                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                       NOT PRECEDENTIAL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



                                  5
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



                                  6
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



                                 7
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



                                  8
§ 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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