85
bodily harm takes a motor
(citation and quotations omitted).
vehicle that has been
Augustin would be hard pressed to
transported, shipped, or
challenge his conviction as to either
received in interstate or
carjacking on the second through the
foreign commerce from the
fifth elements, and he does not attempt to
person or presence of
do so. Rather, he directs his efforts only
another by force and
to the first element, that of intent to cause
violence or by intimidation,
death or serious bodily harm, and why, in
or attempts to do so, shall –
his view, the evidence did not support an
intent to cause death or serious bodily
(1) be fined under this title
harm to the victim of the first carjacking,
or imprisoned not more
wholly ignoring the victim of the second
than 15 years, or both,
carjacking. Given the ringing evidence
of his brutalization of the second victim,
(2) if serious bodily injury .
we conclude that no further discussion of
. . results, be fined under
that carjacking is warranted. We turn,
this title or imprisoned not
then, to the first carjacking and whether
more than 25 years, or
the intent element was satisfied.
both, and
“The intent requirement of § 2119
(3) if death results, be fined
under this title or
imprisoned for any number
8
of years up to life, or both, (...continued)
(continued...) or sentenced to death.
6
is satisfied when the Government proves U.S. at 12 (emphasis added);
that at the moment the defendant Applewhaite, 195 F.3d at 685 (quoting
demanded or took control over the Holloway). Thus, it does not matter
driver’s automobile the defendant whether Augustin, when he and Robles
possessed the intent to seriously harm or and DeJesus were crouched in the
kill the driver if necessary to steal the car bushes, planned in his own mind or
(or, alternatively, if unnecessary to steal agreed with the others to commit a
the car).” Holloway v. United States, 526 carjacking. Augustin leapt over the
U.S. 1, 12 (1999). See also Applewhaite, bushes as soon as he saw Robles, with
195 F.3d at 685 (discussing Holloway). gun drawn, manhandle the driver of a
Accordingly, we must determine passing car. Augustin, at that moment,
whether, at the precise moment Augustin ratified all that Robles was doing,
“demanded or took control” of the first leaving no doubt that, as the Court put it
victim’s car “by force and violence or in Holloway, he “would have at least
intimidation,” he had the proscribed state attempted to seriously harm or kill the
of mind. driver if that action had been necessary
to complete the taking of the car.”
Augustin, relying on DeJesus’s Holloway, 526 U.S. at 12. He could have
testimony, asserts that neither he nor fled. He could have attempted to stop
DeJesus knew in advance that Robles Robles. What he chose to do, however,
intended to commit a carjacking or that was follow on Robles’s heels and then
Robles had a gun. Therefore, he drive away in the victim’s car with
contends, given this paucity of Robles and DeJesus.
knowledge, he could not have had the
intent “to seriously harm or kill.” The evidence was sufficient to
Holloway, 526 U.S. at 12. We reject this support Augustin’s convictions on both
contention. counts of carjacking.
To be sure, it was Robles who III. CONCLUSION
initiated the first carjacking and it was
Robles who carried the gun, with We will vacate Augustin’s
Augustin and DeJesus, although hiding conviction under 18 U.S.C. § 922(g)(3)
and disguised in camouflage clothing and (Count 7) and will otherwise affirm the
masks, purportedly ignorant of what was judgment and sentence.
to ensue. But as the Supreme Court
emphasized in Holloway, and as we
recognized in Applewhaite, a carjacker’s
intent is assessed “at the moment [he]
demanded or took control over the
driver’s automobile[.]” Holloway, 526
7