NOT PRECEDENTIAL



                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 19-1706
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                    DANIEL CARINO,
                                            Appellant


                            On Appeal from the District Court
                                   of the Virgin Islands
                          District Court No. 1-16-cr-00023-001
                     District Judge: The Honorable Wilma A. Lewis

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  December 9, 2019

         Before: SMITH, Chief Judge, McKEE, and SHWARTZ, Circuit Judges

                                (Filed: December 13, 2019)

                                _____________________

                                      OPINION*
                                _____________________


SMITH, Chief Judge.



*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       A jury convicted Carino of one federal offense, using a firearm during a violent

crime, and two Virgin Islands (“V.I.”) offenses, attempted murder and assault in the third

degree. On appeal of the territorial counts only, Carino claims that the District Court

erred by (1) failing to consider, during sentencing, Carino’s “substantial assistance” to the

F.B.I.; (2) refusing to allow an evidentiary hearing on Carino’s “substantial assistance;”

and (3) referencing Virgin Islands Superior Court Rule 35 when concluding that

additional evidence on “substantial assistance” was unwarranted. Because the District

Court acted appropriately, we will affirm.

                                              I2

       Two V.I. Superior Court Rules are relevant in this case: 35 and 134.3 Rule 134(a)

stated that “the court shall afford the defendant or his counsel an opportunity to make a

statement in the defendant’s behalf and to present any information in mitigation of

punishment.” V.I. Super. Ct. Rule 134 (2018) (repealed). In contrast, Rule 35 outlines

the process by which the government can move to reduce a sentence for “substantial

assistance.” V.I. Super. Ct. Rule 35 (2019). Rule 35, however, only applies post-


2
  The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231 and 48
U.S.C. § 1612. This Court has appellate jurisdiction under 28 U.S.C. § 1291. When
interpreting V.I. law, we follow the decisions of the territory’s highest court. Illinois Nat.
Ins. Co. v. Wyndham Worldwide Operations, Inc., 

, 231 (3d Cir. 2011).
Under V.I. law, sentences that fall within the bounds of the applicable statute are
generally non-reviewable absent a showing of illegality or abuse of discretion. Brown v.
People, 

, 699 (V.I. 2012).
3
 Rule 134 was in effect at the time the crime was committed and throughout conviction and
sentencing. The Virgin Islands Supreme Court has since repealed the rule. V.I. Sup. Ct., In Re
Amendments to the Rules Governing the Superior Court of the Virgin Islands, Promulgation No.
2019-003 (Feb. 15, 2019), http://visupremecourt.org/wfData/files/2019-0003.pdf.
                                                2
sentencing. 

that the District Court erred by failing to consider his “substantial

assistance” during sentencing. The record belies this assertion. Rule 134(a) permitted

the introduction of any “mitigating” evidence, including evidence that a defendant

willingly gave information to the police. At sentencing, counsel affirmed that Carino

voluntarily provided the F.B.I. with information about several unsolved crimes. The

District Court considered this voluntary effort as a mitigating factor. The government

claimed, however, that the information supplied was of no value, so the Court

appropriately exercised its broad discretion in assigning the “mitigating” actions no

weight.

                                             II

       Trial counsel also sought to prove, by delving into the specific information

divulged, that Carino’s actions constituted “substantial assistance.” The District Court

refused to allow an evidentiary hearing on this issue, concluding that a determination of

“substantial assistance” was solely within the prosecutor’s discretion absent a showing of

bad faith. We discern no error.

       Drawing on United States v. Abuhouran, 

(3d Cir. 1998), there are a

number of reasons why it is generally inappropriate for courts to decide whether a

defendant rendered “substantial assistance:” (1) second guessing the prosecutor is neither

practical nor proper. To determine whether a defendant’s cooperation was useful, the

Court would be forced “to examine the government’s prosecutorial and investigative files

                                             3
thoroughly, including not only the information the defendant has provided, but also any

information describing matters related thereto.” 

; (2) there

are no clear standards for valuing the information provided; (3) addressing this issue

would force prosecutors to prove unsubstantial assistance; and (4) judicial involvement

would incentivize criminal defendants to offer “information”—useful or not—in an

attempt to obtain an evidentiary hearing on “substantial assistance.”

       Additionally, the District Court’s reference here to Rule 35 was appropriate. Rule

35 provides for post-sentencing mitigation based on a government motion showing

“substantial assistance.” V.I. Super. Ct. Rule 35 (2019). Although not controlling in this

case, the District Court found Rule 35’s deference to the government, which is better

equipped to determine the value and usefulness of information, persuasive. We agree.

The District Court reasonably considered the spirit of Rule 35, as one of many factors, in

holding that it should refrain from hearing additional evidence and determining whether

the information supplied constituted “substantial assistance.”

                                            III

       The District Court considered, and gave no weight to, Carino’s assistance; relied

upon counsel’s representations rather than holding an evidentiary hearing; and took Rule

35’s deference to the government into account. Since the District Court did not abuse its

discretion in making these decisions, we will affirm the judgment.




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