2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-11-2002

USA v. Victoria

Precedential or Non-Precedential:

Docket 0-2266

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Recommended Citation

"USA v. Victoria" (2002). 2002 Decisions. Paper 115.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/115
 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 00-2266 

 ___________ 

 UNITED STATES OF AMERICA 

 

 v. 

 NAZARETH VICTORIA, 

 Appellant 

 _______________________________________________ 

 On Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 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 KANE, District Judge* 

 (Filed February 11, 2002) 

 

 *The Honorable Yvette Kane, United States District Judge for the 

Middle District of 

Pennsylvania, sitting by designation. 

 ______________ 

 MEMORANDUM OPINION 

 ______________ 

SCIRICA, Circuit Judge. 

 This is an appeal from a judgment of conviction and sentence in the 

United States 

District Court for the Western District of Pennsylvania. After a jury 

trial, Nazareth 
Victoria was convicted of one count of conspiracy to distribute and 

possess with intent to 

distribute in excess of fifty kilograms of marijuana, 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 suppression of certain 

evidence used against 

him at trial. We will affirm. 

 I 

 Nazareth Victoria was convicted on April 10, 2000. The Presentence 

Investigation 

Report determined Victoria's criminal history category was one and his 

offense level was 

twenty-two. As a result, the guideline imprisonment range was forty-one 

to fifty-one 

months. Victoria raised the issue of an aberrant behavior 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 Victoria to 41 months' 

incarceration. 

 Victoria contends this matter should be remanded 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 sentenced Victoria on July 

21, 2000, it 

considered the issue of aberrant behavior before denying his request for a 

downward 

sentencing departure. But the District Court did not 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." United 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 judgment 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 manifest a subjective 

expectation of privacy 
in the property searched." United States v. Baker, 221 F.3d 438, 441 (3d 

Cir. 2000) 

(citations omitted). It is clear that Victoria, who was neither the 

renter, passenger or 

driver, did not have a reasonable expectation of privacy in the vehicle. 

See Baker, 221 

F.3d at 442 (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978), for the 

proposition that 

"there is no legitimacy to a defendant's expectations of privacy where the 

area searched is 

in the control of a third party"). 

 Victoria's alleged expectation of privacy is based 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 privacy in the car or its 

contents. Rakas, 

439 U.S. at 133-34 : 

 Fourth Amendment rights are personal rights which, like some 

other constitutional 

 rights, may not be vicariously asserted. A person who is aggrieved 

by an illegal 

 search and seizure only through the introduction of damaging evidence 

secured by 

 a search of a third person's premises or property has not had any of 

his Fourth 

 Amendment rights infringed. (quotations and citations omitted). 

 As a result, the District Court correctly concluded that Victoria 

lacked standing to 

challenge the search and seizure of evidence from the vehicle. 

 III 

 We will affirm the judgment of conviction and sentence.
 

TO THE CLERK: 

 Please file the foregoing opinion. 

 /s/ Anthony J. Scirica 

 Circuit Judge