United States v. Nisbett

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
1-26-2005
USA v. Nisbett
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1282
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"USA v. Nisbett" (2005). 2005 Decisions. Paper 1551.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 04-1282 & 04-1283
UNITED STATES OF AMERICA
v.
LEON MARTIN NISBETT
Leon M. Nisbett,
Appellant
On Appeal from the
District Court of the Virgin Islands
(D.C. Criminal Nos. 03-cr-00021 & 02-cr-00125)
District Judge: Honorable Thomas K. Moore
Argued December 13, 2004
Before: SLOVITER, FUENTES, and GREENBERG, Circuit Judges.
(Filed January 26, 2005)
George H. Hodge, Jr. (Argued)
P.O. Box 803
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00804
Attorney for Appellant
Bruce Z. Marshack (Argued)
U.S. Attorney’s Office
1108 King Street, Suite 201
Christiansted, St. Croix
U.S. Virgin Islands 00820
Attorney for Appellee
OPINION OF THE COURT
FUENTES, Circuit Judge.
Leon M. Nisbett was convicted of one federal offense and
one Virgin Islands offense in the District Court of the Virgin
Islands. He was sentenced under the U.S. Sentencing Guidelines
with respect to the federal charge and under the penalty provisions
of the Virgin Islands criminal code for the local charge, with the
sentences running consecutively, as mandated by federal statute.
He contends that the District Court erred in not applying the U.S.
Sentencing Guidelines to both charges, using the most analogous
federal charge to the local charge. He also challenges the
consecutive running of the sentences, arguing that, under the
sentencing guidelines, the charges should be grouped, leading to a
shorter total sentence. We find that the District Court correctly
applied our precedent, in using the federal guidelines for the
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federal charge and the local penalty provisions for the local charge.
Accordingly, the grouping section of the federal guidelines is
inapplicable to the offenses. Therefore, we will affirm the District
Court.
I.
Leon M. Nisbett was arrested while attempting to enter an
adult entertainment bar because the officer conducting a pat-down
search discovered an unlicensed firearm. The serial number on the
firearm had been obliterated. Nisbett admitted that he was carrying
the weapon for protection and had come to the area in order to
purchase drugs.
Nisbett was eventually indicted on both federal and Virgin
Islands charges of unlicensed gun possession. After failing to
appear at his first trial, Nisbett was apprehended in Georgia and
extradited to the Virgin Islands for trial. He was re-indicted for the
gun charges and a federal failure to appear charge was added. A
jury convicted him on the Virgin Islands gun charge and the federal
failure to appear charge, but could not reach a decision on the
federal gun charge.
The probation office prepared a pre-sentencing report, to
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which Nisbett made several objections, including an assertion that
the federal sentencing guidelines (the “Guidelines”) must be
applied to both charges (using the most closely analogous gun
possession charge in the Guidelines as a substitute for the Virgin
Islands charge). The government conceded on a couple of points
regarding the statutory range with respect to the gun charge, but
rejected Nisbett’s Guidelines argument. The District Court agreed
with the government, using the Guidelines to sentence Nisbett for
10 months on the failure to appear charge and the penalty
provisions of the Virgin Islands criminal code to sentence him to
2 years on the gun charge, and ordered that the sentences run
consecutively, as directed by the federal failure to appear statute.
Nisbett appeals his sentence, arguing that the District Court should
have used the Guidelines for both offenses and grouped the charges
under the teachings of the Guidelines.
II.
A. Use of the Guidelines and the Virgin Islands
Criminal Code in the District Court
The question whether, in the District Court of the Virgin
Islands, sentences for local crimes should be determined under the
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penalty provisions of the Virgin Islands Code or the Guidelines
was answered by this Court in Government of the Virgin Islands v.
Dowling, 866 F.2d 610 (1989). Dowling involved a sentencing
before the District Court of the Virgin Islands, as it existed before
the 1993 restriction on its jurisdiction, discussed below. This Court
noted that “[u]nlike United States District Courts, the District Court
of the Virgin Islands adjudicates cases charging violations of both
federal and local law” and that “many offenses against the Virgin
Islands Code may be prosecuted in either the District Court or the
Territorial Court.” Id. at 613. Reasoning that “if the Guidelines
must be used in one court but not in the other, the prosecutor would
have the option of choosing what range of punishment could be
imposed for the particular crime” and that this would be an
anomalous result, we held that “the Sentencing Guidelines do not
apply to violations of the Virgin Islands criminal code committed
in areas within the jurisdiction of the Virgin Islands government.”
Id. at 613-15.
Nisbett argues that the holding of the case was directly tied
to the jurisdictional framework of the District Court of the Virgin
Islands as it existed at that time, and that subsequent changes in
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that framework render its holding without force. Before 1994, the
District Court of the Virgin Islands and the Territorial Court of the
Virgin Islands shared concurrent jurisdiction over local (Virgin
Islands) crimes. See Parrott v. Gov’t of V.I., 230 F.3d 615, 622 (3d
Cir. 2000). However, by a 1993 act of the Virgin Islands
legislature, the District Court was divested of original jurisdiction
over local crimes. Id. “The one limitation on this general
separation of jurisdiction for local criminal matters is when a
charged local crime relates to federal crimes as well. In that
instance, the District Court retains concurrent jurisdiction.” Id. at
622 n.10. Nisbett submits that the change in jurisdiction somehow
transformed the District Court of the Virgin Islands into a District
Court of the United States. He seizes on language in Parrott
discussing the effects of the 1984 amendments to the Virgin Islands
Organic Act, stating that “[b]y virtue of these amendments, the
District Court now possesses the jurisdiction of a ‘District Court of
the United States.’” See Parrott, 230 F.3d at 619. He also reads
the statement in Dowling that “[w]e are persuaded that Congress
intended the Act to regulate sentencing in Article III courts” to
mean that, because the Virgin Islands district court is not an Article
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III court, the Guidelines do not apply in it. See Dowling, at 866
F.2d at 614. Thus, he reasons, now that it is a U.S. district court,
it is an Article III court and the Guidelines must apply to
everything in that court. However, both premises of his argument
are incorrect. The amendments to the Organic Act that caused the
Parrott Court to liken the Virgin Islands court to a U.S. district
court took place in 1984, not in 1993, and thus predated Dowling,
and therefore the idea that the 1993 jurisdictional change
fundamentally alters Dowling’s analysis is flawed. See Parrott,
230 F.3d at 619. Secondly, the Dowling Court’s reference to
Article III courts was made to show why the Guidelines could not
be applied in Territorial Court, in order to explain why they could
not be applied to local crimes in federal court (because of the
inconsistency referred to above).
Accordingly, in United States v. Simmonds, which was
decided after the 1994 change in jurisdiction on facts that took
place after 1994, this Court cited Dowling for the proposition that
“the Sentencing Guidelines do not apply with respect to territorial
criminal offenses tried in the District Court of the Virgin Islands.”
235 F.3d 826, 835 (2000). Thus, under the reasoning detailed
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above and the directly applicable binding precedent of Simmonds,
this Court must reject Nisbett’s argument with respect to the
application of the Guidelines to the Virgin Islands offense, as it
took place within the Virgin Islands.
B. The Consecutive Running of the Sentences
Nisbett also challenges the District Court’s decision to run
his sentences consecutively, arguing that the Guidelines counsel in
favor grouping them and accordingly adjusting the offense level of
the gun charge. He cites to an application note in the Guidelines,
which states that a failure to appear conviction should be treated as
an obstruction of justice conviction (§ 3C1.1) and grouped with a
conviction for the underlying offense and treated under § 5G1.2 of
the Guidelines, which concerns sentencing on multiple counts.
Treated as such, the failure to appear count increases the offense
level of the underlying count by 2 levels. The judge then
determines the “total sentence” from the Guideline range indicated
from the adjusted offense level. Then, when parsing the sentence,
the judge apportions some amount of the sentence to the underlying
count and the rest to the failure to appear charge, in order to satisfy
the consecutive sentencing requirement of 18 U.S.C. § 3146. See
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§ 3146(b)(2) (mandating that sentences for failure to appear
charges be run consecutively to sentences for other charges); see
also United States v. Pardo, 25 F.3d 1187, 1193 (3d Cir. 1994)
(explaining this grouping concept).
The entire argument, however, is framed in a context in
which the Guidelines are applied to the Virgin Islands gun charge,
as requested by Nisbett, but rejected in the previous section of this
opinion. Thus, because the Guidelines should not be applied to
that charge, it is not possible to “group” the charges under the
Guidelines, as the Virgin Islands charge has no offense level,
rendering a 2 level upward adjustment without meaning. For this
reason, the argument must be rejected.
III.
For the reasons explained above, Nisbett’s challenges to the
District Court’s sentencing are without merit. Accordingly, we will
AFFIRM the sentence given by the District Court.
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