U.S. v. Riviere, s. 90-3128

• Decision Date: 31 January 1991
• Docket Number: 90-3129,Nos. 90-3128,s. 90-3128
• Citation: 924 F.2d 1289
• Parties: UNITED STATES of America v. Darrel RIVIERE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1289

924 F.2d 1289

UNITED STATES of America v. Darrel RIVIERE, Appellant.

Nos. 90-3128, 90-3129.

United States Court of Appeals, Third Circuit.

Argued Dec. 4, 1990.

Decided Jan. 31, 1991.

Robert L. Tucker, Federal Public Defender, James R. Holloway (argued), Asst. Federal Public Defender, Christiansted, Virgin Islands, for appellant.

Terry M. Halpern, U.S. Atty., David M. Nissman (argued), Chief Asst. U.S. Atty., Victoria Boynton, Special Asst. U.S. Atty., Christiansted, Virgin Islands, for appellee.

Before HIGGINBOTHAM, Chief Judge, and GREENBERG and COWEN, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

Darrel Riviere appeals from the judgments of conviction entered in the District Court of the Virgin Islands on two federal informations; one charging various firearms offenses, No. 89-41, and the second charging assault of a federal marshal, No 89-133. The firearms information was filed in the district court after Riviere's extradition from the Commonwealth of Dominica on an arrest warrant issued by a magistrate of the district court on an information charging exportation of marijuana and possession of marijuana on an aircraft departing the United States. Riviere entered a conditional plea of guilty to several of the firearms offenses pending his appeal to test his contention that his prosecution for these offenses violated the extradition treaty between Dominica and the United States. The assault information was filed after Riviere resisted being transported to Puerto Rico from St. Croix pending his sentencing on the firearms offenses. He subsequently pleaded guilty to the assault of a federal marshal.

Riviere contends that inasmuch as he was not extradited for the firearms offenses, his prosecution for them violated the treaty applicable to Dominica-United States extraditions. He also asserts that his prosecution for the firearms offenses violated the double jeopardy and dual criminality provisions of the treaty and denied him due process of law, and that his extradition for the marijuana offenses was a sham. Finally, he urges that the district court erred in its application of the guidelines in sentencing on both the firearms and assault convictions.

We have jurisdiction under 28 U.S.C. Sec. 1291 as well as under 18 U.S.C. Sec. 3742(a), which provides that a defendant may file an appeal for review of an otherwise final sentence where the sentence "is imposed as a result of an incorrect application of the sentencing guidelines," id. Sec. 3742(a)(2), or where the sentence is greater than the maximum sentence specified by the guidelines range, id. Sec. 3742(a)(3).

We conclude that in light of an express waiver by the Commonwealth of Dominica of any restrictions on his prosecution by the United States, Riviere cannot successfully assert rights under the treaty. Furthermore, we hold that Riviere's due process rights were not violated and that the proceedings by which he was extradited were not a sham. We conclude, however, that the district court erred in applying the guidelines when it did not group the firearms convictions as closely-related counts and when it departed upward from the guidelines based on disruption of governmental functions on the assault conviction. We are satisfied, however, that the district court correctly refused to credit Riviere for acceptance of responsibility on the assault conviction. We, therefore, will affirm the judgment of conviction for the firearms offenses, but vacate both sentences and remand for sentencing.

I. FACTS AND PROCEDURES

Dominican customs agents arrested Riviere when he arrived in Dominica on a chartered flight from St. Croix on April 6, 1989, in possession of machine guns, silencers, subsonic ammunition designed for use with silencers, electronic triggering devices, and a semi-automatic pistol with obliterated serial numbers. The agents found the weapons and a small quantity of marijuana in Riviere's possession and charged him with unlawful firearms possession and possession of marijuana. There is evidence in the record that Riviere offered Dominican officials a bribe of $5,000.00 to secure his freedom. App. at 251. On April 7, 1989, Riviere pleaded guilty in a Dominican court to six offenses arising from these events and was sentenced to 42 months in prison or a fine which he paid. Id. at 249.

It is clear that the matter quickly came to the attention of the United States government, for the United States Embassy in Barbados on April 7, 1989, requested that Dominica detain Riviere. A Dominican magistrate signed a warrant for Riviere's arrest on April 8, based on an accusation of an extraditable crime, and the warrant was executed on April 10. Id. at 243, 248. A formal arrest warrant for Riviere was then signed and issued on April 10, 1989, in St. Croix predicated upon violations of 21 U.S.C. Secs. 953 and 955, which respectively prohibit exporting a Schedule I or II controlled substance (marijuana) and departing from the United States on board a vessel or aircraft in possession of such a controlled substance. App. at 250, 257. The information upon which the warrant issued, No. 89-35, charged Riviere with these offenses as well as with an earlier incident involving possession of crack with intent to distribute in violation of 21 U.S.C. Sec. 841(a). App. at 253. The embassy then again requested the Dominican government to detain Riviere for extradition but in its note referred only to the count for violating 21 U.S.C. Sec. 955. Though this note is dated April 11, it was stamped received by the Dominican Attorney General's Office on April 10. App. at 257. ¹

A Dominican magistrate held an extradition hearing on April 12, 1989, under the Dominican Extradition Act of 1980 and the applicable Extradition Treaty Between the Governments of the United States of America and the United Kingdom of Great Britain and Northern Ireland, June 8, 1972 ("US-UK Treaty"), 28 U.S.T. 227, T.I.A.S. No. 8468 (entered into force on June 21, 1977). ² Although the magistrate was troubled by the lack of proof of authenticity of the documentary evidence presented by the prosecution, he overruled Riviere's objection that a case under 21 U.S.C. Sec. 955 for departing from the United States in possession of marijuana had not been established and, accordingly, on April 17, he signed a "form of warrant of committal" for Riviere's extradition. App. at 227, 240-41. This warrant indicated that Riviere was being surrendered for "the offence of Unlawfully exporting Narcotics," and was thus predicated on a violation of 21 U.S.C. Sec. 953.

Notably, the Attorney General and Minister for Legal Affairs, Immigration, and Labour of Dominica on April 14, 1989, executed a waiver of "any and all Rights of Objection and Protest of the Commonwealth of Dominica" under Article XII of the US-UK Treaty. App. at 209. This instrument states that Dominica does not and will not object to Riviere's prosecution for "any and all criminal offences committed either prior to or subsequent to his Extradition," including "criminal offences the facts in respect of which were not established during the forementioned Extradition Hearing" and "criminal offences for which his Extradition was not requested." Id.

On May 2, 1989, a seven count information, No. 89-41, was filed in the District Court of the Virgin Islands against Riviere charging him with various firearms offenses. ³ Id. at 4-6. Riviere moved to dismiss the information, asserting that he was illegally extradited to the United States in violation of "his due process rights" and the extradition treaty, but the District Court of the Virgin Islands denied this motion on August 24, 1989. Id. at 8. On August 15, 1989, Riviere entered a conditional plea of guilty to counts one, five, and six of this information pursuant to a plea agreement in which the government agreed to dismiss Information No. 89-35, ⁴ charging the narcotics offenses, as well as a separate information, No. 89-34, asserting certain Virgin Islands charges. Counts one, five, and six, respectively, charged possession of a firearm by a felon, delivery of firearms to a common/contract carrier, and possession of an altered firearm. The government also agreed to waive filing habitual offender papers, ⁵ and not to prosecute a fourth information in which Riviere was charged with assaulting a witness scheduled to testify against him. Id. at 22-23, 75.

Riviere was originally to be sentenced on the firearms counts on October 25, 1989, but the sentencing was postponed. On October 25, 1989, Riviere assaulted five federal marshals transporting him to the airport for a commercial flight to Puerto Rico, where he would be held until the new sentencing date. See id. at 13-15. The marshals then returned Riviere to prison on St. Croix until they could arrange alternative transportation.

As a result of this incident, Riviere was charged in Information No. 89-133 with five counts of assaulting the marshals while engaged in performance of their duties, contrary to 18 U.S.C. Sec. 111. App. at 125. However, in exchange for Riviere's plea of guilty to one of the counts, the government agreed to dismiss the remaining four counts and not to file an habitual criminal information against Riviere. Id. at 108. Thus, Riviere was sentenced on both the firearms and assault informations on the same day.

The presentence report for the weapons offenses made the following computations. The base offense level was 9 for possession of firearms by a prohibited person, as established in guidelines Sec. 2K2.1(a) prior to the amendment effective November 1, 1989. ⁶ But there was an increase in 1 level because of the obliterated serial numbers under guidelines Sec. 2K2.1(b)(1), so that the adjusted offenses level was 10. Inasmuch as the three firearms offenses were not grouped, 3 levels were added under guidelines Sec. 3D1.4 so that the combined adjusted offense level was 13. ⁷ The report, however, provided for...