                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-2005

Govt of VI v. Warner
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3640




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                                                                 NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No. 04-3640

                    GOVERNMENT OF THE VIRGIN ISLANDS

                                         Appellant,

                                              v.

                                 JEFFREY WARNER,

                                   _______________

                On appeal from the District Court of the Virgin Islands,
                                   Appellate Division
            District Court Crim. App. 2002-23; 2003-24; 2003-25; 2003-26
            District Judge: The Honorable Raymond L. Finch, Chief Judge
                   District Judge: The Honorable Thomas K. Moore;
                    Territorial Judge: The Honorable Edgar D. Ross
                                   _______________

                          Submitted Pursuant to LAR 34.1(a)
                                   April 20, 2005
                                 _______________

             Before: NYGAARD, RENDELL, and SMITH Circuit Judges

                                 (Filed: May 24, 2005)

                                ____________________

                              OPINION OF THE COURT
                               ____________________

SMITH, Circuit Judge.

      In this appeal, the Government of the Virgin Islands asks this Court to overrule a
recent precedential decision holding that we lack jurisdiction over a judgment of the

Appellate Division of the District Court of the Virgin Islands vacating and remanding a

Territorial Court criminal sentence. Additionally, the Government of the Virgin Islands

requests that we hold that the Appellate Division of the District Court of the Virgin

Islands lacked subject matter jurisdiction over this case. We will decline both invitations.

                                             I.

       After pleading guilty to three counts of aggravated rape and one count of second

degree murder, Appellee Jeffrey Warner was sentenced by the Territorial Court of the

Virgin Islands to four consecutive life sentences. Warner timely appealed to the

Appellate Division of the District Court of the Virgin Islands.

       The Appellate Division exercised jurisdiction under a provision of the Revised

Organic Act, 48 U.S.C. § 1613(a) (2004), which confers jurisdiction where a litigant

challenges a judgment or order under the Constitution, treaties, or laws of the United

States. While Warner’s attack on his life sentence for second degree murder did “not

specifically refer to any provision of the Constitution or federal law,” the Appellate

Division determined that his claim “clearly raise[d] concerns surrounding constitutional

due process.” This “colorable constitutional claim” was sufficient to trigger jurisdiction,

the Appellate Division concluded.

       On the merits, the Appellate Division held that the Territorial Court wrongly

sentenced Warner to life for second degree murder because 14 V.I.C. § 923(b), on which



                                             2
the Court based its sentence, did not expressly provide for a life sentence.1 The Appellate

Division principally relied on Ruiz v. United States, which held that the mandate of § 923

“is to impose life imprisonment for first degree murder and imprisonment for a fixed

definite term of years, and that only, for murder in the second degree.” 365 F.2d 500, 501

(3d Cir. 1966). Subsequent amendments to § 923(a) enhancing the penalty for first

degree murder to life imprisonment without the possibility of parole did not vitiate the

holding in Ruiz, the Appellate Division explained. As a remedy, the Appellate Division

vacated Warner’s life sentence for second degree murder and remanded his case to the

Territorial Court for resentencing.

          The Government of the Virgin Islands seeks to appeal the Appellate Division’s

exercise of subject matter jurisdiction over Warner’s case and the merits of the Appellate

Division’s ruling that Warner was improperly sentenced. To reach the latter question, the

Government of the Virgin Islands concedes that this Court must overrule its decision in

Government of the Virgin Islands v. Rivera, 333 F.3d 143, 144 (3d Cir. 2003), cert.

denied, 540 U.S. 1161 (2004), which held that the Third Circuit has no jurisdiction over



  1
      In full, the statute provides:

                  Whoever commits murder in the second degree shall be imprisoned
                  for not less than five (5) years, provided, that if such second degree
                  murder was perpetrated upon a law enforcement officer while such
                  officer was engaged in the performance of his official duties, the
                  perpetrator shall be imprisoned for not less than ten (10) years.

          14 V.I.C. § 923(b) (2004).

                                                    3
the Appellate Division’s remand of a criminal case for resentencing. Assuming that this

Court refuses to overrule Rivera (and therefore lacks jurisdiction over the merits of the

Appellate Division’s decision), the Government of the Virgin Islands asks us to apply the

collateral order doctrine to reach the question whether the Appellate Division properly

assumed subject matter jurisdiction over Warner’s appeal.


                                            II.

                                            A.

       We face today the same question we answered in Rivera: Does this Court have

jurisdiction over the Appellate Division’s remand of a criminal case for resentencing?

We explained in Rivera that “federal courts of appeals are limited to reviewing final

decisions, judgments, and orders.” 333 F.3d at 147. That principle holds true for appeals

from the Appellate Division under 48 U.S.C. § 1613a(c), which establishes jurisdiction in

this Court for appeals from “final decisions” of the District Court of the Virgin Islands.

Id. In Rivera, as here, the Government of the Virgin Islands argued that jurisdiction for

appeals from remands by the Appellate Division for resentencing is supplied by 48 U.S.C.

§ 1493(c), which provides that

              [t]he prosecution in a territory or Commonwealth is authorized
              – unless precluded by local law – to seek review or other suitable
              relief in the appropriate local or Federal appellate court, or,
              where applicable, in the Supreme Court of the United States,
              from–an adverse decision, judgment or order of an appellate
              court.



                                             4
Id. at 147. Although, as we cautioned in Rivera, this provision “appears to grant broad

authority to the Government of the Virgin Islands to pursue an appeal,” it is silent on

whether an adverse decision, judgment, or order must be final to perfect an appeal to the

Third Circuit. Id. Ultimately, we held that § 1493(c)’s silence on whether finality is

required fails to overcome the general rule that federal courts of appeals may consider

only final decisions, judgments, and orders. Id. at 148. We therefore concluded that we

lacked jurisdiction to review the Appellate Division’s remand of a criminal case for

resentencing.

       We do not lightly overturn precedential decisions. As the Government

acknowledges, “[i]t is the tradition of this Court that the holding of a panel in a

precedential opinion is binding on subsequent panels. Thus, no subsequent panel

overrules the holding in a precedential opinion of a previous panel. Court en banc

consideration is required to do so.” Third Circuit IOP 9.1. Further, an en banc hearing

“is not favored and ordinarily will not be ordered unless (1) en banc consideration is

necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding

involves a question of exceptional importance.” Fed. R. App. P. 35(a). As our IOP 9.2

explains, this Court will grant initial en banc rehearing only when a majority of active,

qualified judges determines that a prior decision should be reconsidered, and “the case is

of such immediate importance that exigent circumstances require initial consideration by

the full court.”



                                              5
       Rather than petition the full Court for an initial hearing en banc, the Government

of the Virgin Islands apparently seeks to recruit the members of this panel to lobby the

full Court for en banc rehearing. “By its argument,” the Government’s brief explains,

“the Government intends to preserve the issue [of overturning Rivera] and hopes to win

three votes in favor of in banc [sic] rehearing.” Even if this inventive approach to

securing an initial en banc hearing was permissible – and we are by no means convinced

that it is – we would not “vote” or otherwise recommend that the full Court revisit Rivera

because the Government of the Virgin Islands wholly fails to show that this appeal

presents a question of exceptional importance. See Fed. R. App. P. 35(a).

       The Government of the Virgin Islands seems to be of two minds. In one breath,

the Government argues that much is at stake if Rivera stands. In addition to the danger of

causing judicial waste, the Government contends that Rivera threatens to force

“prosecutors [to] lose the right to appeal at all after remand or retrial, thus leaving bad

law on the books as binding precedent that can never be appealed and corrected.” Yet, a

few lines later, the Government concedes that Rivera “was the first appeal to this Court in

which the Territorial Government had no authority to appeal other than § 1493(c).” In

other words, the Government explains, “very few” adverse rulings are not appealable

under another statute. This is not the strongest combination of arguments we have heard

for convening this Court en banc to consider overturning our precedent. Similarly, the

Government argues that “Rivera’s insertion of a finality requirement into § 1493(c) guts



                                               6
the statute and renders it useless,” yet concedes a few lines earlier that “in the 20 years

that the statute has been on the books, the Third Circuit has never once relied upon §

1493(c) for jurisdiction.”

       The Government cannot have it both ways. Either Rivera threatens dire

consequences or it does not. The Government’s acknowledgment that “very few” rulings

would be affected by reversing Rivera and that § 1493 was “never” used by this Court in

the nearly 20 years before Rivera convince us that the latter is likely the case. No matter

of exceptional importance is presented here.

                                              B.

       If the Government of the Virgin Islands cannot convince us to reconsider Rivera, it

asks that we hold that the Appellate Division lacked subject matter jurisdiction over this

case. According to the Government, Warner’s guilty plea negated any opportunity to

appeal to the Appellate Division under local law. Under 4 V.I.C. § 33, “[t]he district

court has appellate jurisdiction to review the judgments and orders of the territorial court

in all civil cases . . . and in all criminal cases in which the defendant has been convicted,

other than on a plea of guilty.” The Government concedes that this limitation may not

“preclude the review of any judgment or order which involves the Constitution, treaties,

or laws of the United States,” 48 U.S.C. § 1613a(a), but argues that Warner presented no

colorable constitutional claim to the Appellate Division.

       The threshold question for this Court is whether, having determined that we lack



                                               7
jurisdiction over the merits question presented in Warner’s appeal, we nonetheless may

rule on whether the Appellate Division possessed subject matter jurisdiction over

Warner’s case. We hold that we may under the collateral order doctrine. As we recently

explained, “an appeal of a nonfinal order will lie if (1) the order from which the appellant

appeals conclusively determines the disputed question; (2) the order resolves an important

issue that is completely separate from the merits of the dispute; and (3) the order is

effectively unreviewable on appeal from a final judgment.” Government of the Virgin

Islands v. Hodge, 359 F.3d 312, 319 (3d Cir. 2004) (quoting In re Ford Motor Co., 110

F.3d 954, 958 (3d Cir. 1997)).

       In Hodge, we reviewed the Appellate Division’s determination of its own

jurisdiction even though we lacked jurisdiction to consider the merits of the Appellate

Division’s order concerning an interlocutory appeal. Id. at 320. Applying the prongs of

the collateral order test, we concluded, first, that the Appellate Division’s order

conclusively determined its jurisdiction over the type of interlocutory appeal presented in

that case; second, that the question of the Appellate Division’s jurisdiction was separate

from the merits of the case and important enough to consider because, third, the order

otherwise was “procedurally” unreviewable. “[O]nly in the most convoluted and

improbable of hypotheticals,” we reasoned, “will the jurisdictional issue presented here

ever make its way to this Court on appeal from a final decision.” Id. at 321.2

  2
   We also noted that the issue was important enough to consider under the collateral order
doctrine because issues involving the scope of federal jurisdiction are institutionally significant.

                                                  8
       The factors present in Hodge militate in favor of our review of the Appellate

Division’s exercise of jurisdiction over the present case. There is no doubt that the

Appellate Division’s order conclusively determined its jurisdiction over an appeal from a

Territorial Court’s sentence, raising an allegedly colorable constitutional issue, where the

defendant pled guilty. Similarly, whether the Appellate Division has jurisdiction over

Warner’s appeal plainly is a separate question from the merits of his putative

constitutional attack on his sentence. Finally, the Appellate Division’s jurisdiction over

Warner’s appeal is “procedurally” unreviewable. That is because, after resentencing in

the Territorial Court, it is improbable that Warner will present a merely “colorable” due

process argument (assuming he has such an argument) to the Appellate Division on his

second effort to appeal his sentence (assuming he makes such an effort). As in Hodge,

“[w]e think it imprudent to let pass a ruling of such moment without examining, if we

can, whether the court making the ruling even had jurisdiction.” Id. at 321 n.7.

       We conclude that the Appellate Division properly exercised jurisdiction over this

case.3 The Government is correct that the Appellate Division of the District Court of the

Virgin Islands hears appeals from the Territorial Court under limits established by local

law. Hodge, 359 F.3d at 315-16. It is also true, however, that local law “may not

preclude the review [in the Appellate Division] of any judgment or order which involves


Hodge, 359 F.3d at 321, 322.
  3
   We exercise plenary review over questions of the Appellate Division’s jurisdiction.
Government of the Virgin Islands v. Warner, 48 F.3d 688, 691 (3d Cir. 1995).

                                               9
the Constitution, treaties, or laws of the United States.” 48 U.S.C. § 1613a(a); Warner,

48 F.3d at 691. Here, the Appellate Division correctly concluded that Warner’s claim

“raises concerns surrounding constitutional due process.”

       Though not couched in constitutional terms, Warner’s attack on his life sentence as

statutorily excessive is a colorable due process argument. See Warner, 48 F.3d at 692

(holding that appellant implicitly alleged a violation of due process in the court’s reneging

on an alleged sentencing agreement). In Williams v. Oklahoma, the Supreme Court held

in relevant part that a death sentence imposed for kidnaping was not disproportionate to

the crime, and thus was not a violation of due process. 358 U.S. 576, 586 (1959). “[T]he

Due Process Clause of the Fourteenth Amendment does not, nor does anything in the

Constitution, require a State to fix or impose any particular penalty for any crime it may

define,” the Court explained. Id. “[W]e cannot say,” the Williams Court concluded, “that

the sentence to death for the kidnaping, which was within the range of punishments

authorized for the crime by the law of the state, denied to petitioner due process of law or

any other constitutional right.” Id. at 586-87. Under Williams, Warner’s argument that

14 V.I.C. § 923 does not contemplate a life sentence for second degree murder amounts to

a colorable due process claim. Cf. Gov’t of the Virgin Islands v. Quetel, 45 Fed. Appx.

174, 177 (3d Cir. 2002) (holding that Appellate Division lacked jurisdiction over motion

to reduce sentence because sentence was “clearly within the statutory guidelines

applicable to her crimes” and thus raised no due process issue under Williams).



                                             10
                                           III.

       For the foregoing reasons, we will affirm the Appellate Division’s holding

regarding its own jurisdiction. We will dismiss the appeal with respect to the merits of

Warner’s attack on his sentence, however, because we lack jurisdiction over that

question.




                                            11
