                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-18-2006

USA v. De La Cruz
Precedential or Non-Precedential: Precedential

Docket No. 05-5554




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Recommended Citation
"USA v. De La Cruz" (2006). 2006 Decisions. Paper 510.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/510


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                                      PRECEDENTIAL

          UNITED STATES COURT OF APPEAL
              FOR THE THIRD CIRCUIT


                        No. 05-5554


             UNITED STATES OF AMERICA

                              v.

           FERNANDO BATISTA DE LA CRUZ,

                                             Appellant


               On Appeal from the District Court
                      of the Virgin Islands
               (D.C. Criminal No. 02-cr-00033-2)
     District Judge: Hon. Raymond L. Finch, Chief Judge


                   Argued May 11, 2006

  BEFORE: FISHER, COWEN and ROTH,* Circuit Judges

                  (Filed: August 18, 2006)

Micol L. Morgan, Esq. (Argued)
Ogletree, Deakins, Nash, Smoak
  & Stewart
1336 Beltjen Road, Suite 202
Charlotte Amalie, St. Thomas
USVI, 00802

      Counsel for Appellant


     *The Honorable Jane R. Roth assumed senior status on
May 31, 2006.
Major Coleman, Esq. (Argued)
Office of the United States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas
USVI, 00802-6924

       Counsel for Appellee


                            OPINION


COWEN, Circuit Judge.

       Fernando Batista De La Cruz challenges the district
court’s two-level upward adjustment of his sentence on the
ground that he employed “special skills” in operating a fishing
boat from Puerto Rico to St. Thomas, Virgin Islands to pick up
and transport cocaine. We will reverse and remand for
resentencing.

                                I.

        On November 18, 2001, Batista De La Cruz borrowed a
twenty-foot powerboat from a friend to go from Puerto Rico to
St. Thomas. He and passenger Bartolo Martes-Jimenez left
Puerto Rico in the morning and used the boat to go fishing for
lobster. After fishing, Batista De La Cruz piloted the boat to St.
Thomas. While at St. Thomas, he picked up two fuel tanks
which contained thirty-four kilograms of cocaine and stored
them on the boat. He then piloted the boat approximately 1.5
miles south to an island off the coast of St. Thomas, Water
Island.

       Officer Montclair Guishard stopped the boat near Water
Island for traveling at a high rate of speed with a fish trap
dangerously bouncing on the bow of the boat. He then called for
back-up officers to assist in questioning Batista De La Cruz and
Martes-Jiminez in Spanish. The officers determined that both
men did not have fishing licenses and two of the six lobsters

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caught were undersized. Both men were arrested and charged
with possession of undersized lobsters and fishing without a
license in violation of V.I. Code Ann., tit. 12, §§ 319, 312. Once
the men were in custody, the officers took inventory of the
vessel for safekeeping and accountability. While taking
inventory, the officers discovered the cocaine hidden in the
modified gas containers.

       Batista De La Cruz was charged with one count of
conspiracy to possess cocaine with the intent to distribute and
one count of possession with intent to distribute in violation of
21 U.S.C. §§ 841, 846 and 18 U.S.C. § 2. He pled guilty to both
counts. In the presentence report, the Probation Office
recommended a two-level enhancement pursuant to United
States Sentencing Guideline § 3B1.3 for use of a special skill in
piloting the boat from Puerto Rico to St. Thomas. Batista De La
Cruz objected to the enhancement. The government originally
concurred with his position, stating that the enhancement did not
apply because Batista De La Cruz did not have boat handling
training or any vessel pilot license. The government ultimately
changed its position and now asserts that the enhancement
applies.

        The report by the Probation Office recommending the
two-level enhancement was based on an interview with Alvin
Powell, Jr., an Environmental Enforcement Officer and a
Certified Boating Safety Instructor. After seeing a picture of the
boat used by Batista De La Cruz, Powell opined that a layperson
in the community would not be able to pilot that type of boat
without having special skills. A person piloting a similar boat
would need to know how to ride the waves because of the
freeboard (lowness) of the stern and port and starboard sides of
the boat. Powell also noted that the vessel may have been
partially submerged at the time of interception due to the weight
of the two men, the 34.4 kilograms of cocaine, the ice cooler
with its contents, the large fish trap, and the two fuel tanks.
Powell noted that the waters are generally rough and there are
shallow areas that must be avoided, such as sand banks and coral
reefs.
        The district court adopted the presentence report without
any changes. The two-level enhancement raised the applicable

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offense level from 29, with a corresponding guideline sentencing
range of 87 to 108 months, to 31, with a guideline sentencing
range of 108 to 135 months. On December 14, 2005, the district
court sentenced Batista De La Cruz to 108 months, with credit
given for time served, and five years of supervised release.1

                                II.

        The district court had jurisdiction pursuant to 18 U.S.C. §
3241. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and
28 U.S.C. § 1291. This court reviews de novo a district court’s
legal interpretation of the Sentencing Guidelines. United States
v. Urban, 140 F.3d 229, 234 (3d Cir. 1998). We review the
district court’s finding of facts for clear error. United States v.
Lennon, 372 F.3d 535, 538 (3d Cir. 2004).

         Section 3B1.3 advises a district court to increase a
defendant’s offense level by two levels “[i]f the defendant
abused a position of public or private trust, or used a special
skill, in a manner that significantly facilitated the commission or
concealment of the offense . . . .” U.S. SENTENCING GUIDELINES
MANUAL § 3B1.3 (2005). We have required a sentencing court
to make two findings before imposing an upward adjustment for
use of a special skill: (1) the defendant possesses a special skill;
and (2) the defendant used it to significantly facilitate the
commission or concealment of the offense. See United States v.
Maurello, 76 F.3d 1304, 1314 (3d Cir. 1996).

       A “‘[s]pecial skill’ refers to a skill not possessed by
members of the general public and usually requiring substantial
education, training or licensing. Examples would include pilots,
lawyers, doctors, accountants, chemists, and demolition
experts.” U.S. SENTENCING GUIDELINES MANUAL § 3B1.3 cmt.
n.4 (2005). Special skills are not, however, limited to those


       1
        The judgment of conviction and sentence provides that
Batista De La Cruz shall be given credit for time served from
March 18, 2001. Because Batista De La Cruz was arrested on
November 18, 2001, it appears that the date in the judgment is
inaccurate.

                                 4
obtained through formal education, training, or licensing.
Special skills may be obtained through life experience and self-
study. See United States v. Urban, 140 F.3d 229, 236 (3d Cir.
1998) (upholding district court’s finding that Defendant
employed special skills to make explosive devices based on his
self-education and work experience).

        In United States v. Calderon, 127 F.3d 1314 (11th Cir.
1997), the Court of Appeals for the Eleventh Circuit considered
whether the district court properly found a special skill pursuant
to § 3B1.3 when defendants captained a thirty-eight foot cabin
cruiser containing cocaine on three occasions from the Bahamas
to a predetermined location in Southern Florida. The defendants
argued that no special skill was required because one could learn
to pilot a thirty-eight foot boat and obtain a license after a few
weeks training. The Eleventh Circuit rejected their argument,
noting that the inquiry is on the skills members of the public
possess generally, not what they could do after weeks of
training. The court found that the defendants employed a special
skill because they captained a boat on the high seas from the
Bahamas to a predetermined location in Southern Florida, using
a chart and compass at night without lights, while taking steps to
elude detection from law enforcement agencies tasked with
preventing the importation of drugs. See id. at 1339-40.

        In the present case, Batista De La Cruz contends that the
district court erred by finding he possessed a “special skill”
pursuant to § 3B1.3 based on his ability to pilot and navigate a
20-foot power boat with a 40 horsepower engine from Puerto
Rico to St. Thomas during the day. The parties supplemented
the record with facts in response to a series of questions asked by
this Court. The record indicates that the shortest possible
journey between Puerto Rico and St. Thomas is thirty-five miles.
The route taken by Batista De La Cruz appears to have been
about fifty miles. A boat traveling from Puerto Rico to St.
Thomas would not be out of sight of land. A vessel can reach St.
Thomas through line-of-sight navigation by following the
islands in a generally easterly direction until landfall on St.
Thomas. Authorities found no marine radio, nautical charts,
compasses, or other navigational instruments or aids on the boat
operated by Batista De La Cruz. Markers are placed in the water

                                5
by the United States Coast Guard establishing an obvious
channel for boaters to navigate and avoid shallow reefs, fish
trapping areas, and other dangerous obstacles. The well-known
markers are red and green buoys that mark the channel of
passage. Boats are to pass them keeping the red buoys on their
right when returning to port and the green on their right when
leaving.

        Based on the record, we are not persuaded that Batista De
La Cruz employed a “special skill” within the meaning of §
3B1.3. There is no evidence that he received substantial
education, training or licensing with boating. The record is also
devoid of evidence that he frequently boated on his own to
develop and hone his skills beyond those in the general public.
Contrary to the suggestions in the Probation Office’s report,
there is no evidence that the trip to St. Thomas was particularly
challenging on the day in question due to rough waters or other
reasons.

        Unlike the defendants in Calderon, Batista De La Cruz
employed simple line-of-sight navigation to reach St. Thomas.
The authorities found no charts, compasses or other navigational
devices on his boat. In further contrast to Calderon, Batista De
La Cruz operated his boat during day light hours. The record
fails to reflect that he had any licensing, or even any special skill
obtained through education, self-study, or experience, which
would qualify as the predicate for an enhancement pursuant to §
3B1.3.

                                 III.

       For the reasons set forth above, we will reverse the
judgment of the district court and remand for resentencing
consistent with this opinion.




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