O’BRIEN,
Chief Judge
MEMORANDUM OPINION
The issue before us exists because of this Court’s unique jurisdiction to hear both federal and territorial criminal matters. We decide whether a violation of 18 U.S.C. § 922(g) is subject to the enhancement provisions of 18 U.S.C. § 924(c) when it occurred during a “crime of violence” not otherwise punishable by federal law. We hold that it does not, and we will sentence accordingly.
I. FACTS
The defendant, Howard James was tried with two co-defendants, Antonio Frett and Elias Petersen on multiple counts arising from a firearms incident which occurred at the Ralph de Chabert Project
on St. Croix.
This altercation resulted in a 5 count information being brought by the Government of the Virgin Islands against James, two counts of which were for assault with intent to commit murder in violation of 14 V.I.C. § 295(1);
and one count of which was for assault which inflicted bodily harm in violation of 14 V.I.C. § 297(4).
The final two Virgin Islands counts were for unauthorized use and possession of unlicensed firearms during a crime of violence in violation of 14 V.I.C. § 2253(a), (b).
Additionally, the United
States of America brought a one count charge against James for the unauthorized possession of a firearm transported in interstate commerce in violation of 18 U.S.C. § 922(g),
for which it seeks to apply the enhanced penalty provision of 18 U.S.C.A. § 924(c)(1).
The jury returned guilty verdicts upon all five territorial counts and the sole federal charge. It specifically found that James was in possession of a machine gun as defined by both territorial and federal law.Thereafter, the parties briefed the sentencing issue and the Government of the Virgin Islands brought an habitual criminal information against James pursuant to 14 V.I.C. § 61.
James now challenges the application of the enhanced penalty provision of 18 U.S.C. § 924(c) for want of a conviction of a “federal crime of violence” cognizable in the courts of the United States. The United States of America seeks application of § 924(c)(1) suggesting that the conviction under § 922(g) satisfies the federal crime of violence component of § 924(c), and that in any case, we may resort to James’ territorial convictions for establishment of the “crime of violence” component. We address the issue at length because if applicable, § 924(c) would appear to mandate us to sentence James to a 10-year sentence to run consecutively with the sentence imposed upon the territorial convictions.
II. DISCUSSION
The operative language of 18 U.S.C. § 924(c) provides for enhanced punishment for incidents involving the use or possession of a firearm (here, machine gun) during a “crime of violence.” As relevant to this case, a crime of violence is a felony, that “. . . has as an element the use ... of physical force against the person . . .” and which “. . . may be prosecuted in a court of the United States.” See supra, note 6. Such language appears straightforward.
However, as applied to a certain class of cases prosecuted in this Court, to which the case at bar belongs, there is ambiguity with respect to the meaning of the phrase “may be prosecuted in a court of the United States.” This is because the District Court of the Virgin Islands is not a United States District Court; Esposito v.
Barnard, 842 F.2d 393 (3d Cir. 1988) (en banc); nor is it defined as a court of the United States by the U.S. Code. See 28 U.S.C.A. § 451 (1968). It does possess all the jurisdiction of a United States District Court in addition to its jurisdiction over offenses against local law. 48 U.S.C.A. § 1612 (Supp. 1987). Thus, when as in this case, an accused stands trial before us simultaneously on unmerged federal and territorial counts arising out of the same incident, the issue is whether the language “may be prosecuted in a court of the United States” encompasses a crime of violence against the laws of the Virgin Islands which may be prosecuted in the District Court of the Virgin Islands.
The U.S.A. contends that we need not resolve this question because James’ violation of § 922(g) is a “crime of violence” within the meaning of § 924(c)(3) especially in light of the violent behavior in this case. We reject this contention. In United States v. Cruz, 805 F.2d 1464 (11th Cir. 1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631 (1987), the Eleventh Circuit made a careful analysis of the statutory phrase “crime of violence”, using all of the statutory tools of construction after finding the phrase ambiguous. In so doing, it rejected a case by case approach urged by the government in that case, and similar to that urged by the U.S.A. here. Additionally, it rejected an argument put forward by the defendant Cruz, and proposed here by James, that we must look to whether the predicate crime of violence necessarily requires the use of force. Id. at 1469-70.
We conclude likewise that the phrase “crime of violence” is hopelessly ambiguous and we need only refer to the Cruz court’s discussion to suggest why. 805 F.2d at 1469-75. Little legislative history, no case law and unclear language leaves us with no understanding of Congressional intent. All we have is a short statement in the legislative history suggesting that Congress had in mind similar incidents as punished by state law, i.e., assault and battery. 1984 Cong, and Ad. New 3487. Yet this does not tell us whether possession itself in violation of § 922(g) is sufficient to require enhancement under § 924 when it occurs during a crime of violence punishable only by local law. Common sense tells us that it does not simply because it would make James accountable for
possession of a firearm during a crime of violence that the laws of the United States are not particularly interested in sanctioning.
This does not trouble the U.S.A. It refers us to United States v. Gironda, 758 F.2d 1201 (7th Cir. 1985), cert. denied, 481 U.S. 1006, 106 S.Ct. 523 (1986).
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O’BRIEN,
Chief Judge
MEMORANDUM OPINION
The issue before us exists because of this Court’s unique jurisdiction to hear both federal and territorial criminal matters. We decide whether a violation of 18 U.S.C. § 922(g) is subject to the enhancement provisions of 18 U.S.C. § 924(c) when it occurred during a “crime of violence” not otherwise punishable by federal law. We hold that it does not, and we will sentence accordingly.
I. FACTS
The defendant, Howard James was tried with two co-defendants, Antonio Frett and Elias Petersen on multiple counts arising from a firearms incident which occurred at the Ralph de Chabert Project
on St. Croix.
This altercation resulted in a 5 count information being brought by the Government of the Virgin Islands against James, two counts of which were for assault with intent to commit murder in violation of 14 V.I.C. § 295(1);
and one count of which was for assault which inflicted bodily harm in violation of 14 V.I.C. § 297(4).
The final two Virgin Islands counts were for unauthorized use and possession of unlicensed firearms during a crime of violence in violation of 14 V.I.C. § 2253(a), (b).
Additionally, the United
States of America brought a one count charge against James for the unauthorized possession of a firearm transported in interstate commerce in violation of 18 U.S.C. § 922(g),
for which it seeks to apply the enhanced penalty provision of 18 U.S.C.A. § 924(c)(1).
The jury returned guilty verdicts upon all five territorial counts and the sole federal charge. It specifically found that James was in possession of a machine gun as defined by both territorial and federal law.Thereafter, the parties briefed the sentencing issue and the Government of the Virgin Islands brought an habitual criminal information against James pursuant to 14 V.I.C. § 61.
James now challenges the application of the enhanced penalty provision of 18 U.S.C. § 924(c) for want of a conviction of a “federal crime of violence” cognizable in the courts of the United States. The United States of America seeks application of § 924(c)(1) suggesting that the conviction under § 922(g) satisfies the federal crime of violence component of § 924(c), and that in any case, we may resort to James’ territorial convictions for establishment of the “crime of violence” component. We address the issue at length because if applicable, § 924(c) would appear to mandate us to sentence James to a 10-year sentence to run consecutively with the sentence imposed upon the territorial convictions.
II. DISCUSSION
The operative language of 18 U.S.C. § 924(c) provides for enhanced punishment for incidents involving the use or possession of a firearm (here, machine gun) during a “crime of violence.” As relevant to this case, a crime of violence is a felony, that “. . . has as an element the use ... of physical force against the person . . .” and which “. . . may be prosecuted in a court of the United States.” See supra, note 6. Such language appears straightforward.
However, as applied to a certain class of cases prosecuted in this Court, to which the case at bar belongs, there is ambiguity with respect to the meaning of the phrase “may be prosecuted in a court of the United States.” This is because the District Court of the Virgin Islands is not a United States District Court; Esposito v.
Barnard, 842 F.2d 393 (3d Cir. 1988) (en banc); nor is it defined as a court of the United States by the U.S. Code. See 28 U.S.C.A. § 451 (1968). It does possess all the jurisdiction of a United States District Court in addition to its jurisdiction over offenses against local law. 48 U.S.C.A. § 1612 (Supp. 1987). Thus, when as in this case, an accused stands trial before us simultaneously on unmerged federal and territorial counts arising out of the same incident, the issue is whether the language “may be prosecuted in a court of the United States” encompasses a crime of violence against the laws of the Virgin Islands which may be prosecuted in the District Court of the Virgin Islands.
The U.S.A. contends that we need not resolve this question because James’ violation of § 922(g) is a “crime of violence” within the meaning of § 924(c)(3) especially in light of the violent behavior in this case. We reject this contention. In United States v. Cruz, 805 F.2d 1464 (11th Cir. 1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631 (1987), the Eleventh Circuit made a careful analysis of the statutory phrase “crime of violence”, using all of the statutory tools of construction after finding the phrase ambiguous. In so doing, it rejected a case by case approach urged by the government in that case, and similar to that urged by the U.S.A. here. Additionally, it rejected an argument put forward by the defendant Cruz, and proposed here by James, that we must look to whether the predicate crime of violence necessarily requires the use of force. Id. at 1469-70.
We conclude likewise that the phrase “crime of violence” is hopelessly ambiguous and we need only refer to the Cruz court’s discussion to suggest why. 805 F.2d at 1469-75. Little legislative history, no case law and unclear language leaves us with no understanding of Congressional intent. All we have is a short statement in the legislative history suggesting that Congress had in mind similar incidents as punished by state law, i.e., assault and battery. 1984 Cong, and Ad. New 3487. Yet this does not tell us whether possession itself in violation of § 922(g) is sufficient to require enhancement under § 924 when it occurs during a crime of violence punishable only by local law. Common sense tells us that it does not simply because it would make James accountable for
possession of a firearm during a crime of violence that the laws of the United States are not particularly interested in sanctioning.
This does not trouble the U.S.A. It refers us to United States v. Gironda, 758 F.2d 1201 (7th Cir. 1985), cert. denied, 481 U.S. 1006, 106 S.Ct. 523 (1986). There the Seventh Circuit interpreted an earlier version of § 924(c) which prohibited the unlawful possession of a firearm during the commission of any felony which may be prosecuted in a court of the United States. The Gironda court joined another Circuit in holding that it was proper to define the term “unlawful” by resorting to state law. Id. at 1214. The U.S.A. here wishes us to do the same with the phrase “crime of violence.”
This solution might be tempting except that as noted above, § 924(c)(3) partly defines a crime of violence as a felony. As the Gironda court noted in discussing the earlier version of the statute, the § 924(c) conviction required both a violation of a state firearm law and a concurrent commission of a federal felony. That court as well as most others interpreted the phrase “felony which may be prosecuted in a court of the United States” as meaning a federal felony. See, e.g., Busic v. United States, 446 U.S. 398 (1979).
Application of this federal felony interpretation here would require us to focus on the felony part of the crime of violence, and allows us to distinguish between our role as a court of the United States
and our role as a local court. This is important because we do not believe that Congress intended to implicate our jurisdiction over offenses of local law in the enhancement provisions of § 924(c), since this would unduly distinguish prosecutions of § 924(c) violations in this Court and those in the United States District Courts.
To us, this is the sensible interpretation and the one we choose to follow since the crime of violence component will always be some sort of assault, battery or the like punishable by local law. The issue, therefore, becomes whether the violence, and possession of the firearm, is incident to the perpetration of a federal felony, i.e., assault of a federal officer as opposed to a local police officer. This would preclude the necessity of references to local law to define the crime of violence component since what would matter is whether the predicate felony is proscribed by the laws of the
United States, not whether the felonious crime of violence may be prosecuted in this Court.
This also proscribes application of § 924(c) enhancement provisions to James’ § 922(g) violations because it is clear that his possession of the machine gun during this violent assault was not incident to a federal felony to which Congress wanted to apply § 924(c) provisions. In other words, we do not believe James’ conduct, i.e., assault proscribed only by local law, is the kind which Congress intended to be covered by this enhancement provision. See discussion, supra at 437-39. In any case, because of the unresolved ambiguity we will also rely on the rule of lenity as the Cruz court did in so ruling. 805 F.2d at 1474.
III. CONCLUSION
We have determined that in order to apply the enhancement provisions of 18 U.S.C. § 924(c) in this Court, the possession of the firearm during a crime of violence must occur incident to a federal felony. In the context of this case, we do not believe Congress intended for the provisions to apply. Thus, we will sentence accordingly.