## 1997 D e c i sion s O p inion s of the U nit e d
S t a t e s C our t of Appe al s for the Thir d C ir c uit

5-14-1997 

# U nit ed S t a t es v

. B et a ncour t

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 96-7743

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1997

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1997 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

## R e c omme nde d C it a t ion

" U nit e d S t a t e s v

. Be t a nc our t " (1997). 1997 D e cisio n s

. P a pe r 105. h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1997/105Filed 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 AppellantAZEKIAH 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-of f shotgun, 14 V.I.C. § 2253(b).1 The sole question on appeal i s whether
Betancourt is entitled to vacatur of one of the con victions on the ground that the two offenses are multiplicit ous. Agreeing with the district court that they are not, we affirm.

I.

The facts underlying Betancourt's convictions are s imple, and are set forth in the margin.2 Betancourt's argu ment

___________________________________________________ ______________

1. On the federal count, Betancourt was sentenced t o sixteen months; on the territorial count, he was sentenced to two year s, 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 th ey were driving was pulled over by the Virgin Islands police. The polic e 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 th e police had first spotted the Mirage turned up a 12-gauge sawed-off s hotgun adjacent to the road. At the police station, Betancourt admitte d that the shotgun
was his and that he had thrown it out of the car wi ndow. While not relevant to the case on appeal, it is interesting t o note that (codefendant) Mr. Innocent pleaded guilty.

2that the offenses are multiplicitous, i.e., they pr oscribe the

same conduct, and hence that conviction for both vi olates 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 appli ed to determine whether there are two offenses or only on e, is whether each provision requires proof of a fact whi ch the
other does not." Id. at 304. Thus, we must consider
whether each offense for which Betancourt was convi cted requires proof of a fact that the other does not. T he relevant statutes are set forth in the margin.3

The elements of a 18 U.S.C. § 922(k) possession off ense are (1) knowing possession; (2) of a firearm with a n obliterated serial number; (3) that traveled throug h interstate or foreign commerce. The elements of a 1 4 V.I.C. § 2253(b) conviction are (1) possession; (2) of a s awed-off

___________________________________________________ ______________

3. 18 U.S.C. § 922(k):

It shall be unlawful for any person knowingly to tr ansport, ship, or receive, in interstate or foreign commerce, anyfire arm which has had the importer's or manufacturer's serial number removed, obliterated, or altered or to possess or receive an yfirearm 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, ha s, possesses, bears, transports or carries either openly or conce aled 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 impris onment of not less than two years nor more than five years and sh all be fined not more than $7,000 . . . .

(d)(3) "Sawed-off shotgun" means any firearm, as de fined in Title 23, section 451(d) of this Code, designed to fire t hrough a smooth bore either a number of ball shot or a single proje ctile, the barrel of which is less than 20 inches in length.

3shotgun (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) convi ction, possession of a firearm). Betancourt contends that, in ultimate essence, the territorial offense penalizes possession of a firearm. Additionally, he submits t hat the fact that a sawed-off shotgun was the particular fi rearm involved simply enhances the penalty for conviction under that provision, but does not itself constitute an e lement of the offense. Under these circumstances, the argumen t continues, conviction under the territorial provisi on requires only proof of facts also required for conv iction under the federal provision, and the territorial of fense is
thus a lesser-included offense of the federal offen se.

We disagree. It is clear to us that each offense re quires proof of facts that the other does not. Conviction under the federal provision requires proof that the firearm h ad an obliterated serial number and that it was transport ed in
interstate commerce. Conviction under the territori al provision requires proof that the firearm was a saw ed-off shotgun and that possession of that firearm was not authorized by law. On its face, § 2253(b) makes cle ar 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 fir earm 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 prov e a fact
that is not an element of the federal offense to se cure a conviction under the territorial provision: unautho rized possession. Cf. Xavier , 2 F.3d at 1291 (unauthorized possession is an element of proving possession of a firearm 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 differ ent conduct. The purpose of the federal offense is to p revent an underground black market in illegal firearms by pun ishing conduct that makes tracing such weapons difficult. The purpose of the territorial offense, by contrast, is to

4eradicate a specific type of firearm, a sawed-off s hotgun,

which the Virgin Islands legislature has apparently found particularly dangerous.

In short, while Betancourt's argument that the terr itorial offense in the final analysis punishes only possess ion 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

5