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Government of Virgin Islands v. Dowling

filed: January 27, 1989.

GOVERNMENT OF THE VIRGIN ISLANDS
v.
ROBERT DOWLING, APPELLANT



Appeal from the District Court of the Virgin Islands Division of St. Croix, Christiansted Jurisdiction, D.C. Criminal No. 88-00006.

Greenberg, Scirica, and Weis, Circuit Judges.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

In this appeal defendant contends that the Sentencing Guidelines promulgated by the United States Sentencing Commission apply to offenses under the Virgin Islands Code tried in the District Court of the Virgin Islands. Finding no indication in the federal statutes that the Guidelines are applicable to a local offense, we agree with the District Court that they do not govern the sentence imposed on defendant. Accordingly, we will affirm the judgment of the District Court.

Convicted for grand larceny, defendant was sentenced to a six-year term of imprisonment. He appeals both the conviction and the sentence imposed.

After an evening of "barhopping" in Christiansted, St. Croix, on December 26, 1987, a group of friends was standing on the sidewalk outside a nightclub when defendant ran up to the group and snatched a gold chain from the neck of one of the individuals. Defendant fled in an automobile, but the victim was able to secure information from a bystander about the car and its owner.

Later that evening, the victim went to the police station to check on the progress of the investigation. While speaking to one of the officers, the victim noticed defendant in a holding cell and identified him as the man who had stolen the gold chain. Apparently, defendant had been taken into custody on an unrelated charge. He makes no contention that this confrontation with the victim was a suggestive staging by the police.

The case was tried to a jury that heard somewhat conflicting testimony as to the date, time, and location of the offense, as well as the size of the gold chain. The jury, nonetheless, found defendant guilty of committing grand larceny.

At sentencing, the district judge refused to apply the Guidelines adopted pursuant to the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551-3586 (Supp. II 1984 & Supp. IV 1986) & 28 U.S.C. §§ 991-998 (Supp. IV 1986), and instead, imposed a greater sentence as permitted by the Virgin Islands grand larceny statute, V.I. Code Ann. tit. 14, § 1083. The judge's decision was consistent with his earlier holding in Government of the Virgin Islands v. Davis, Crim. No. 88-00018 (D.V.I. 1988), appeal filed, No. 88-3603 (3d Cir. Sept. 1, 1988), currently pending before this Court.

On appeal, the defendant contends that the verdict was against the weight of the evidence. He points to variations between the police report and the testimony at trial with respect to the date of the offense as establishing the unreliability of the government's case. In addition, he notes the discrepancies in the various descriptions of the length of the gold chain as listed in the police report and during presentation of the evidence in court. The reasons for these variations in the proofs were explained during the trial and are typical of inconsistencies whose resolution is entrusted to a jury.

We find no basis in the defendant's arguments for impugning the verdict. Where there is substantial evidence to support the conviction, we must affirm. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942); Government of the Virgin Islands v. Gereau, 502 F.2d 914, 930 (3d Cir. 1974), cert. denied, 420 U.S. 909, 42 L. Ed. 2d 839, 95 S. Ct. 829 (1975).

Defendant also contends that the District Court erred in failing to impose a sentence in accordance with the Guidelines promulgated by the United States Sentencing Commission. See Sentencing Guidelines for United States Courts, 52 Fed. Reg. 44,-673 (1987). Whether the Guidelines apply to the District Court of the Virgin Islands for convictions of local offenses is an issue of first impression in this Court. Its resolution is a matter of substantial importance to the administration of the criminal justice system in the Virgin Islands.

Defendant attacks his sentence on three fronts. First, he contends that the application of the Sentencing Reform Act to "an offense described in any Federal statute," 18 U.S.C. § 3551(a) (Supp. IV 1986), reaches crimes listed in the Virgin Islands Code that are similar to federal offenses. Second, he asserts that the court's failure to apply the Guidelines deprived him of equal protection. Finally, he urges us to exercise our supervisory power to ...


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