PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2602

_____________

UNITED STATES OF AMERICA

v.

RICHIE FONTAINE,

 Appellant

_______________

On Appeal from the District Court of the 

Virgin Islands

(D.C. No. 09-cr-00050-001)

District Judge: Hon. Curtis V. Gomez 

_______________

Argued

May 7, 2012

Before: CHAGARES, JORDAN, and COWEN, Circuit 

Judges.

(Filed: August 28, 2012)

_______________
2

James Bernier, Jr.

Michael Fitzsimmons [ARGUED]

Duensing, Casner, Dollison & Fitzsimmons

5060 Forts Straede

Electra House

St. Thomas, VI 00802

 Counsel for Appellant

Nelson L. Jones [ARGUED]

Office of United States Attorney

5500 Veterans Bldg. – Suite 260

Charlotte Amalie, St. Thomas, VI 00802

 Counsel for Appellee

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OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Richie Fontaine appeals his conviction in the District

Court of the Virgin Islands of the United States for 

unauthorized possession of a firearm or “imitation thereof” 

during the commission of a crime of violence, in violation of 

14 V.I. Code Ann. tit. 14, § 2253(a). Fontaine argues that 

§ 2253(a) is void for vagueness and that the government 

failed to prove he was not authorized to possess an 

“imitation” firearm, which, under his interpretation of 

§ 2253(a), it was required to do. For the following reasons, 

we will affirm the judgment of conviction.
3

I. Background

A. Facts

On the night of August 14, 2009, Yully Geron and 

Julio Martinez were driving in St. Thomas, when Fontaine 

and an unidentified companion1 forced them to stop and get 

out of their car. Fontaine was brandishing what appeared to 

be a black handgun, while his companion had what appeared 

to be a silver handgun. After Geron and Martinez got out of 

the car, Fontaine and his accomplice ordered them to lie on 

the ground. Fontaine’s accomplice proceeded to search

Martinez and took his wallet, jewelry, and cell phone, while 

Fontaine searched Geron and took his wallet and a steel 

bracelet. Fontaine then held his gun – or what appeared to be 

a gun – to Martinez’s head, and asked him “[w]here is the 

money.” (Joint App. at 180.) Making the threat explicit, 

Fontaine said, “I am going to count until three. And if you 

don’t give me your money, I’m going to kill you.” (Id.) At 

some point, Fontaine pulled the trigger, but the gun did not 

fire. Fontaine also demanded money from Geron. Martinez 

told Fontaine that Fontaine’s accomplice, who had by then

walked across the street, had the money. Fontaine then 

departed. Martinez and Geron immediately drove to a police 

station and reported the incident. Fontaine was arrested nine 

days later. Law enforcement authorities never recovered the 

gun (real or imitation) that was in Fontaine’s possession when 

he robbed Martinez and Geron.

 1 The police never located Fontaine’s accomplice, and 

his identity is unknown. 
4

B. Procedural History

On October 1, 2009, the government charged Fontaine 

with, among other things, six counts of unauthorized 

possession of a firearm or “imitation thereof” during the 

commission of a crime of violence, in violation of 14 V.I. 

Code Ann. tit. 14, § 2253(a).

2

 2 Section 2253(a) provides:

 Because law enforcement 

authorities did not recover a gun when they apprehended 

Fontaine and so could not prove that he had possessed an 

operable firearm, the government’s theory of the case was 

that Fontaine possessed an “imitation” firearm when he 

committed the crimes for which he was being prosecuted. 

Whoever, unless otherwise authorized by law, 

has, possesses, bears, transports or carries 

either, actually or constructively, openly or 

concealed any firearm, as defined in Title 23, 

section 451(d) of this code, loaded or unloaded, 

may be arrested without a warrant, and shall be 

sentenced to imprisonment of not less than one 

year nor more than five years and shall be fined 

not less than $5,000 nor more than $15,000 or 

both the fine and imprisonment, except that if 

such person shall have been convicted of a 

felony in any state, territory, or federal court of 

the United States, or if such firearm or an 

imitation thereof was had, possessed, borne, 

transported or carried by or under the proximate 

control of such person during the commission 

or attempted commission of a crime of violence, 

as defined in subsection (d) hereof, then such 

person shall be fined $25,000 and imprisoned 
5

 

not less than fifteen (15) years nor more than 

twenty (20) years. The foregoing applicable 

penalties provided for violation of this section 

shall be in addition to the penalty provided for 

the commission of, or attempt to commit, the 

felony or crime of violence.

14 V.I. Code Ann. tit. 14, § 2253(a).

The details of the indictment are as follows. Count 

One charged Fontaine with receipt of a firearm by a person 

under indictment, in violation of 18 U.S.C. § 922(n). Counts 

Two and Eight charged him with first degree robbery, in 

violation of 14 V.I. Code Ann. tit. 14, §§ 1861, 1862(2), and 

11(a). Counts Four and Ten charged Fontaine with second 

degree robbery, in violation of 14 V.I. Code Ann. tit. 14, 

§§ 1861 and 1863(1). Counts Six and Twelve charged 

Fontaine with first degree assault, in violation of 14 V.I. Code 

Ann. tit. 14, §§ 295(3) and 11(a). The statute at issue here 

figures in Counts Three, Five, Seven, Nine, Eleven, and 

Thirteen, which charged Fontaine with unauthorized 

possession of a firearm or “imitation thereof” during the 

commission of a crime of violence, in violation of 14 V.I. 

Code Ann. tit. 14, §§ 2253(a) and 11(a), in connection with 

each of the aforementioned offenses. Count Three charged 

Fontaine with violating § 2253 in connection with the first 

degree robbery of Geron charged in Count Two. Count Five 

charged Fontaine with violating § 2253(a) in connection with 

the second degree robbery of Geron charged in Count Four. 

Count Seven charged Fontaine with violating § 2253(a) in 

connection with the conduct that gave rise to Count Six, 

which alleges that Fontaine assaulted Geron with the intent to 

commit robbery. Count Nine charges Fontaine with violating 
6

Trial commenced on November 16, 2009. At the close 

of the government’s case-in-chief, Fontaine filed a motion for 

a judgment of acquittal pursuant to Federal Rule of Criminal 

Procedure 29.

3

 

§ 2253(a) in connection with the first degree robbery of 

Martinez charged in Count Eight. Count Eleven charges 

Fontaine with violating § 2253(a) in connection with the 

second degree robbery of Martinez charged in Count Ten. 

Count Thirteen charges Fontaine with violating § 2253(a) in 

connection with the conduct that gave rise to Count Twelve, 

which alleges that Fontaine assaulted Martinez with the intent 

to commit robbery.

 The District Court initially denied the motion

but then became “concerned that the counts that charge the 

possession of a firearm during a crime of violence may have 

an elemental proof issue.” (Joint App. at 311.) The Court 

3 Federal Rule of Criminal Procedure 29(a) provides:

After the government closes its evidence or 

after the close of all the evidence, the court on 

the defendant’s motion must enter a judgment 

of acquittal of any offense for which the 

evidence is insufficient to sustain a conviction. 

The court may on its own consider whether the 

evidence is insufficient to sustain a conviction. 

If the court denies a motion for a judgment of 

acquittal at the close of the government’s 

evidence, the defendant may offer evidence 

without having reserved the right to do so.

Fed. R. Crim. P. 29(a).
7

was apparently concerned that § 2253(a), as written, required 

the government to prove that the defendant did not have 

authorization to possess an imitation firearm. (See id. at 320

(“And the way the statute is written, or the way it’s been 

determined to be ... you have to show that there was no 

license to possess [an imitation firearm].”); id. (“If you can’t 

get a license to possess a toy gun, say one you got at Kmart 

that looks like a real gun, can you really establish that 

[element of the offense]?”).) The Court thus instructed the 

parties to submit additional briefing on the issue. 

Before definitively resolving that issue, the District 

Court instructed the jury that, for the government to sustain 

its burden of proving that Fontaine was guilty of unauthorized 

possession of a firearm or imitation thereof during a crime of 

violence, 

the government must prove the following 

essential elements beyond a reasonable doubt: 

[f]irst, that the defendant committed a crime of 

violence; [s]econd, that during the commission 

of that crime the defendant knowingly 

possessed or carried a firearm, or imitation 

thereof; [and] [t]hird, that the defendant was not 

authorized to possess or carry the firearm or 

imitation thereof.

(Id. at 345.) Based on that instruction, the jury found 

Fontaine guilty on five of the six counts charging a violation 

of § 2253(a).

4

 4 The jury returned a verdict of not guilty on Count 

Seven. 

 
8

Thereafter, the Court denied Fontaine’s Rule 29 

motion. In denying the motion, it held “that the language [of 

§ 2253] is clear enough to put those in the community on 

notice [as to] which crimes are penalized, [and] what type of 

conduct is prohibited.” (Id. at 474.) The Court also held that, 

except to the extent of showing a defendant was a convicted 

felon, § 2253(a) did not require the government to show that 

Fontaine was not authorized to possess a firearm or “imitation 

thereof” in order to prove that he was guilty of “possessing ... 

an imitation firearm during the commission of a crime of 

violence.”5

 5 In reaching that post-trial conclusion, the Court 

adopted the reading of § 2253(a) proposed by the government 

in its brief. (See Joint App. at 474-75 (stating that “the 

reading ... the Government outlined in its papers is the one 

that the Court will adopt in this case”).) The government 

paraphrased § 2253(a) as follows:

 V.I. Code Ann. tit. 14, § 2253(a). Fontaine was 

Whoever has posses [sic], bears, transports or 

carries either, actually or constructively, openly 

or concealed any firearm, as defined in Title 23, 

section 451(d) of this code, loaded or unloaded, 

may be arrested without a warrant.

[The person] shall be sentenced to 

imprisonment of not less than one year nor 

more than five years and shall be fined not less 

than $5,000 nor more than $15,000 or both the 

fine and imprisonment.

[Additionally,] if [the] person [was] convicted 

of a felony in any state, territory, or federal 

court of the United States, or if [a] firearm or 

imitation thereof was had, possessed, borne, 
9

 

transported or carried by or under the proximate 

control of [a convicted felon] during the 

commission or attempted commission of a 

crime of violence, then [the convicted felon] 

shall be fined $25,000 and imprisoned not less 

than fifteen (15) years nor more than twenty 

(20) years.

The foregoing applicable penalties provided for 

violation of this section shall be in addition to 

the penalty provided for the commission of, or 

attempt to commit, the felony or crime of 

violence.

(Id. at 107-08.) Thus, while it is not entirely clear, it appears 

that, under the District Court’s and the government’s 

interpretation of the statute, the government could show a 

defendant was a convicted felon but would not otherwise 

have to prove beyond a reasonable doubt that a defendant 

accused of possessing an imitation firearm in the course of a 

violent crime was not authorized to possess a firearm or an 

imitation firearm. In other words, to the extent the universe 

of persons “not otherwise authorized by law” to carry a 

firearm contains non-felons, cf. V.I. Code Ann. tit. 23, § 454 

(providing that "[a] firearm may be lawfully had, possessed, 

borne, transported or carried in the Virgin Islands by the 

following persons, provided a license for such purpose has 

been issued by the Commissioner in accordance with the 

provisions of this chapter ... ."), it seems the government and 

the District Court would not require proof of a lack of 

authorization as to those individuals.
10

subsequently sentenced to sixty months’ imprisonment on 

Count One; fifteen years’ imprisonment on Counts Three, 

Five, Nine, Eleven, and Thirteen; and fifteen years’

imprisonment on Counts Eight, Ten, and Twelve. All counts 

were to be served concurrently. This timely appeal followed.

II. Discussion6

Fontaine appeals his conviction on two grounds: 

first, he argues that his conviction under § 2253(a) is 

unconstitutional because the statute is unconstitutionally 

vague; second, he argues that the government failed to 

satisfy its burden of proving that he is guilty of violating 

§ 2253(a) because it did not offer any evidence that he is 

 

That interpretation is at odds with the instructions that 

the Court gave to the jury. In particular, as noted above, the 

Court instructed the jury that the government bore the burden 

of proving that “the defendant was not authorized to possess 

or carry [a] firearm or imitation thereof.” (Id. at 345.) 

Despite any inconsistency, however, there appears to be no 

dispute that the government offered evidence that Fontaine 

did not have authorization to possess a firearm. (See

Appellees’ Br. at 14 (noting that “evidence was produced that 

Fontaine did not possess a firearm license”); Appellant’s Br. 

at 9 (asking whether government could demonstrate that 

Fontaine did not have authorization to carry an imitation 

firearm “by establishing that he did not possess a firearms 

license.”).) 

6 The District Court had jurisdiction under 18 U.S.C. 

§ 3231 and 48 U.S.C. § 1612. We have jurisdiction pursuant 

to 28 U.S.C. § 1291.
11

not authorized to possess an imitation firearm. We will 

uphold the conviction because § 2253(a) clearly proscribes 

Fontaine’s conduct in this case, and because, sensibly read, 

it requires only that the government prove that an accused 

is not authorized to possess a firearm, not that it prove a 

lack of authorization to carry an imitation firearm.

A. The Void-For-Vagueness Challenge7

As previously noted, supra note 2, Section 2253(a)

provides:

Whoever, unless otherwise authorized by law, 

has, possesses, bears, transports or carries 

either, actually or constructively, openly or 

concealed any firearm, as defined in Title 23, 

section 451(d) of this code,[8

 7 We review “challenges to the constitutionality of a 

statute under a de novo standard of review.” United States v. 

Fullmer, 584 F.3d 132, 151 (3d Cir. 2009) (citation omitted). 

] loaded or 

unloaded, may be arrested without a warrant, 

and shall be sentenced to imprisonment of not 

less than one year nor more than five years and 

shall be fined not less than $5,000 nor more 

8 V.I. Code Ann. tit. 23, § 451(d) defines a firearm as 

“any device by whatever name known, capable of discharging 

ammunition by means of gas generated from an explosive 

composition, including any air gas or spring gun or any ‘BB’ 

pistols or ‘BB’ guns that have been adapted or modified to 

discharge projectiles as a firearm.”
12

than $15,000 or both the fine and imprisonment, 

except that if such person shall have been 

convicted of a felony in any state, territory, or 

federal court of the United States, or if such 

firearm or an imitation thereof was had, 

possessed, borne, transported or carried by or 

under the proximate control of such person 

during the commission or attempted 

commission of a crime of violence, as defined in 

subsection (d) hereof, then such person shall be 

fined $25,000 and imprisoned not less than 

fifteen (15) years nor more than twenty (20) 

years. The foregoing applicable penalties 

provided for violation of this section shall be in 

addition to the penalty provided for the 

commission of, or attempt to commit, the felony 

or crime of violence.

(emphasis added). And again, as noted, the jury found 

Fontaine guilty of possessing a firearm or imitation firearm 

“during the commission or attempted commission of a crime 

of violence ... .” V.I. Code Ann. tit. 14, § 2253(a). Fontaine

contends that § 2253(a) is void for vagueness because, by 

penalizing those who possess an imitation firearm during a 

crime of violence, it “fails to provide people of ordinary 

intelligence a reasonable opportunity to understand what 

conduct it prohibits and authorizes,” and “encourages 

arbitrary and discriminatory enforcement.” (Appellant’s Br. 

at 7, 8.) We disagree.

The void-for-vagueness doctrine reflects the 

fundamental principle that, in order to comply with the 

requirements of due process, a statute must give fair warning 
13

of the conduct that it prohibits. See Bouie v. City of 

Columbia, 378 U.S. 347, 351 (1964) (“We have recognized 

... that a statute which either forbids or requires the doing of 

an act in terms so vague that men of common intelligence 

must necessarily guess at its meaning and differ as to its 

application violates the first essential of due process of law ... 

.” (internal quotation marks and citation omitted)). A statute 

is unconstitutionally vague under the Due Process Clause if it 

“(1) ‘fails to provide people of ordinary intelligence a 

reasonable opportunity to understand what conduct it 

prohibits’; or (2) ‘authorizes or even encourages arbitrary and 

discriminatory enforcement.’” United States v. Stevens, 533 

F.3d 218, 249 (3d Cir. 2008) (quoting Hill v. Colorado, 530 

U.S. 703, 732 (2000)). “In criminal cases, because vagueness 

attacks are based on lack of notice, they may be overcome in 

any specific case where reasonable persons would know their 

conduct puts [them] at risk of punishment under the statute.” 

United States v. Moyer, 674 F.3d 192, 211 (3d Cir. 2012) 

(internal quotation marks and citation omitted). Where, as 

here, a statute does not involve rights guaranteed by the First 

Amendment,

9

 9 In the context of a case arising under the First 

Amendment, “we are concerned with the vagueness of the 

statute ‘on its face’ because such vagueness may in itself 

deter constitutionally protected and socially desirable 

conduct.” United States v. Nat’l Dairy Prods. Corp., 372 

U.S. 29, 36 (1963) (citation omitted).

we examine whether it is vague “as-applied to 

the affected party.” United States v. Fullmer, 584 F.3d 132, 

152 (3d Cir. 2009); see also United States v. Mazurie, 419 

U.S. 544, 550 (1975) (“It is well established that vagueness 

challenges to statutes which do not involve First Amendment 
14

freedoms must be examined in the light of the facts of the 

case at hand.” (citation omitted)). 

Fontaine’s void-for-vagueness challenge fails because 

§ 2253(a) is abundantly clear as applied to his conduct in this 

case. As previously described, the statute prohibits the 

possession of an imitation firearm during the commission of a 

crime of violence. V.I. Code Ann. tit. 14, § 2253(a). 

Although it does not define the term “imitation,” the plain and 

ordinary meaning of that term is “something produced as a 

copy,” and it shares the same Latin root as the verb “imitate,” 

which means “to be or appear like.”10

 10 In determining whether a statute is 

unconstitutionally vague, we apply the canons of statutory 

construction. See, e.g., United States v. Thomas, 932 F.2d 

1085, 1090 (5th Cir. 1991) (applying “fundamental” canon of 

construction “that, unless otherwise defined, words will be 

interpreted as taking their ordinary, contemporary, common 

meaning” in assessing vagueness challenge (internal 

quotation marks and citation omitted)); Vernon Beigay, Inc. v. 

Traxler, 790 F.2d 1088, 1093 (4th Cir. 1986) (same). Thus, 

where a statutory term “is not defined in the statute, we must 

construe the term ‘in accordance with its ordinary or natural 

meaning.’” United States v. Alvarez-Sanchez, 511 U.S. 350, 

357 (1994) (quoting FDIC v. Meyer, 510 U.S. 471, 476 

(1994)); Williams v. Taylor, 529 U.S. 420, 431 (2000) (“We 

give the words of a statute their ordinary, contemporary, 

common meaning, absent an indication Congress intended 

them to bear some different import.” (internal quotation 

marks and citations omitted)).

 Webster’s Collegiate 

Dictionary, 10th ed. (2002). Thus, § 2253(a) imposes 

punishment on anyone who, while committing or attempting 
15

to commit a crime of violence, possesses an object that is 

“produced as a copy” of, or “appear[s] like,” a firearm. 

During the trial, both Martinez and Geron testified that 

Fontaine brandished a black object they recognized as a gun

when he robbed them. In fact, Fontaine held it to Martinez’s 

head and pulled the trigger. There is no question that a 

person of ordinary intelligence would have fair warning that 

an object that appears to be a handgun is an “imitation” 

firearm under § 2253(a), and that using it to threaten murder 

during a robbery violates the law. Therefore, because a 

person of ordinary intelligence would understand that the 

statute proscribes Fontaine’s conduct in this case, it is not 

unconstitutionally vague.

11

 11 We also reject in short order Fontaine’s argument 

that § 2253(a) encourages arbitrary and discriminatory 

enforcement because “if a thief carried a green, plastic water 

pistol while stealing $101 from a victim, section 2253 

authorizes his prosecution ... .” (Appellant’s Br. at 9.) As 

already noted, a statute is unconstitutionally vague if it 

“authorize[s] and even encourage[s] arbitrary and 

discriminatory enforcement,” City of Chicago v. Morales, 527 

U.S. 41, 56 (1999), by failing to “establish minimal 

guidelines to govern law enforcement,” Kolender v. Lawson, 

461 U.S. 352, 368 (1983) (citation omitted). Section 2253(a) 

does provide adequate “guidelines to govern enforcement.” It 

expressly allows territorial authorities to prosecute a person 

only when that person commits a crime of violence while 

possessing an object that is a copy of, or appears to be, a 

firearm. The fact that a thief who carries something that 

looks like a real firearm while committing a crime of violence 

falls within the statute’s sweep does not mean that the statute 
16

B. The Demand for Proof of Unauthorized 

Possession of an Imitation Firearm12

Fontaine also argues that, even if we determine that 

§ 2253(a) is not unconstitutionally vague, we should reverse 

his conviction because, under that statute, the government had 

the burden of proving that he was not authorized to possess an 

imitation firearm, and it failed to do so. He is, however, 

mistaken in his premise about the meaning of § 2253(a).

“A court’s primary purpose in statutory interpretation 

is to discern legislative intent.” Morgan v. Gay, 466 F.3d 

276, 277 (3d Cir. 2006). In determining legislative intent, 

“[t]he plain meaning of legislation should be conclusive, 

except in ... rare cases in which the literal application of a 

statute will produce a result demonstrably at odds with the 

intentions of its drafters.” United States v. Ron Pair Enters., 

Inc., 489 U.S. 235, 242 (1989) (internal quotation marks and 

 

encourages enforcement against people who have something 

which, like a green water pistol, is obviously not a firearm. 

12 We exercise plenary review of a district court’s 

interpretation of a statute. Gibbs v. Cross, 160 F.3d 962, 964 

(3d Cir. 1998). Because Fontaine’s appeal requires us to 

interpret a territorial law, it is our role to predict how the 

Supreme Court of the Virgin Islands would resolve this 

interpretive issue. See Edwards v. HOVENSA, LLC, 497 F.3d 

355, 361 n.3 (3d Cir. 2007) (stating that, with the 

establishment of the Supreme Court of the Virgin Islands, 

federal courts are now tasked with “predict[ing] how the 

Supreme Court of the Virgin Islands would decide an issue of 

territorial law”).
17

citation omitted). In those rare cases, we are obligated “to 

construe statutes sensibly and avoid constructions which yield 

absurd or unjust results.” United States v. McKie, 112 F.3d 

626, 631 (3d Cir. 1997); see also In re Chapman, 166 U.S. 

661, 667 (1897) (“[N]othing is better settled than that statutes

should receive a sensible construction, such as will effectuate 

the legislative intention, and, if possible, so as to avoid an 

unjust or an absurd conclusion.”). Thus, as we explained in 

Government of the Virgin Islands v. Berry, 604 F.2d 221 (3d 

Cir. 1979), when necessary, “[g]eneral terms should be so 

limited in their application as not to lead to ... an absurd 

consequence,” and we should “presume[] that the legislature

intended exceptions to its language, which would avoid 

[absurd]” results. Id. at 225 (quoting United States v. Kirby, 

74 U.S. 482, 486-87 (1868)); see, e.g., United States v. 

Carson, 455 F.3d 336, 385 n.44 (D.C. Cir. 2006) (reaching 

“common sense conclusion” that, despite the language of the 

statute, the violent crimes in aid of racketeering statute “[did]

not permit a fine to be levied in lieu of imprisonment or 

death”); Chesapeake Ranch Water Co. v. Bd. of Comm’rs of 

Calvert Cnty., 401 F.3d 274, 280 (4th Cir. 2005) (declining to 

adopt interpretation of federal statute that “once a water 

association is granted authority to serve some area—no matter 

how small—it could then expand its monopoly indefinitely by 

simply developing the physical capability to serve locations 

beyond its original franchise area”); Coar v. Kazimir, 990 

F.2d 1413, 1423-24 (3d Cir. 1993) (rejecting interpretation of

Employee Retirement Income Security Act that would permit 

“dishonest trustees ... ‘who repeatedly and indeed blatantly 

breached their fiduciary duties to ... pension plan’ to evade 

their obligations,” and result in “[p]lan members and their 

families [having] to watch their pension monies disappear 

into the [dishonest trustees’] pockets” (quoting Crawford v. 
18

La Boucherie Bernard Ltd., 815 F.2d 117, 121 (D.C. Cir. 

1987)). An interpretation is absurd when it “defies 

rationality,” Landstar Exp. Am. v. Fed. Maritime Comm’n, 

569 F.3d 493, 498 (D.C. Cir. 2009), or renders the statute 

“nonsensical and superfluous,” Corley v. United States, 556 

U.S. 303, 314 (2009); see John F. Manning, The Absurdity 

Doctrine, 116 Harv. L. Rev. 2387, 2390 (2003) (noting that 

“standard interpretive doctrine ... defines an ‘absurd result’ as 

an outcome so contrary to perceived social values that 

Congress could not have ‘intended’ it”).

We hold that § 2253(a) does not require the 

government to prove that Fontaine lacked authorization to 

carry an imitation firearm, because, first, we do not think the 

language of the statute necessarily leads to such a 

requirement, and, second, to hold otherwise would require us 

to adopt an interpretation of the statute that yields a patently

“absurd ... result[].” McKie, 112 F.3d at 631.

As to the first point, although § 2253(a) is not a model 

of clarity, it appears that, in enacting the provision, the Virgin 

Islands legislature sought, among other things, to prohibit a 

person who is not authorized to possess firearms from 

possessing even an imitation of a firearm during the 

commission of a crime of violence. That much emerges from 

the wording of the statute, which limits its application to 

those who are not authorized to possess firearms and which 

then goes on to provide that whoever fits that qualification 

and nevertheless possesses a “firearm” (as that term is defined 

in V.I. Code Ann. tit. 23, § 451(d)) or an “imitation thereof” 

(i.e., an object that appears to be a firearm) during the 

commission of a crime of violence has committed an offense 

punishable by a $25,000 fine and a fifteen-year term of 
19

imprisonment. The most reasonable interpretation of 

§ 2253(a) is not one that requires proof that a perpetrator 

lacks authorization to carry an imitation firearm, but rather 

one that requires proof of a lack of authorization to carry any 

“firearm,” as that term is statutorily defined. More 

specifically, the first clause of the statute – which makes it an 

offense for a person to, “[u]nless otherwise authorized by law, 

ha[ve], possess[], [or] bear[]” a firearm – does not mention 

the term “imitation thereof.” V.I. Code Ann. tit. 14,

§ 2253(a). It speaks solely to authorization to carry a firearm. 

It is thus the lack of authorization to have a firearm that 

stands as a prerequisite to criminal liability for possessing an 

imitation firearm in the course of a violent crime. Once that

circumstance is shown, the possession of an imitation firearm, 

as much as a real one, in the course of a violent crime 

becomes punishable under the statute.13

 13 The Dissent sees things differently. It says that 

“there is no grammatical reason to distinguish between the 

two objects [firearm and imitation firearm] that might justify 

requiring authorization for the possession of one but not the 

other.” (Dissent at 4-5.) The view of our dissenting 

colleague is that the phrase “unless otherwise authorized” in 

the first clause of the statute “describes the statute’s subject, 

‘whoever.’” (Id. at 4.) He goes on to say that 

“‘[w]however[,]’ is ... understood as someone unauthorized.” 

(Id.) He then says that the first clause of the statute prohibits 

the statute’s subject (“someone unauthorized”) from 

possessing a firearm, and that the third clause of the statute 

prohibits the statute’s subject from having, possessing, or 

bearing, a “firearm or an imitation thereof.” (Id.) Thus, he 

concludes, the government must prove that the defendant is 

not authorized to possess an imitation firearm in order to 

 
20

 

prove that the defendant is guilty of possessing an imitation 

firearm during the commission of a crime of violence. The 

short answer to that reading, however, is that the legislature 

“did not write the statute that way.” Russello v. United 

States, 464 U.S. 16, 23 (1983) (internal quotation marks 

omitted). As noted above, the first clause of the statute 

speaks of authorization to have a firearm, and makes no 

mention of the term “imitation thereof.” V.I. Code Ann. tit. 

14, § 2253(a). 

Our dissenting colleague also argues that our 

interpretation of § 2253(a) is in tension with United States v.

Xavier, 2 F.3d 1281 (3d Cir. 2003). He says that “in Xavier, 

we held that simple possession requires one to knowingly 

possess a firearm without authorization to possess and is a 

lesser included offense of possession during a crime of 

violence,” (Dissent at 5), and that “[f]or the Majority’s 

holding to be understood as consistent with Xavier so that 

‘each provision [does not] require[] proof of a fact which the 

other does not,’ the statute would criminalize simple 

possession of an imitation firearm,” (id. at 6 (quoting Xavier, 

2 F.3d at 1291)). We cannot agree with that interpretation. 

First, as a matter of logic, the outlawing of one thing does not 

necessarily require the outlawing of another. It simply does 

not follow that outlawing the possession of an imitation 

firearm during the course of a violent crime means that mere 

possession of an imitation firearm must be illegal. Second, in 

Xavier, we suggested that the clause prohibiting possession of 

a firearm during the commission of a crime of violence is a 

“separate crime[], directed at a separate evil[]” than the clause 

prohibiting unlawful possession of a firearm generally. See

Xavier, 2 F.3d at 1292 n.12 (noting that clause in § 2253(a) 

which “provid[es] heavier penalties for [a defendant] who 
21

In short, the Virgin Islands legislature intended to 

prohibit a person who is not authorized to carry a firearm 

from: (1) possessing a firearm; (2) possessing a firearm 

during the commission of a crime of violence; and (3) 

possessing an imitation firearm during the commission of a 

crime of violence. It is entirely understandable that the 

legislature would choose to punish the possession of both 

actual and imitation firearms in the course of violent crime, 

and to do so with reference to the territorial gun laws 

requiring authorization to have a firearm. Real guns can of 

course cause injury and death, but possessing even a fake gun 

during a violent crime can have serious consequences, 

including causing the victims to fear for their lives, as 

Fontaine’s murderous threats in this case amply demonstrate. 

As to the second point, even if a literal reading of the 

statute did demand the construction that Fontaine gives 

§ 2253(a), we would reject that reading because it leads to an 

absurd result. There is no statute or regulation in the Virgin 

Islands that requires an individual to obtain authorization or 

licensure to possess an imitation firearm, so demanding proof 

of compliance with a regulatory regime that does not exist is 

 

uses or carries an unregistered firearm during the commission 

... of a crime of violence” is a “separate crime, directed at [a] 

separate evil[]” than the crime of unlawful possession of a 

firearm (citation and internal quotation marks omitted)). 

Thus, we disagree with the Dissent’s argument that, under 

Xavier, any interpretation of § 2253(a) that outlaws 

possession of an imitation firearm during the commission of a 

crime of violence – a crime that is separate and distinct from 

possession a firearm generally – must also criminalize 

possession of an imitation firearm.
22

to demand an impossibility. That dilemma is not resolved by 

leaning on the possibility that such a regime will be put in 

place. It is hard to imagine that the Virgin Islands – or any 

other state or territory for that matter – would take that step, 

and Fontaine does not suggest they will. Put simply, it 

“defies rationality” to believe that the Virgin Islands 

legislature contemplated a new program for licensing fake 

firearms – even realistic ones – and for turning Toys “R” Us

and Kmart into regulated dealers of cap guns.

14

 14 Our dissenting colleague misinterprets, we believe, 

our precedent regarding statutory interpretation. He says that 

“instead of taking the first – and, in this case what should be 

the last – step of analyzing the statute’s plain language, the 

Majority reasons that the legislature intended to prohibit only 

those persons not authorized to possess firearms from 

possessing even an imitation of a firearm during the 

commission of a crime of violence.” (Dissent at 1-2 (citation 

and internal quotation marks omitted).) While the Dissent 

correctly notes that the “first step” “in all statutory 

construction cases,” (id. at 1), is “to determine whether the 

language at issue has a plain and unambiguous meaning,” (id.

(citation and internal quotation marks omitted)), there is a 

reason why we take that step in the first instance: it is to 

“discern [the legislature’s] intent,” Morgan, 466 F.3d at 277. 

Thus, if we take the first step and determine that the “literal 

application of a statute will produce a result obviously at odds 

with the intentions of its drafters,” United States v. Ron Pair 

Enters., Inc., 489 U.S. 235, 242 (1989), it is our duty to adopt 

an interpretation of the statute that does not clearly 

contravene the legislature’s intent, if such an interpretation is 

reasonably possible. See In re Chapman, 166 U.S. at 667 

(“[N]othing is better settled than that statutes should receive a 

 We decline 
23

to adopt Fontaine’s reading of § 2253(a), and instead choose 

to construe the statute as requiring only proof that the 

defendant lacks authorization to possess a firearm, rather than 

 

sensible construction, such as will effectuate the legislative 

intention, and, if possible, so as to avoid an unjust or an 

absurd conclusion.”).

But, says our colleague, this is not like a “‘rare case’ 

warranting invocation of the ‘absurd results’ doctrine.” 

(Dissent at 7 (quoting Ron Pair Enters., Inc., 489 U.S. at 242-

43).) He observes that “there is no legislative history 

contradicting the plain language construction [of § 2253(a)] 

or jurisprudential shift away from that construction, [or] any 

error in drafting [that can] be characterized as a 

‘typographical error’ ... .” (Dissent at 8.) Again, we are not 

persuaded that the statute requires proof of a lack of 

authorization to possess an imitation firearm. But, even if 

that were the most natural construction, we have never said 

that the doctrine of avoiding absurd results applies only when 

“there is no legislative history contradicting the plain 

language construction” of a statute, or there is a 

“jurisprudential shift away from that construction,” or the 

statute contains what can fairly be characterized as a 

“typographical error.” (Id.) We have not had to consider 

every circumstance in which the literal reading of a statute 

may end up being “absurd,” but we believe that a statute that 

creates an analytical impossibility would meet that definition 

and would require us to consider whether a sensible 

alternative reading is possible. 
24

requiring proof of a lack of authorization to possess an 

imitation firearm.

15 

Fontaine relies heavily on our decision in United 

States v. Daniel, 518 F.3d 205 (3d Cir. 2008) to support his 

statutory interpretation. Specifically, he contends that 

because “there is no procedure by which a person may obtain 

authorization to possess an imitation firearm[, we] should 

reverse [his] Section 2253(a) conviction using the same 

reasoning [we] employed when [we] reversed the conviction 

for unauthorized possession of ammunition in Daniel.” 

(Reply Br. at 4.) But his reliance on Daniel is misplaced.

 15 In interpreting the statute in this way, we part 

company with the District Court, which, as we have noted, 

supra, n.5, seemed to accept when ruling on Fontaine’s posttrial Rule 29 motion that the ban on possessing imitation 

firearms in the course of a violent crime may require proof of 

a lack of authorization to possess firearms only when the 

offender is a convicted felon. Despite what it said in its Rule 

29 decision, however, the District Court did instruct the jury 

that one of the elements the government had to prove to

sustain the § 2253(a) charges against Fontaine is that the 

defendant was not authorized to carry a firearm or an 

imitation thereof. (Joint App. at 345.) Since § 2253(a) does 

not require the government to prove that a defendant is not 

authorized to possess an imitation firearm, it would have been 

preferable for the District Court’s instruction to omit the 

“imitation thereof” phrase. However, to the extent that the 

District Court’s instruction was erroneous, any such error was 

harmless because the evidence introduced at trial showed that 

Fontaine did not have authorization to possess a firearm when 

he committed the robbery for which he was convicted.
25

In Daniel, the defendant was convicted of unlawfully 

possessing ammunition, in violation of V.I. Code Ann. tit. 14, 

§ 2256. Section 2256 provided that “[a]ny person, who 

unless authorized by law, possesses, purchases, manufactures, 

advertises for sale or uses any firearm ammunition shall be 

guilty of a felony.” Daniel, 518 F.3d at 207-08 (quoting V.I. 

Code Ann. tit. 14, § 2256). At the time Daniel was decided,16

Virgin Islands law “[did] not establish a licensing 

requirement for ammunition ... [n]or [did] it provide any 

specific procedure by which possession of ammunition 

[could] be licensed or otherwise authorized,” id. at 208, but

the law did “prohibit a dealer in firearms or ammunition from 

selling ammunition to anyone without a firearms license,” id. 

(citation omitted). The government argued that, because a 

firearms dealer could not lawfully sell ammunition to anyone 

who did not possess a firearms license, possession of 

ammunition could only be lawful if one first obtained a 

firearms license. Since the defendant did not have a firearms 

license, the government claimed he could not lawfully –

under § 2256 – possess ammunition. Id. 

We rejected the government’s argument based on our 

determination that there was “no basis for combining the 

offense of unlawful possession of ammunition ... with the 

 16 The statute at issue in Daniel, V.I. Code Ann. tit. 14, 

§ 2256, has since been amended to more precisely define the 

prohibition on unauthorized possession, sale, advertisement 

for sale, purchase, use, or manufacture of ammunition. 

 
26

firearm licensing provisions,” because “neither [the 

unauthorized possession of ammunition statute], nor any 

other statutory provision of which we [were] aware, ma[de] 

lawful possession of ammunition contingent on having a 

firearms license.” Id. at 209. Similarly, we held that the 

provision prohibiting a dealer from selling ammunition to 

anyone without a firearms license did not alter our conclusion 

because “[w]e [could] envision ways to acquire ammunition 

other than from a dealer.” Id. Ultimately, we held that by

showing that the defendant was not licensed to possess a 

firearm, the government did not prove beyond a reasonable 

doubt that the defendant’s possession of ammunition was 

unlawful. Id. at 206. We thus reversed the defendant’s 

conviction. Id. at 209.

Daniel is distinguishable from this case in at least three

material ways. First, as a threshold matter, it involved an 

interpretative problem that is different than the one at issue 

here. In Daniel, the authorization requirement in the statute 

related to a regulatory regime that did not then exist (i.e., the 

generalized regulation of ammunition), and we held that the 

government could not fix that legislative drafting error by 

roaming about in the Virgin Islands Code looking for another 

regulatory regime (i.e., the regulation of firearms) to make 

sense of the “authorized by law” requirement. But Daniel is 

inapposite here because there is no need to reach beyond the 

applicable statute to understand or justify the authorization 

requirement we are called to interpret. The requirement that 

one be authorized by law to possess a firearm – which relates 

to a well-established regulatory regime under Virgin Islands 

law – is in the statute itself. Both the provision limiting the 

statute to those who are authorized to possess a firearm and 

the prohibition on possession of an imitation firearm in the 
27

course of a violent crime appear together in the same 

statutory provision that Fontaine was convicted of violating. 

Second, the disputed criminal statute in Daniel was 

fairly susceptible to only one interpretation. As previously 

noted, at the time Daniel was decided, V.I. Code Ann. tit. 14,

§ 2256 provided that “[a]ny person, who unless authorized by 

law, possesses ... any firearm ammunition shall be guilty of a 

felony.” Daniel, 518 F.3d at 207-08. The only plausible 

reading of that statute was that the government had to prove 

that the accused possessed ammunition without authority to 

do so. Here, by contrast, we are faced with a statute that is 

susceptible to two different interpretations. Section 2253(a)

says that “[w]hoever, unless otherwise authorized by law, ... 

possesses ... any firearm, as defined in Title 23, section 

451(d) of this code, ... may be arrested without a warrant” 

and shall be fined and imprisoned, but it goes on to say “that 

... if such firearm or an imitation thereof was ... possessed ... 

during the commission or attempted commission of a crime of 

violence,” the violator is subject to more severe punishment. 

V.I. Code Ann. tit. 14, § 2253(a). It is possible to read that

language, as Fontaine does, as requiring the government to 

prove that someone accused of possessing an imitation

firearm during a crime of violence is not “authorized by law” 

to do so. But the more reasonable textual interpretation, as 

already discussed, is that the authorization requirement refers 

to authorization to possess a firearm, not an imitation firearm. 

Third, even though, at the time Daniel was decided, no 

Virgin Islands law required people to obtain authorization to

possess ammunition, we did not face the same kind of absurd 

outcome Fontaine argues for here. The only available 

interpretation of the statute at issue in Daniel, § 2256, was not 
28

necessarily nonsensical because, even though Virgin Islands 

law did not then directly regulate the possession of 

ammunition, it did regulate the sale of it by firearms dealers. 

Thus, it did not “def[y] rationality,” Landstar, 569 F.3d at 

498, to allow that the legislature might move to directly 

regulate possession. Indeed, when the Virgin Islands 

legislature enacted § 2256, there were already numerous state 

and federal laws governing the possession of ammunition. 

See, e.g., 18 U.S.C. § 922(d), (g) (1968) (prohibiting the 

possession of ammunition by persons who, among other 

things, are (1) under indictment for a crime punishable by 

more than 1 year of imprisonment, (2) unlawful users of a 

controlled substance, or (3) illegal aliens); see generally Ill. 

Rev. Stat. ch. 38, § 24-3.1 (regulating possession of

ammunition); Mass. Gen. Laws ch. 140, § 129C(1) (1973) 

(same). By contrast, Fontaine has pointed to no law that 

requires licensure of an imitation firearm; we are not aware of 

any such law; and we are hard-pressed to imagine that any is 

in the offing.

We thus reject Fontaine’s challenge to his conviction 

based on the assertion that the government failed to prove that 

he was not authorized to possess an imitation firearm. See 

Dowd v. United Steelworkers of Am., Local No. 286, 253 F.3d 

1093, 1099 (8th Cir. 2001) (“When the meaning of a statute is 

questionable, it should be given a sensible construction and 

construed to effectuate the underlying purposes of the law.” 

(quoting United States v. McAllister, 225 F.3d 982, 986 (8th 

Cir. 2000))); United States v. Alaniz, 235 F.3d 386, 389 (8th 

Cir. 2000) (acknowledging “duty to give an ambiguous 

statute a sensible construction”); Burns v. Stone Forest Indus., 

Inc., 147 F.3d 1182, 1185 (9th Cir. 1998) (“We should not 

choose a construction of ambiguous statutory language that 
29

would attribute irrationality to Congress, where the words 

also lend themselves to a sensible construction.”).

III. Conclusion

In sum, we hold that § 2253(a) is not void for 

vagueness because it puts a person of ordinary intelligence on 

notice that it prohibits Fontaine’s conduct in this case. In 

addition, we hold that, to prove a defendant guilty of 

possessing an imitation firearm “during the commission or 

attempted commission of a crime of violence,” V.I. Code 

Ann. tit. 14, § 2253(a), the government must show that the 

defendant lacks authorization to possess a firearm but need 

not show that the defendant lacks authorization to possess an 

imitation firearm. Accordingly, we will affirm Fontaine’s 

conviction and sentence.
United States v. Fontaine, No. 11-2602, dissenting in part 

and in the judgment.

COWEN, Circuit Judge.

I join the majority opinion regarding whether 14 V.I.C. 

§ 2253(a) is unconstitutionally vague. (Maj. Op. 11-15.) I 

respectfully dissent, however, with regard to the Majority’s 

disposition of the other issues raised by the defendant. The 

unambiguous plain language of 14 V.I.C. § 2253(a) requires 

the government to prove beyond a reasonable doubt that the 

defendant was unauthorized to possess an imitation firearm 

and evidence that the defendant did not have a license to 

possess a firearm did not meet the government’s burden of 

proof on this issue. As a result, I would reverse the judgment 

of the District Court.

(a) Authorization to Possess an Imitation Firearm

“The first step” “in all statutory construction cases” is 

“‘to determine whether the language at issue has a plain and 

unambiguous meaning.’” Barnhart v. Sigmon Coal Co., Inc., 

534 U.S. 438, 450 (2002) (quoting Robinson v. Shell Oil Co.,

519 U.S. 337, 340 (1997)). “‘When the words of a statute are 

unambiguous, then, this first canon is also the last: “judicial 

inquiry is complete.”’” Barnhardt, 534 U.S. at 462 (quoting 

Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254 

(1992) (quoting Rubin v. United States, 449 U.S. 424, 430 

(1981)) (citations omitted)). 

The language of 14 V.I.C. § 2253(a) is unambiguous 

and susceptible to only one interpretation. But instead of 

taking the first—and, in this case what should be the last—
2

step of analyzing the statute’s plain language, the Majority

reasons that the legislature intended to prohibit only those 

persons “not authorized to possess firearms from possessing 

even an imitation of a firearm during the commission of a 

crime of violence.” (Maj. Op. 18.) Notably, there is no 

evidence of this legislative intent on which the Majority’s 

conclusion is premised; indeed, it is as likely that that the 

legislature intended to criminalize brandishing an imitation 

firearm during the commission of a violence crime without 

reference to whether an individual is authorized to possess an 

actual firearm. Nevertheless, in an effort to realize this 

purported legislative intent, and to avoid what they

characterize as an “absurd result” at odds with it, the Majority

reads the statute as requiring proof of “lack of authorization 

to have a firearm . . . [for] criminal liability for possessing an 

imitation firearm in the course of a violent crime.” (Maj. Op. 

19.) The Majority attempts to ground their conclusion in the 

statutory language, stating that the unauthorization element 

appears in the first clause of the statute and the term 

“imitation thereof” does not. Therefore, according to the 

Majority, the statute can be interpreted as requiring proof that 

someone is unauthorized to possess a firearm when 

possessing an imitation during the commission of a violent 

crime. 

The Majority’s construction ignores the plain language 

grammatical structure of the statute. The statute does not 

state “Whoever, unless otherwise authorized by law to have, 

possess, bear . . . a firearm, has possesses, bears . . . .” Had 

it so stated, the Majority’s reading might be a legitimate plain 

language construction. In drafting the statute, however, the 

legislature chose not to link the authorization requirement 
3

with possession of a firearm specifically. Title 14, Section 

2253(a) of the Virgin Islands Code, provides as follows:

Whoever, unless otherwise 

authorized by law, has, 

possesses, bears, transports or 

carries either, actually or 

constructively, openly or 

concealed any firearm, as 

defined in Title 23, section 451(d) 

of this code, loaded or unloaded, 

may be arrested without a 

warrant, and shall be sentenced to 

imprisonment of not less than one 

year nor more than five years and 

shall be fined not less than $5,000 

nor more than $15,000 or both the 

fine and imprisonment, except 

that if such person shall have 

been convicted of a felony in any 

state, territory, or federal court of 

the United States, or if such 

firearm or an imitation thereof

was had, possessed, borne, 

transported or carried by or under 

the proximate control of such 

person during the commission or 

attempted commission of a crime 

of violence, as defined in 

subsection (d) hereof, then such 

person shall be fined $25,000 and 

imprisoned not less than fifteen 

(15) years nor more than twenty 
4

(20) years. The foregoing 

applicable penalties provided for 

violation of this section shall be in 

addition to the penalty provided 

for the commission of, or attempt 

to commit, the felony or crime of 

violence.

14 V.I.C. § 2253(a) (emphasis added). “Unless otherwise 

authorized” is a modifying phrase set apart by commas and 

does not refer to that which must be authorized. Under a 

plain language construction, that which must be authorized is 

understood in the context of the conduct targeted by the 

particular clause. In the first clause, the conduct that must be 

unauthorized for criminal liability is possession of a firearm; 

in the third clause, the relevant clause here, the conduct is 

possession of a firearm or imitation thereof. 

“Unless otherwise authorized” describes the statute’s 

subject, “whoever.” The word “unless” denotes an exception 

to the subject contemplated by “whoever.” “Whoever” is 

therefore understood as someone unauthorized. The third 

clause refers to “such person,” the statute’s subject, or 

“whoever.” Substituting the understanding of “whoever” as 

someone unauthorized, the relevant statutory clause would 

read “or if such firearm or an imitation thereof was had, 

possessed, borne, transported or carried by or under the 

proximate control of someone unauthorized [to 

have/possess/bear it] during the commission or attempted 

commission of a crime of violence . . . .” Unlike in the first 

clause, which is limited to the possession of firearms, in the 

third clause, the objects of “ha[ve], possess[], [bear] . . . ”are 

a “firearm and an imitation thereof.” And there is no 
5

grammatical reason to distinguish between the two objects 

that might justify requiring authorization for the possession of 

one but not the other. Because the requirement that the 

government prove the individual was unauthorized attaches to 

the subject of the statute and is in reference to the targeted 

conduct in the particular subsection, the plain language 

statutory construction unambiguously requires the 

government to show that the person was unauthorized to 

possess a firearm or imitation thereof. Accord United States 

v. McKie, 112 F.3d 626, 629 (3d Cir. 1997) (it is the 

government’s burden to prove that defendants were 

unauthorized to carry or possess); Government of Virgin 

Islands v. Bedford, 671 F.2d 758, 763 n. 7 (3d Cir.1982)

(approving a jury instruction that § 2253(a) is violated if, “the 

defendant possessed the firearm; ... he was not licensed

[authorized] to possess it; and ... it meets the definition ... of a 

firearm.”).

Moreover, our prior analysis of the language of 14 

V.I.C. § 2253(a), albeit in the context of a Double Jeopardy 

challenge, is instructive. United States v. Xavier, 2 F.3d 1281, 

1290-91 (3d Cir. 1993). In Xavier, we held that simple 

possession requires one to knowingly possess a firearm 

without authorization to possess and is a lesser included 

offense of possession during a crime of violence; the Double 

Jeopardy Clause, therefore, prevented imposing separate 

sentences for possession and possession during the 

commission of a violent crime. We stated that “[c]onviction 

for possession during a crime of violence under § 2253(a) 

requires proof of three elements: one must 1) knowingly 

possess a firearm 2) without authorization 3) during a crime 

of violence.” Xavier, 2 F.3d at 1291. The statute was meant 

to mandate minimum and maximum sentences for simple 
6

unauthorized possession, “except that if” certain additional 

circumstances were present, a greater sentence is mandated. 

Xavier, 2 F.3d at 1291. In reaching this conclusion, we did 

not parse the phrase “or if such firearm or an imitation thereof 

was had . . .,” and, as already stated, there is no structural or 

grammatical reason to distinguish within it. In accord with 

Xavier, when an imitation firearm is at issue, the statute 

would require that “one must 1) knowingly possess [an 

imitation] firearm 2) without authorization 3) during a crime 

of violence.”

As we decided in Xavier, the plain language of 14 

V.I.C. § 2253(a) establishes that possession during a crime of 

violence contains elements that simple possession does not 

contain, but the reverse is not true. All of the elements for the 

crime of simple possession are included in possession during 

a crime of violence. For the Majority’s holding to be 

understood as consistent with Xavier so that “‘each provision 

[does not] require[] proof of a fact which the other does not,’”

Id. at 1291 (quoting with alterations Blockberger v. United 

States, 284 U.S. 299, 304 (1932)), the statute would 

criminalize simple possession of an imitation firearm. Like 

the possession of a firearm in Xavier, possession of an 

imitation firearm would be the lesser included offense of 

possession during a violent crime. Considering that the term 

“imitation firearm” is without limitation, the Majority’s 

holding, when viewed in conjunction with our precedent, 

criminalizes the simple possession of a toy pistol—a truly 

“absurd result.” There is nothing that would suggest that the 

Virgin Islands legislature intended the statute sweep so 

broadly. And, in response to the defendant’s Constitutional 

vagueness challenge, the government argues the opposite. Of 

course, “the outlawing of one thing does not necessarily 
7

require the outlawing of another” (Maj. Op. n. 13), but an 

interpretation of the Majority’s holding that criminalizes only 

the type of conduct at issue in this case—and excludes 

criminalization of simple possession of an imitation firearm—

undermines our holding in Xavier by imposing a construction 

in which “each provision requires proof of a fact which the 

other does not.” Criminalizing behavior and prescribing 

punishments are strictly within the purview of the legislature. 

Here, the Majority usurps that role and simultaneously 

undermines our precedent.

Because I conclude that the statutory language is plain 

and unambiguous, I do not agree with the Majority that this 

case requires employing alternate tools of statutory 

interpretation. United States v. Ron Pair Enters., Inc., 489 

U.S. 235, 242-43 (1989). But, even conceding that 14 V.I.C. 

§ 2253(a)’s plain language construction leads to an unusual 

result of requiring the government to prove an element that 

might be impossible to prove, I do not agree that this is a 

“rare case” warranting invocation of the “absurd results” 

doctrine. Ron Pair Enters., Inc., 489 U.S. at 242-43 (“The 

plain meaning of legislation should be conclusive, except in 

the ‘rare cases [in which] the literal application of a statute 

will produce a result demonstrably at odds with the intentions 

of its drafters.’”) (alteration in original) (emphasis added).

The cases from our Circuit cited by the Majority 

illustrate the type of “rare case” in which we have 

disregarded the unambiguous plain language construction of 

the statute. For example, in Morgan v. Gay, 466 F.3d 276, 

277 (3d Cir. 2006), we concluded that the statute contained a 

typographical error; instead of “not less than 7 days” the 

statute should have stated “not more than 7 days” to appeal a 
8

remand order. In so limiting the time for an appeal, we relied 

on the fact that the plain language reading of the statute was 

directly contrary to the legislative history. And in 

Government of the Virgin Islands v. Berry, 604 F.2d 221, 

225-26 (3d Cir. 1979), we limited liability under a kidnapping 

statute by requiring that violations of the statute be analyzed 

with reference to four factors because potential liability was 

limitless under the literal meaning of the statutory language. 

We stated that this was consistent with “the modern approach 

[] to construe the kidnapping statutes so as ‘to prevent gross 

distortion of lesser crimes into a much more serious crime by 

excess of prosecutorial zeal’” and warranted in light of the 

mandatory life sentence and the absence of legislative history 

to the contrary.1

Neither of these cases is analogous to the result of a 

plain language construction of 14 V.I.C. § 2253(a). Here, 

there is no legislative history contradicting the plain language 

construction or jurisprudential shift away from that 

construction, any error in drafting cannot be characterized as 

a “typographical error,” and the interpretation urged by the 

Majority expands the scope of the conduct targeted by the 

 1 The additional case from our Circuit cited by the 

majority is Coar v. Kazimir, 990 F.2d 1413, 1419-20 (3d Cir. 

1993). Coar is inapplicable in resolving the issues before us 

because it did not address whether an unambiguous plain 

language construction of the statute should be abandoned. We 

reconciled one section of ERISA with another seemingly 

inconsistent section by finding a reading “consistent with the 

purposes of the entire statute considered as a whole.” 

(citations omitted). 
9

statute and enhances the sentence, as opposed to limiting it. 

Indeed, in United States v. Daniel, 518 F.3d 205, 208 (3d Cir. 

2008), the precise result of 14 V.I.C. § 2253(a), which the 

Majority believes “creates an analytical impossibility,” (Maj. 

Op. n. 14) was not so “absurd” as to require us to read the 

unauthorized element out of the statute. Further, each of the

results of the Majority’s holding highlighted above is as 

“absurd” as requiring the government to prove an element of 

a sentence enhancement statute. Under the guise of avoiding 

an “absurd result” the Majority invites others by ignoring the 

statute’s sentence enhancement purpose, criminalizing 

behavior not addressed by the Virgin Islands Code, and 

violating basic canons of statutory construction. 

(b) Sufficient Proof of Unauthorization

In concluding that the government was required to 

prove that the defendant was unauthorized to possess an 

imitation firearm, I next address whether the government met 

its burden. Because I conclude that evidence that the 

defendant was unauthorized to possess a firearm is not 

sufficient, I would reverse the District Court’s judgment. 

We have interpreted “unless authorized by law” to 

mean “possession without a license.” Daniel, 518 F.3d at 208;

McKie, 112 F.3d at 630. Here, however, similar to in Daniel, 

Virgin Islands law does not provide for the licensing of 

imitation firearms. Applying the same reasoning used in 

Daniel, we cannot “construe the clause ‘unless otherwise 

authorized by law’ . . . as meaning ‘unless possessing a 

license to possess [an imitation firearm].’” Daniel, 518 F.3d 

at 208. The question is then whether evidence that the 

defendant was unlicensed to possess a firearm is evidence, 
10

beyond a reasonable doubt, that he was unauthorized to 

possess an imitation firearm.

In Daniel, the defendant was convicted of 

unauthorized possession of ammunition. Virgin Islands law 

did not provide for any procedure for licensing ammunition 

possession. The government argued that proof that the 

defendant did not have a firearms license was proof that the 

ammunition possession was unauthorized because dealers 

were prohibited from selling ammunition to anyone without a 

firearms license. Daniel 518 F.3d at 208. Although 

acknowledging that ammunition is generally possessed for 

use in a firearm, we were “loath to construe these provisions 

to create an offense relating to unlawful possession of 

ammunition” because no statutory provision made “lawful 

possession of ammunition contingent on having a firearms 

license.” Id. at 208-209. Further, the provision prohibiting 

dealers from selling ammunition to persons without firearms 

licenses restricted only the conduct of dealers, not an 

individual’s possession. Id.

In accord with Daniel, absence of a license to possess 

a firearm cannot be proof beyond a reasonable doubt that the 

defendant was unauthorized to possess an imitation firearm. 

In this case, there is nothing that regulates an imitation 

firearm at all, let alone with regard to an individual’s 

possession. And nothing links authorization to possess a 

firearm to authorization to possess an imitation. The breadth 

of the term “imitation,” which is undefined in the statute, 

makes drawing a link nearly impossible. Since the only proof 

the government offers that the defendant was unauthorized to 

possess the imitation is the absence of a license to possess a 
11

firearm, the government has failed to meet its burden of 

proof.

Because I believe that the government failed to prove a 

requisite element of 14 V.I.C. § 2253(a), I respectfully dissent 

from the Majority’s judgment insofar as it holds otherwise. 

Accordingly, I would reverse the District Court’s July 22, 

2011 judgment.