1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-14-1997

United States v. Betancourt

Precedential or Non-Precedential:

Docket 96-7743

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Recommended Citation

"United States v. Betancourt" (1997). 1997 Decisions. Paper 105.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/105
Filed May 14, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 96-7743 

UNITED STATES OF AMERICA 

v. 

DUHANN BETANCOURT, 

APPELLANT

On Appeal From the District Court 

of the Virgin Islands (Division of St. Croix) 

(D.C. Crim. No. 96-cr-00010) 

Argued: April 8, 1997 

Before: BECKER, ROTH, and WEIS, Circuit Judges. 

(Filed May 14, 1997) 

MELODY M. WALCOTT, ESQUIRE 

 (ARGUED) 

Office of Federal Public Defender 

P.O. Box 3450 

Christiansted, St. Croix 

U.S. Virgin Islands 00822 

Attorney for Appellant
AZEKIAH E. JENNINGS, ESQUIRE 

 (ARGUED) 

Office of the United States Attorney 

1108 King Street, Suite 201 

Christiansted, St. Croix 

U.S. Virgin Islands 00820 

Attorney for Appellee

OPINION OF THE COURT 

BECKER, Circuit Judge. 

This is an appeal from the judgment of the district court 

following a jury trial convicting appellant Duhann 

Betancourt of the federal offense of possession of a firearm 

with an obliterated serial number, 18 U.S.C. § 922(k), and 

the territorial offense of possession of a sawed-off shotgun, 

14 V.I.C. § 2253(b).1 The sole question on appeal is whether 

Betancourt is entitled to vacatur of one of the convictions 

on the ground that the two offenses are multiplicitous. 

Agreeing with the district court that they are not, we affirm. 

I. 

The facts underlying Betancourt's convictions are simple, 

and are set forth in the margin.2 Betancourt's argument 

_________________________________________________________________ 

1. On the federal count, Betancourt was sentenced to sixteen months; on 

the territorial count, he was sentenced to two years, to be served 

concurrently with the federal sentence. 

2. Betancourt, along with his friends Levi Innocent and Delroy Josiah, 

was arrested when the Mitsubishi Mirage in which they were driving was 

pulled over by the Virgin Islands police. The police noticed the car after 

receiving a report that shots had been fired in the Castle Burke section 

of St. Croix. The officers searched the car and its passengers, but did not 

discover any weapons. A search of the area where the police had first 

spotted the Mirage turned up a 12-gauge sawed-off shotgun adjacent to 

the road. At the police station, Betancourt admitted that the shotgun 

was his and that he had thrown it out of the car window. While not 

relevant to the case on appeal, it is interesting to note that (codefendant) Mr. Innocent pleaded guilty. 

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that the offenses are multiplicitous, i.e., they proscribe the 

same conduct, and hence that conviction for both violates 

the Double Jeopardy Clause, requires us to consider the 

teachings of Blockburger v. United States, 284 U.S. 299 

(1932). There the Supreme Court explained that if "the 

same act or transaction constitutes a violation of two 

distinct statutory provisions, the test to be applied to 

determine whether there are two offenses or only one, is 

whether each provision requires proof of a fact which the 

other does not." Id. at 304. Thus, we must consider 

whether each offense for which Betancourt was convicted 

requires proof of a fact that the other does not. The relevant 

statutes are set forth in the margin.3 

The elements of a 18 U.S.C. § 922(k) possession offense 

are (1) knowing possession; (2) of a firearm with an 

obliterated serial number; (3) that traveled through 

interstate or foreign commerce. The elements of a 14 V.I.C. 

§ 2253(b) conviction are (1) possession; (2) of a sawed-off 

_________________________________________________________________ 

3. 18 U.S.C. § 922(k): 

It shall be unlawful for any person knowingly to transport, ship, or 

receive, in interstate or foreign commerce, anyfirearm which has 

had the importer's or manufacturer's serial number removed, 

obliterated, or altered or to possess or receive anyfirearm which has 

had the importer's or manufacturer's serial number removed, 

obliterated, or altered and has, at any time, been shipped or 

transported in interstate or foreign commerce. 

* * * * 

14 V.I.C. § 2253: 

(b) Whoever, unless otherwise authorized by law, has, possesses, 

bears, transports or carries either openly or concealed on or about 

his person, or under his control in any vehicle of any description 

any machine gun or sawed-off shotgun, as defined in subsection 

(d)(2) and (3) of this section, loaded or unloaded, may be arrested 

without a warrant, and shall be sentenced to imprisonment of not 

less than two years nor more than five years and shall be fined not 

more than $7,000 . . . . 

(d)(3) "Sawed-off shotgun" means any firearm, as defined in Title 

23, section 451(d) of this Code, designed to fire through a smooth 

bore either a number of ball shot or a single projectile, the barrel of 

which is less than 20 inches in length. 

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shotgun (a weapon with a barrel length of less than twenty 

inches); (3) that the defendant was not authorized to 

possess. Cf. United States v. Xavier, 2 F.3d 1281, 1291 (3d 

Cir. 1993) (explaining elements of a §2253(a) conviction, 

possession of a firearm). Betancourt contends that, in 

ultimate essence, the territorial offense penalizes

possession of a firearm. Additionally, he submits that the 

fact that a sawed-off shotgun was the particular firearm 

involved simply enhances the penalty for conviction under 

that provision, but does not itself constitute an element of 

the offense. Under these circumstances, the argument 

continues, conviction under the territorial provision 

requires only proof of facts also required for conviction 

under the federal provision, and the territorial offense is 

thus a lesser-included offense of the federal offense. 

We disagree. It is clear to us that each offense requires 

proof of facts that the other does not. Conviction under the 

federal provision requires proof that the firearm had an 

obliterated serial number and that it was transported in 

interstate commerce. Conviction under the territorial 

provision requires proof that the firearm was a sawed-off 

shotgun and that possession of that firearm was not

authorized by law. On its face, § 2253(b) makes clear that 

possession of a sawed-off shotgun is an element of the 

offense, not just a penalty enhancement. Moreover, even if 

Betancourt correctly argues that proof that the firearm was 

a sawed-off shotgun serves as a penalty enhancement

rather than as an element of the offense under the 

territorial statute, the government still must prove a fact 

that is not an element of the federal offense to secure a 

conviction under the territorial provision: unauthorized 

possession. Cf. Xavier, 2 F.3d at 1291 (unauthorized 

possession is an element of proving possession of afirearm 

under § 2253(a)). 

Although the purpose of a criminal provision is not an 

articulated factor in the Blockburger analysis, we also note 

that the two provisions plainly are aimed at different 

conduct. The purpose of the federal offense is to prevent an 

underground black market in illegal firearms by punishing 

conduct that makes tracing such weapons difficult. The 

purpose of the territorial offense, by contrast, is to 

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eradicate a specific type of firearm, a sawed-off shotgun, 

which the Virgin Islands legislature has apparently found 

particularly dangerous. 

In short, while Betancourt's argument that the territorial 

offense in the final analysis punishes only possession may 

have a certain facial appeal, it cannot satisfy the

Blockburger test. The judgment of the district court will be 

affirmed. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

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