                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                   No. 09-1296
                                  ____________

                               GOV‟T OF THE V.I.

                                        v.

                               GABRIEL JOSEPH,

                                                   Appellant
                                  ____________

                         On Appeal from the District Court
                     of the Virgin Islands – Appellate Division
                               Division of St. Thomas
                            (D.C. No. 3-05-cr-00013-001)
                   District Judges: Honorable Raymond L. Finch
                           and Honorable Curtis V. Gomez
                Superior Court Judge: Honorable Francis J. D‟Eramo
                                   ____________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                December 5, 2011

          Before: FISHER, GREENAWAY, JR. and ROTH, Circuit Judges.

                             (Filed: January 10, 2012)
                                  ____________

                           OPINION OF THE COURT
                                ____________

FISHER, Circuit Judge.
       Gabriel Joseph (“Joseph”) appeals from the District Court of the Virgin Islands

Appellate Division‟s affirmance of his conviction for possession of stolen property, in

violation of 14 V.I.C. § 2101(a). For the reasons discussed below, we will affirm.

                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On March 21, 2004, Joseph was arrested and charged with one count of possession

of stolen property valued at more than one hundred dollars, in violation of 14 V.I.C.

§ 2101(a). The property in question consisted of four unique 17-inch alloy star-shaped

automobile tire rims that were unlawfully removed from a 1991 Infinity Q45 owned by

Garrah Alqade.1 On August 5, 2004, the Government filed a Habitual Offender

Information, notifying the trial court that if Joseph was found guilty, the Virgin Islands

Government would request a sentencing enhancement under 14 V.I.C. § 61(a). On

August 10, 2004, after a thirty-minute deliberation, the jury convicted Joseph. Pursuant

to the habitual offender statute, the trial court applied the sentencing enhancement, and

Joseph was sentenced to a term of ten years‟ imprisonment. The District Court affirmed

the trial court‟s conviction and sentence. Joseph filed a timely appeal.




       1
           Garrah Alqade is also known as “Jerrah Elgadi.”

                                              2
                                             II.

       Pursuant to 48 U.S.C. § 1613a(a), the District Court properly exercised appellate

jurisdiction over an appeal from the Virgin Islands Territorial Court. This Court has

jurisdiction under 48 U.S.C. § 1613a(c).

                                             III.

                                             A.

       Joseph first claims that there was insufficient evidence to support a guilty verdict.

Ordinarily, we must uphold the verdict if, “after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v. Coleman, 862 F.2d

455, 460 (3d Cir. 1988) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

However, because Joseph failed to preserve the issue for appeal, we review his claim for

plain error. See United States v. Powell, 113 F.3d 464, 466-67 (3d Cir. 1997). “A

conviction based on insufficient evidence is plain error only if the verdict „constitutes a

fundamental miscarriage of justice.‟” United States v. Thayer, 201 F.3d 214, 219 (3d Cir.

1999) (citation omitted). We conclude that, viewing the evidence in the light most

favorable to the prosecution, Joseph‟s conviction was supported by sufficient evidence,

and most certainly did not constitute plain error.

       To convict Joseph for possession of stolen property in violation of 14 V.I.C.

§ 2101(a), the Government was required to prove: (1) that the defendant bought,


                                              3
received or possessed property; (2) that the property was obtained in an unlawful manner;

(3) that the defendant knew or had cause to believe that the property was obtained in an

unlawful manner; and (4) that the property had a minimum value of one hundred dollars.

       First, there was sufficient evidence that Joseph bought or possessed the tire rims.

Victor Heyliger, an employee of Alqade, who had ordered the unique rims for Alqade‟s

car, testified that after the rims disappeared, he saw Joseph driving a van with two of the

rims on the rear of the van. A police officer also testified that the license plate for the van

was registered to Joseph. Furthermore, Joseph testified that he purchased “some rims”

for two hundred dollars from Rico Rivera. This evidence was sufficient for a reasonable

jury to find that Joseph bought or possessed the tire rims. Second, there was also ample

evidence that the property was obtained in an unlawful manner. At least one witness

testified that the rims were stolen, and Alqade‟s nephew reported the theft to the police.

       The third element, that the defendant knew or had cause to believe that the

property was obtained in an unlawful manner, was sufficiently proven by substantial

circumstantial evidence. United States v. McNeill, 887 F.2d 448, 450 (3d Cir. 1989)

(holding the jury may draw inferences from facts produced at trial “when no direct

evidence is available[,] so long as there exists a logical and convincing connection

between the facts established and the conclusion inferred”). Officer Stanley testified that

when he approached Joseph to talk with him, Joseph fled the scene. See United States v.

Miles, 468 F.2d 482, 489 (3d Cir. 1972) (evidence of flight is admissible as


                                              4
circumstantial evidence of guilt, although it cannot be dispositive of the issue). Joseph

also told the police that the owner of the car wanted to drop the charges, which indicated

Joseph had actual knowledge of the owner because the police had never told Joseph who

owned the tire rims. Additional testimony showed that Joseph was an auto detailer with

knowledge of automobile rims, he frequented Alqade‟s business where the tire rims were

located, and he purchased the significantly damaged rims for a price substantially lower

than their market value. From these facts, the jury could have drawn the logical inference

that Joseph knew the unique rims were valuable, he saw them at Alqade‟s business, and

he had “cause to believe” the rims were stolen based on the damage to the rims and the

low price.

       Fourth, there was also sufficient evidence to show that the stolen property had a

value equal to or higher than one hundred dollars. Heyliger testified that Alqade paid

about $1,700 for the rims. Nidal Qoed testified that the value of the rims in December

2003 was approximately $1,000. Finally, Joseph testified that he paid two hundred

dollars for the rims, despite severe damage to two of the rims. This evidence was

sufficient for the jury to conclude that the value of the rims was equal to or more than one

hundred dollars.

                                            B.

       Joseph alleges that trial counsel‟s failure to raise a Rule 29 motion for judgment of

acquittal constituted ineffective assistance of counsel. As a general matter, we do not


                                             5
entertain claims of ineffective assistance of counsel on direct appeal. Gov’t of V.I. v.

Lewis, 620 F.3d 359, 371 (3d Cir. 2010). However, Joseph‟s case falls under the narrow

exception allowing such a claim on direct appeal because the “record is sufficient to

allow determination of ineffective assistance of counsel.” United States v. Headley, 923

F.2d 1079, 1083 (3d Cir. 1991) (citations omitted). Nevertheless, because Joseph did not

raise the claim on appeal to the District Court, we review for plain error. United States v.

Corso, 549 F.3d 921, 928 (3d Cir. 2008). Under this standard, Joseph must show

“(1) that there was an error, … (2) that the error was „plain,‟ i.e., clear or obvious, and

(3) that the error affected his substantial rights.” Id. (citation omitted). Even then, we

may only exercise our discretion in correcting the error when “a miscarriage of justice

would otherwise result.” Id. at 929 (internal quotation and citations omitted).

       To show ineffective assistance of counsel, a defendant must show (1) “that

counsel's performance was deficient” such that it “fell below an objective standard of

reasonableness” and (2) “that the deficient performance prejudiced the defense.”

Breakiron v. Horn, 642 F.3d 126, 137 (3d Cir. 2011) (quoting Strickland v. Washington,

466 U.S. 668, 687-88 (1984)). Joseph fails to prove either prong of the Strickland test.

As discussed above, the evidence was sufficient to prove all of the elements of the crime;

therefore, counsel could have reasonably concluded that filing a Rule 29 motion would

have been futile. Moreover, the record reveals that counsel‟s failure to file the motion

did not prejudice Joseph because the District Court made it clear during the jury


                                              6
instructions conference that it would not have granted the motion. Joseph v. Virgin

Islands, No. 2005-13, 2008 WL 5663569, at *6 (D.V.I. App. Div. Dec. 9, 2008). Thus,

Joseph cannot prevail on his ineffective assistance of counsel claim.

                                             C.

       Joseph next contends that the trial court erred in applying the habitual offender

statute to his sentence. “We review the sentence that was imposed for abuse of discretion

inasmuch as it did not exceed the statutory limits of the applicable statute” and “exercise

plenary review over the district court's determination of questions of law.” Gov’t of V.I.

v. Walker, 261 F.3d 370, 372 (3d Cir. 2001).

       Joseph was sentenced to a term of imprisonment of ten years, pursuant to 14

V.I.C. § 61(a), which mandates that a defendant previously convicted of a felony offense

within the past ten years “shall” be sentenced to a minimum of ten years, and also

mandates that “[if] the last conviction [was] for a crime of violence[,]” the court “shall”

not grant parole or early release. 14 V.I.C. § 61(a). Joseph argues that his last conviction

was not a crime of violence. This may be correct, but it is irrelevant; the court did not

make Joseph ineligible for parole or early release, but rather, it sentenced him to ten years

under the first mandate of § 61(a), which applies where there has been any previous

felony within the past ten years. Accordingly, Joseph‟s sentence was not an abuse of

discretion.




                                              7
                                              D.

       Lastly, Joseph submits that the jury deliberated for an insufficient length of time to

support a guilty verdict. Joseph did not raise this issue at the trial court, so we review for

plain error. United States v. Olano, 507 U.S. 725, 732 (1993). We have never held that

there is a minimum length of time necessary for jury deliberations to support a

conviction. Even when the amount of time spent deliberating is relevant in the context of

hung juries, we have stated that “there is no uniform minimum period during which a jury

must deliberate before the court may declare a hung jury.” United States ex rel. Webb v.

Ct. of Common Pleas of Phil. Cnty, 516 F.2d 1034, 1044 (3d Cir. 1975).

       Here, the trial court did not commit plain error in allowing the jury to deliberate

for thirty minutes before convicting Joseph. The indictment only charged Joseph with

one count of possession of stolen property. Three of the four elements (elements one,

two and four) of the crime were virtually or completely uncontested at trial. And the

third element of the crime, whether the defendant knew or had cause to believe that the

property was obtained in an unlawful manner, simply turned on whether the jury gave

more weight to Joseph‟s testimony or the circumstantial evidence presented by the

Government. Thus, we cannot say that the trial court erred in allowing the jury to

deliberate for thirty minutes before rendering a guilty verdict.

                                             IV.

       For the reasons set forth above, we will affirm the judgment of the District Court.


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