                                                                                                                           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Precedential or Non-Precedential: Precedential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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"USA v. Augustin" (2004). 2004 Decisions. Paper 432.
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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
