                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-14-1997

United States v. Betancourt
Precedential or Non-Precedential:

Docket 96-7743




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Recommended Citation
"United States v. Betancourt" (1997). 1997 Decisions. Paper 105.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/105


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Filed May 14, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-7743

UNITED STATES OF AMERICA

v.

DUHANN BETANCOURT,

APPELLANT

On Appeal From the District Court
of the Virgin Islands (Division of St. Croix)
(D.C. Crim. No. 96-cr-00010)

Argued: April 8, 1997

Before: BECKER, ROTH, and WEIS, Circuit Judges.

(Filed May 14, 1997)

MELODY M. WALCOTT, ESQUIRE
(ARGUED)
Office of Federal Public Defender
P.O. Box 3450
Christiansted, St. Croix
U.S. Virgin Islands 00822

Attorney for Appellant
AZEKIAH E. JENNINGS, ESQUIRE
(ARGUED)
Office of the United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
U.S. Virgin Islands 00820

Attorney for Appellee

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal from the judgment of the district court
following a jury trial convicting appellant Duhann
Betancourt of the federal offense of possession of a firearm
with an obliterated serial number, 18 U.S.C. § 922(k), and
the territorial offense of possession of a sawed-off shotgun,
14 V.I.C. § 2253(b).1 The sole question on appeal is whether
Betancourt is entitled to vacatur of one of the convictions
on the ground that the two offenses are multiplicitous.
Agreeing with the district court that they are not, we affirm.

I.

The facts underlying Betancourt's convictions are simple,
and are set forth in the margin.2 Betancourt's argument
_________________________________________________________________

1. On the federal count, Betancourt was sentenced to sixteen months; on
the territorial count, he was sentenced to two years, to be served
concurrently with the federal sentence.

2. Betancourt, along with his friends Levi Innocent and Delroy Josiah,
was arrested when the Mitsubishi Mirage in which they were driving was
pulled over by the Virgin Islands police. The police noticed the car after
receiving a report that shots had been fired in the Castle Burke section
of St. Croix. The officers searched the car and its passengers, but did not
discover any weapons. A search of the area where the police had first
spotted the Mirage turned up a 12-gauge sawed-off shotgun adjacent to
the road. At the police station, Betancourt admitted that the shotgun
was his and that he had thrown it out of the car window. While not
relevant to the case on appeal, it is interesting to note that (co-
defendant) Mr. Innocent pleaded guilty.

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that the offenses are multiplicitous, i.e., they proscribe the
same conduct, and hence that conviction for both violates
the Double Jeopardy Clause, requires us to consider the
teachings of Blockburger v. United States, 284 U.S. 299
(1932). There the Supreme Court explained that if "the
same act or transaction constitutes a violation of two
distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the
other does not." Id. at 304. Thus, we must consider
whether each offense for which Betancourt was convicted
requires proof of a fact that the other does not. The relevant
statutes are set forth in the margin.3

The elements of a 18 U.S.C. § 922(k) possession offense
are (1) knowing possession; (2) of a firearm with an
obliterated serial number; (3) that traveled through
interstate or foreign commerce. The elements of a 14 V.I.C.
§ 2253(b) conviction are (1) possession; (2) of a sawed-off
_________________________________________________________________

3. 18 U.S.C. § 922(k):

It shall be unlawful for any person knowingly to transport, ship, or
receive, in interstate or foreign commerce, anyfirearm which has
had the importer's or manufacturer's serial number removed,
obliterated, or altered or to possess or receive anyfirearm which has
had the importer's or manufacturer's serial number removed,
obliterated, or altered and has, at any time, been shipped or
transported in interstate or foreign commerce.

****

14 V.I.C. § 2253:

(b) Whoever, unless otherwise authorized by law, has, possesses,
bears, transports or carries either openly or concealed on or about
his person, or under his control in any vehicle of any description
any machine gun or sawed-off shotgun, as defined in subsection
(d)(2) and (3) of this section, loaded or unloaded, may be arrested
without a warrant, and shall be sentenced to imprisonment of not
less than two years nor more than five years and shall be fined not
more than $7,000 . . . .

(d)(3) "Sawed-off shotgun" means any firearm, as defined in Title
23, section 451(d) of this Code, designed to fire through a smooth
bore either a number of ball shot or a single projectile, the barrel of
which is less than 20 inches in length.

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shotgun (a weapon with a barrel length of less than twenty
inches); (3) that the defendant was not authorized to
possess. Cf. United States v. Xavier, 2 F.3d 1281, 1291 (3d
Cir. 1993) (explaining elements of a §2253(a) conviction,
possession of a firearm). Betancourt contends that, in
ultimate essence, the territorial offense penalizes
possession of a firearm. Additionally, he submits that the
fact that a sawed-off shotgun was the particular firearm
involved simply enhances the penalty for conviction under
that provision, but does not itself constitute an element of
the offense. Under these circumstances, the argument
continues, conviction under the territorial provision
requires only proof of facts also required for conviction
under the federal provision, and the territorial offense is
thus a lesser-included offense of the federal offense.

We disagree. It is clear to us that each offense requires
proof of facts that the other does not. Conviction under the
federal provision requires proof that the firearm had an
obliterated serial number and that it was transported in
interstate commerce. Conviction under the territorial
provision requires proof that the firearm was a sawed-off
shotgun and that possession of that firearm was not
authorized by law. On its face, § 2253(b) makes clear that
possession of a sawed-off shotgun is an element of the
offense, not just a penalty enhancement. Moreover, even if
Betancourt correctly argues that proof that the firearm was
a sawed-off shotgun serves as a penalty enhancement
rather than as an element of the offense under the
territorial statute, the government still must prove a fact
that is not an element of the federal offense to secure a
conviction under the territorial provision: unauthorized
possession. Cf. Xavier, 2 F.3d at 1291 (unauthorized
possession is an element of proving possession of afirearm
under § 2253(a)).

Although the purpose of a criminal provision is not an
articulated factor in the Blockburger analysis, we also note
that the two provisions plainly are aimed at different
conduct. The purpose of the federal offense is to prevent an
underground black market in illegal firearms by punishing
conduct that makes tracing such weapons difficult. The
purpose of the territorial offense, by contrast, is to

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eradicate a specific type of firearm, a sawed-off shotgun,
which the Virgin Islands legislature has apparently found
particularly dangerous.

In short, while Betancourt's argument that the territorial
offense in the final analysis punishes only possession may
have a certain facial appeal, it cannot satisfy the
Blockburger test. The judgment of the district court will be
affirmed.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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