United States v. Augustin

• Court: Court of Appeals for the Third Circuit
• Decided: July 23, 2004
• Docket: 03-2795
• Status: Published

Opinion

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USA v. Augustin Precedential or Non-Precedential: Precedential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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This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. 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