PRECEDENTIA L

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

- 0 00 50

- 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]

Duensi ng, 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.

– S uite 260

Cha rlotte Amalie, St. Thomas, VI 00802

Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge

.

Ri chie 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 vio lence, 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

“im itation” firearm, which, und er 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 companion 1 forced them to stop and get
out of their car

. Fontaine was brandishing what appeared to

be a black hand gun, while his companion had what appeared

to be a silver hand gun

. 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

Marti nez and took his wallet, jewelry

, and cell phone , while

Fontaine searched Geron and took his wallet and a steel

brac elet. 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 . Martin ez told Fontaine that Fontaine’s accomplice, who had by then

wal ked across the street, had the mon ey

. 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 posse ssion when

he robbed Martinez and Geron.

1 The police never located Fontaine’s accomplice, and his identity is unknown

.4 B. Procedural History

O n 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 v iolence, in violation of 14 V.I. Code Ann. tit. 14, § 2253(a)

. 2

2 Section 2253(a) provides: Because law enforcement

author ities 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, load ed 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

suc h 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 dur ing 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 imprisoned5 not less than fifteen (15) years nor more than twenty (20) years. The foregoing applicable penalt ies 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. Coun t 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). Th e statute at issue here figures in Counts Three, Five, Se ven, Nine, Eleven, and Thirteen, which charged Fontaine with unauthorized possession of a firearm or “imitation thereof” during the

commission of a crime of viol ence, 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 violat ing § 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 t he intent to commit robbery. Count Nine charges Fontaine with violating6 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 Cou rt initially denied the motion but then became “concerned that the counts that charge the possession of a firearm during a crime of violence ma y have an elemental proof issue. ” ( Joint A pp. at 311 .) The Court

3 Federal R ule of Criminal Procedure 29(a) provides:

After the government closes its evidence or

after the close of all the evide nce, the court on

the defendant’ s motion must enter a judgment of acquittal of any offense for which the

evidence is insufficient to susta in 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 g overnment’ s evidence, the defendant may offer evidence

without ha ving 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 i d. at 320 (“And the way the statute is written, or the w ay i t’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.

B efore definitively resolving that issue, t he District

Cour t instructed the jury that , for the government to sustain its burden of proving that Font aine was guilty of unaut horized 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, t he 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 p ut those in the community on notice [as to] which crimes are penalized, [and] what type of conduct is pro hibited.” ( Id

. at 474.) The C ourt also held that

,

exc ept to the extent of showing a defendant was a convicted felon, § 2253(a) did not require the go vernment 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 J oint 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). Fo ntaine was

Whoever has posses [sic], bears, transports or carries either, ac tually 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 f ive 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

imit ation 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

vio lence.

( 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 a uthorized 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 su ch 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 con currently. This timely appeal followed.

II

. Discussion 6

Fontaine appeals his conviction on two grounds:

f

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

unconstitutional because t he statute is unconstitutionally

vague ; second, he argues that th e 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 th ereof.” ( 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 th at 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 fire arm. We will uphold the conviction b ecause § 2253(a) clearly proscrib es Fontaine’s conduct in this c ase, and because, sensibly read,

it require s 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

- V a gueness Challenge 7

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.

Fullm er , 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 a s

“ 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 twen ty (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, a s noted, t he 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

pena lizing 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 en forcement.” (Appellant’s Br. at 7, 8.) We disagree.

The void

- for

- vagueness doctrine reflects the fundamental principle that, in order to comply with the requirem ents of due process, a statute must give fair warning13 o f the conduct that it prohibits

. Se e 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

ap plication violates the first essential of due pr ocess 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

reasonabl e 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) (i nternal quotation marks and citation omitted ). Where, as here, a statute does not involve rights guaranteed by the First

Am endment

, 9

9 In the context of a case arising under the First Amendment, “we are concerned with the vagueness of the

statute ‘on its fac e’ 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 Amendment14 freedoms must be examined in the light of the facts of the

case at h and. ” (citation omitted )).

Fontaine’s vo id

- for

- vagueness challenge fails because § 2253(a) is abundantly clear as applied to his conduct in this

case . As previously described

, the statute prohib its 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. S ee, 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, cont emporary, common meaning” in ass essing 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

c onstrue 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 sta tute 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 e d. (200 2). Thus, § 2253(a) imposes punishment on anyone who, while committing or attempting15 to commit a crime of violence, possesses an object that is “produced as a copy” of, or “appear[s] like,” a firear m. During the trial, both Martinez and Geron test ified that

Fontaine brandished a black object they recognized as a gun

w hen he robbed them

. In fact

, Fontaine held it to Martinez’s head and pulled the trigger. There is no qu estion that a person of or dinary 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

perso n of ordinary intelligence would understand that the statute proscribes Fontaine’s conduct in this case

, it is not

unconstitutiona lly 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 p rosecution ... .” (Appellant’s Br. at 9.) As already noted, a statute is unconstitutionally v ague 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 (198 3) (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 statute16 B. The Demand for Proof of Unauthorized

Possession of an Imitation Firearm 12

Fontaine also argues that

, e ven if w e determine that § 2253(a) is not unconstitutionally vague, we should reverse

his c o nviction because, under that statute , the government had

the burden of proving that he was not authorized to possess a n imitation firearm, and i t failed to do so

. He is, h owever, mistaken in his p remise 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 m eaning of legislation sho uld 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 (1 989) (internal quotation marks and

encourages enforcement against people who hav e 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 interp ret 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 Cour t 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 , 11 2 F.3d 626, 631 (3d Cir. 1997 ) ; see also I n 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, a s 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 n ot 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 conclus ion” tha t, despite the language of the

statute, the violent crimes in a id 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 (4t h 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 ser ve 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

brea ched their fiduciary duties to ... pension plan’ to evad e 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 ren ders the statute

“nonsensical and superfluous,” Corley v. United Stat es , 556 U.S. 303, 314 (2009) ; s ee 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 co uld not have ‘intended’ it”).

We hold that § 2253(a) does not require the
government to p rove that Fontaine lacked authorization to carry an imitation fir earm , because , first, we do not think the language of the statute necessarily leads to such a requir ement, and, second, to hold otherwise would require us to adopt an interpretation of the st atute 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 Vi rgin 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 emerge s from the wording of the statute, which limit s 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 of19 imprisonment. The most r easonable interpretation of § 2253(a) is not one that requires proof that a perpetrator lacks authorization to carry an imitation firearm, but rather

on e that requires proof of a lack of authorization to carry any

“ firearm ,” as that term is statutorily def ined

. 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 distin guish 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 mus t prove that the defendant is not authorized to possess an imitation firearm in order to20 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 o f 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 interpret ation. 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

pos session 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 prohib iting 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] who21 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 legislatu re 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

. R eal guns can of

course cause injury and deat h

, but possessing even a fake gun during a violent crime can have serious consequences , including caus ing the victims to fear for their lives, as Fontaine’s murderous threats in this case amply demonstrate.

As to the second point, e ven if a literal rea ding of the

statute did demand the construction that Fontaine gives § 2253(a) , we would reject that reading because it leads to an

absurd result . T here is no statute or regulation in the Virgin

Islands that requires an individual to ob tain authorization o r 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 viol ence” 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 § 225 3(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 th e 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 contemplate d a new program for licensing fake

firearms

– even realistic ones

– and for t urn ing Toys “ R ” Us
and Kmart into regulated dealers of cap guns

. 14

14 Our dissenting colle ague 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 legisla ture 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 Diss ent 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 w e 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 inte ntions 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 possibl e. See In re Chapman , 166 U.S. at 6 67 (“[N]othing is better settled than that statutes should receive a We decline23 to adopt Fontaine’s reading of § 2253(a) , and instead choose

to construe the statute as requiring onl y 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, s ays 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 lan guage 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 langu age 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 lite ral reading of a statute may end up being “absurd,” but we believe that a statute that

creates an ana lytical impossibility would meet that definition and would require us to consider whether a sensible alternative reading is possible

.24 requir ing 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

reason ing [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 t he 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 post

trial Rule 29 motion that the ban on possessing imitation firearms in the course of a violent crime may re quire 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 posse ss an imitation firearm, it would have been

pr eferable for the District Court’s instruction to omit the

“ imit ation thereof” phrase. However, to the extent that the District Court’s instruction was erroneous, any such error was

harmless because the evidenc e 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 unlawful ly possessing ammunition , in violatio n 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 wh ich 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 lawfu lly 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 “neith er [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 prohibi ting 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 no t 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. W e thus reversed the defendant’s

conviction

. Id. at 209.

Daniel is distinguishable from thi s 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
relate d to a regulator y 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

roam ing about in the Virgin Islands C ode looking for another regulatory regime ( i.e. , the re gulation 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 . T he 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 the27 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 susc eptible 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 , 51 8 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 interp retations . 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 Vir gin Islands law required people to obtain authorization to possess ammunition

, we di d 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 not28 necessarily nonsensical because, even though Virgin Islands

law did not then directly regulate the po ssession of ammunition, it did regulate the sale of it by firearms dealers. Thus, it did no t “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 legisl ature 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 indictme nt for a crime punishable by more than 1 year of imprisonment, (2) unlawful user s of a controlled substance, or (3) illegal aliens); see generally I ll. Rev. Stat. ch. 38, § 24

- 3.1 ( regulating possession of

ammunition ); Mass. G en. Laws ch. 140, § 129C(1) (1 973 ) (same). By contrast, Fontaine has pointed to no law that requires licensure of an imitation firearm ; w e 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 convict ion

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 questi onable, 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) (ackno wledging “duty to give an ambiguous

st atute 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 that29 would attribute irrationality to Congr ess, 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 ca se. 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 auth orization 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

. 1 1

- 15 .) I respectfully dissent, however, wit h 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 imitatio n 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 t he 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 w ithout reference to whether an individual is authorized to possess an actual firearm. Nevertheless, in an effort to realize this purported legislative intent, and t o 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 o f 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 t o 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 l aw 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 req uirement3 with possession of a firearm specifically. Title 14, Section 2253(a) of the Virgin Island s Code, provides as follows:

Whoever, unless otherwise authorized by law, has,

possesses , bears, transports or carries either, actually or constructively, o penly 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 les s 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, poss essed, 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 twenty4 (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). “ U nless 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 con text 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 i mitation 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 ref ers to “such person,” the statute’s subject, or

“whoever.” Substituting th e 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

commissi on 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 no5 grammatical reason to distinguish between the two objects that might justify requiring authorization for the possession of

one but no t 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 unamb iguously 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

. U nited States v. Xavier , 2 F.3d 1281,

1290

- 91 (3d Cir. 1993). In Xavier , we held that simpl e 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 simple6 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 imit ation 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 po ssession 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. F or the Majority ’s h olding 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

cr iminalize 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” i s 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 s tatute 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 necessarily7 require the outlawing of another” (Maj. Op. n. 13), but a n in terpretation 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 pro vision requires proof of a fact which the

other does no t. ” 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 M ajority 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 r esults”

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

o f 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 Mo rgan 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 a8 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

s tatute 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 contr ary. 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, an y 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 consi dered as a whole.” (citations omitted).9 statute and enhances the sentence, as opposed to limiting it. Indeed, in U nited 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 statu te. Further

, each of the

result s 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 i gnoring 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 requ ired 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 r everse 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 th e 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 possessio n 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 becaus e 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 o ffense 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 perso ns 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 pos sess 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 a11 f

irearm, 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. According ly, I would reverse the District Court’s July 22, 2011 judgment.