                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-11-2002

USA v. Victoria
Precedential or Non-Precedential:

Docket 0-2266




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Recommended Citation
"USA v. Victoria" (2002). 2002 Decisions. Paper 115.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/115


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                                                      NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                             ___________

                             No. 00-2266
                             ___________


                     UNITED STATES OF AMERICA

                                 v.

                          NAZARETH VICTORIA,
                                               Appellant

          _______________________________________________

          On Appeal from the United States District Court
              for the Western District of Pennsylvania
                  D.C. Criminal No. 00-cr-00004-1
                   (Honorable Donald E. Ziegler)
                        ___________________


          Submitted Pursuant to Third Circuit LAR 34.1(a)
                          January 17, 2002

Before:   SCIRICA and ROSENN, Circuit Judges, and KANE, District Judge*

                     (Filed February 11, 2002)




     *The Honorable Yvette Kane, United States District Judge for the
Middle District of
Pennsylvania, sitting by designation.
                          ______________

                          MEMORANDUM OPINION
                            ______________


SCIRICA, Circuit Judge.

     This is an appeal from a judgment of conviction and sentence in the
United States
District Court for the Western District of Pennsylvania. After a jury
trial, Nazareth
Victoria was convicted of one count of conspiracy to distribute and
possess with intent to
distribute in excess of fifty kilograms of marijuana, in violation of 21
U.S.C.A.   846. On
appeal, Victoria contends the District Court erred in failing to grant an
aberrant behavior
departure under U.S.S.G. 5K2.20. Victoria also argues the District Court
erred in
determining he did not have standing to seek suppression of certain
evidence used against
him at trial. We will affirm.
                               I
     Nazareth Victoria was convicted on April 10, 2000. The Presentence
Investigation
Report determined Victoria's criminal history category was one and his
offense level was
twenty-two. As a result, the guideline imprisonment range was forty-one
to fifty-one
months. Victoria raised the issue of an aberrant behavior departure in
his response to the
presentence report.   The District Court refused to depart downward based
on aberrant
behavior. On July 21, 2000, the Court sentenced Victoria to 41 months'
incarceration.
     Victoria contends this matter should be remanded for resentencing so
the District
Court can consider "aberrant behavior" under U.S.S.G.   5K2.20, which went
into effect
on November 1, 2000. When the District Court sentenced Victoria on July
21, 2000, it
considered the issue of aberrant behavior before denying his request for a
downward
sentencing departure. But the District Court did not consider whether
Victoria's actions
constituted "aberrant behavior" under   5K2.20 of the Sentencing
Guidelines because that
section had not yet taken effect.
     We have held that " 5K2.20 was a substantive change to the
Sentencing
Guidelines and cannot be applied retroactively." United States. v.
Spinello, 265 F.3d 150,
162 (3d Cir. 2001). As a result,    5K2.20 is inapplicable here and
Victoria's argument is
meritless. For this reason, we will affirm the judgment of sentence.
                               II
     Victoria contends the District Court erred in finding he lacked
standing to seek
suppression of certain evidence used against him at trial. "Standing to
challenge a search
requires that the individual challenging the search have a reasonable
expectation of
privacy in the property searched, and that he manifest a subjective
expectation of privacy
in the property searched." United States v. Baker, 221 F.3d 438, 441 (3d
Cir. 2000)
(citations omitted). It is clear that Victoria, who was neither the
renter, passenger or
driver, did not have a reasonable expectation of privacy in the vehicle.
See Baker, 221
F.3d at 442 (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978), for the
proposition that
"there is no legitimacy to a defendant's expectations of privacy where the
area searched is
in the control of a third party").
     Victoria's alleged expectation of privacy is based on a phone call to
the rental car
company, his loading of several cases of wine into the vehicle, and his
loading of three
duffel bags containing 165 pounds of marijuana into the vehicle. Victoria
did not execute
a contract with the rental car company; he did not operate or control the
vehicle at any
time; he was not a passenger in the vehicle; and he claimed no property
interest in the
vehicle or the duffel bags of marijuana. Based on the circumstances of
this case, Victoria
had no legitimate and reasonable expectation of privacy in the car or its
contents. Rakas,
439 U.S. at 133-34 :
           Fourth Amendment rights are personal rights which, like some
other constitutional
     rights, may not be vicariously asserted. A person who is aggrieved
by an illegal
     search and seizure only through the introduction of damaging evidence
secured by
     a search of a third person's premises or property has not had any of
his Fourth
     Amendment rights infringed. (quotations and citations omitted).

     As a result, the District Court correctly concluded that Victoria
lacked standing to
challenge the search and seizure of evidence from the vehicle.

                              III
       We will affirm the judgment of conviction and sentence.
TO THE CLERK:

         Please file the foregoing opinion.




                              /s/ Anthony J. Scirica
                                                       Circuit Judge
