Filed: Dec. 22, 2003
Latest Update: Mar. 02, 2020
Summary: 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of the United 2003 Decisions States Court of Appeals for the Third Circuit 12-22-2003 USA v. Nunez Precedential or Non-Precedential: Non-Precedential Docket No. 03-1380 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Nunez" (2003). 2003 Decisions. Paper 35. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/35 This decision is brought to you for free and open access by the Opinions of the United States Co
Summary: 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of the United 2003 Decisions States Court of Appeals for the Third Circuit 12-22-2003 USA v. Nunez Precedential or Non-Precedential: Non-Precedential Docket No. 03-1380 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Nunez" (2003). 2003 Decisions. Paper 35. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/35 This decision is brought to you for free and open access by the Opinions of the United States Cou..
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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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"USA v. Nunez" (2003). 2003 Decisions. Paper 35.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/35
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL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.
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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.”
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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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