                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-22-2003

USA v. Nunez
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1380




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"USA v. Nunez" (2003). 2003 Decisions. Paper 35.
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                                          NOT PRECEDENTIAL




           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          NO. 03-1380


               UNITED STATES OF AMERICA

                               v.

                     FRANCISCO NUNEZ
                         Appellant




     On Appeal From the District Court of the Virgin Islands
             (D.C. Crim. Action No. 02-cr-00097)
         District Judge: Honorable Thomas K. Moore


                  Argued December 10, 2003

BEFORE: NYGAARD, BECKER and STAPLETON, Circuit Judges

              (Opinion Filed December 22, 2003)




                      Douglas J. Beevers (Argued)
                      Office of Federal Public Defender
                      P.O. Box 1327, 51B Kongens Gade
                      Charlotte Amalie, St. Thomas, USVI 00804
                       Attorney for Appellant
                                   Anthony J. Jenkins
                                   Office of the United States Attorney
                                   5500 Veterans Building, Suite 260
                                   Charlotte Amalie, St. Thomas, USVI 00802-6924
                                    and
                                   David M. Nissan
                                   United States Attorney
                                   Bruce Z. Marshack (Argued)
                                   Office of the United States Attorney
                                   1108 King Street, Suite 201
                                   Christiansted, USVI 00820
                                    Attorneys for Appellee




                               OPINION OF THE COURT




STAPLETON, Circuit Judge:

              Appellant Francisco Nunez pled guilty to unlawful entry after deportation,

in violation of 8 U.S.C. § 1326(a) and (b). The presentence report recommended a

sixteen-level enhancement because Nunez had previously been convicted of a “drug

trafficking offense” within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(i). The District

Court accepted this recommendation and sentenced Nunez to forty-six months of

incarceration followed by three years of supervised release. He appeals, asserting that

this was reversible error.

              Guideline § 2L1.2(b)(1)(A)(i) requires a sentencing court to increase a

defendant’s offense level by 16 where that defendant has been previously deported after



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“a conviction for a felony that is . . . a drug trafficking offense for which the sentence

exceeded 13 months.” A “drug trafficking offense” is defined in the Guidelines

commentary as:

              an offense under federal, state, or local law that prohibits the
              manufacture, import, export, distribution, or dispensing of a
              controlled substance (or a counterfeit substance) or the
              possession of a controlled substance (or a counterfeit
              substance) with intent to manufacture, import, export,
              distribute, or dispense.

U.S.S.G. § 2L1.2, comment., n.1(B)(iii). The Guidelines commentary further provides

that conspiracies and attempts to commit such offenses are included in “drug trafficking

offenses.” U.S.S.G. § 2L1.2, comment., n.4.

              Nunez concedes that he was deported following his conviction in a New

York state court of violating N.Y. Penal Law § 220.39, which provides as follows:

              Criminal sale of a controlled substance in the third degree: A
              person is guilty of criminal sale of a controlled substance in
              the third degree where he knowingly and unlawfully sells: 1.
              A narcotic. N.Y. Penal Law § 220.39 (1999).

New York’s controlled substance statute defines “sell” as follows:

              Controlled substances: definitions: (1) “Sell” means to sell,
              exchange, give or dispose of to another, or to offer or agree to
              do the same. N.Y. Penal Law § 220.00 (1999).

              The New York indictment charged Nunez with having “knowingly and

unlawfully sold to a police officer known to the Grand Jury, a narcotic drug, to wit,

cocaine” on May 14, 1997, in the County of New York.



                                              3
              When Nunez pled guilty to this charge, the judge questioned him to

establish the factual basis for his plea. The following exchange occurred:

                     THE COURT: Is it true that in New York County on
              June 5, 1997, you knowingly unlawfully sold to another
              individual a substance containing a narcotic drug weighing
              one half ounce or more.
                     Is that true?

              DEFENDANT NUNEZ: Yes.

              THE COURT: What was the drug?

              DEFENDANT NUNEZ: Cocaine.

              THE COURT: Where did this sale occur?

              DEFENDANT NUNEZ: Amsterdam Avenue

              THE COURT: What street?

              DEFENDANT NUNEZ: 141st Street.

              THE COURT: Was that about six in the evening?

              DEFENDANT NUNEZ: I don’t remember exactly.

              THE COURT: But, it was later in the day? It wasn’t in the
              morning, was it? Was it more later in the day.

              DEFENDANT NUNEZ: In the afternoon..

Appellee’s App. at 17-18.

              Nunez insists that one can violate N.Y. Penal Law § 220.39 “without proof

of either possession or distribution.” Accordingly, he concludes that his “conviction does

not fit the guideline definition.”

                                            4
              We are satisfied that Nunez’s New York conviction was for a “drug

trafficking offense” and that a sixteen-level enhancement was required. We may assume

arguendo that there may be peripheral cases within the scope of § 220.39 that involve

neither possession nor distribution. This does not aid Nunez, however. The offense

Nunez committed, as described by him at the time of his plea, is at the heart of a statute

prohibiting the trafficking in controlled substances. Even when a court applies a

categorical approach to determining the character of a prior conviction, as Nunez urges us

to do here, there is an established exception to the rule that the statutory elements and not

the underlying facts control. “When the ‘statutory definition of the prior offense’ is broad

enough to permit conviction based on conduct that falls outside the scope of [the

enhancement provision], it becomes necessary to look beyond the statute of conviction.

Only in such cases may the sentencing court look to the facts of the particular case in

order to determine whether the trier of fact necessarily found elements that would qualify

the offense” under the enhancement provision. United States v. Watkins, 54 F.3d 163 (3d

Cir. 1995). Here, the fact finder – the New York judge – clearly found all of the elements

of a “drug trafficking offense” within the meaning of U.S.S.G. § 2L1.2.

              The judgment of the District Court will be affirmed.




                                              /s/ Walter K. Stapleton
                                              Circuit Judge

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