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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________

No. 00-2266

___________

UNITED STATES OF AMERICA

v.

NAZARETH VICTORIA, Appellan t

__________________________________________ _____ On Appeal from the United States District Court for the Western District of Pennsylvan ia D.C. Criminal No. 00-cr-00004-1 (Honorable Donald E. Ziegler)

___________________

Submitted Pursuant to Third Circuit LAR 34 .1(a) January 17, 2002

Before: SCIRICA and ROSENN, Circuit Judges, and KA NE, District Judge*

(Filed February 11, 2002)

*The Honorable Yvette Kane, United States Dist rict Judge for the Middle District of Pennsylvania, sitting by designation.

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MEMORANDUM OPINION

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SCIRICA, Circuit Judge.

This is an appeal from a judgment of convictio n and sentence in the United States District Court for the Western District of Pennsylv ania. After a jury trial, NazarethVictoria was convicted of one count of conspiracy t o distribute and

possess with intent to distribute in excess of fifty kilograms of marijuan a, in violation of 21 U.S.C.A.  846. On appeal, Victoria contends the District Court erred in failing to grant an aberrant behavior departure under U.S.S.G.  5K2.20. Victoria also argues the District Court erred in determining he did not have standing to seek suppre ssion of certain evidence used against him at trial. We will affirm. I Nazareth Victoria was convicted on April 10, 2 000. The Presentence Investigation Report determined Victoria's criminal history categ ory was one and his offense level was twenty-two. As a result, the guideline imprisonmen t range was forty-one to fifty-one months. Victoria raised the issue of an aberrant b ehavior departure in his response to the presentence report. The District Court refused to depart downward based on aberrant behavior. On July 21, 2000, the Court sentenced Vi ctoria to 41 months' incarceration. Victoria contends this matter should be remand ed for resentencing so the District Court can consider "aberrant behavior" under U.S.S. G.  5K2.20, which went into effect on November 1, 2000. When the District Court senten ced Victoria on July 21, 2000, it considered the issue of aberrant behavior before de nying his request for a downward sentencing departure. But the District Court did n ot consider whether Victoria's actions constituted "aberrant behavior" under  5K2.20 of the Sentencing Guidelines because that section had not yet taken effect. We have held that "  5K2.20 was a substantive change to the Sentencing Guidelines and cannot be applied retroactively." U nited States. v. Spinello, 265 F.3d 150, 162 (3d Cir. 2001). As a result,  5K2.20 is inapplicable here and Victoria's argument is meritless. For this reason, we will affirm the jud gment of sentence. II Victoria contends the District Court erred in finding he lacked standing to seek suppression of certain evidence used against him at trial. "Standing to challenge a search requires that the individual challenging the search have a reasonable expectation of privacy in the property searched, and that he manif est a subjective expectation of privacyin the property searched." United States v. Baker, 221 F.3d 438, 441 (3d

Cir. 2000) (citations omitted). It is clear that Victoria, wh o was neither the renter, passenger or driver, did not have a reasonable expectation of pr ivacy in the vehicle. See Baker, 221 F.3d at 442 (citing Rakas v. Illinois, 439 U.S. 12 8, 143 (1978), for the proposition that "there is no legitimacy to a defendant's expectatio ns of privacy where the area searched is in the control of a third party"). Victoria's alleged expectation of privacy is b ased on a phone call to the rental car company, his loading of several cases of wine into the vehicle, and his loading of three duffel bags containing 165 pounds of marijuana into the vehicle. Victoria did not execute a contract with the rental car company; he did not operate or control the vehicle at any time; he was not a passenger in the vehicle; and he claimed no property interest in the vehicle or the duffel bags of marijuana. Based on the circumstances of this case, Victoria had no legitimate and reasonable expectation of pri vacy in the car or its contents. Rakas, 439 U.S. at 133-34 : Fourth Amendment rights are personal righ ts which, like some other constitutional rights, may not be vicariously asserted. A pe rson who is aggrieved by an illegal search and seizure only through the introducti on of damaging evidence secured by a search of a third person's premises or prope rty has not had any of his Fourth Amendment rights infringed. (quotations and ci tations omitted).

As a result, the District Court correctly conc luded that Victoria lacked standing to challenge the search and seizure of evidence from t he vehicle.

III We will affirm the judgment of conviction an d sentence.TO THE CLERK:

Please file the foregoing opinion.

/s/ Anthony J. Sciri ca Circuit Judge