United States of America v. Remy Augustin

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-2795
UNITED STATES OF AMERICA
v.
REMY AUGUSTIN,
Appellant
ON APPEAL FROM THE DISTRICT
COURT OF THE VIRGIN ISLANDS
D.C. Crim. No. 01-cr-00027-2
District Judge: The Honorable Raymond
L. Finch, Chief Judge
Argued: May 7, 2004
Before: BARRY, AM BRO, and SMITH,
Circuit Judges
(Opinion Filed: July 23, 2004)
Eric S. Chancellor, Esq. (Argued)
Suite 7
2111 Company Street
Christiansted, St. Croix
USVI, 00820
Attorney for Appellant
Alphonso G. Andrews, Jr. (Argued)
Office of the United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
USVI, 00820
Attorney for Appellee
OPINION OF THE COURT
BARRY, Circuit Judge
Remy Augustin was convicted in
the District Court of the Virgin Islands of
carjacking, in violation of 18 U.S.C. §
2119, and of possession of a firearm by a
drug user, in violation of 18 U.S.C. §
922(g)(3). He asserts, on appeal, that
the government failed to present
sufficient evidence to support either of
his convictions under § 2119 or his
conviction under § 922(g)(3). We agree
as to the latter and, thus, will vacate that
conviction. The judgment and sentence
will otherwise be affirmed.1
I. BACKGROUND2
1The District Court had jurisdiction
under 48 U.S.C. § 1612. We have
jurisdiction under 18 U.S.C. § 3742(a)
and 28 U.S.C. § 1291.
2We express our displeasure at the
inadequate appendices provided by the
parties. Augustin, whose sole argument
on appeal is the insufficiency of the
evidence, has provided us with the
testimony of only one witness,

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2
In the early evening of June 28,
1996, Remy Augustin, along with Alex
DeJesus and Lorenzo “Tito” Robles,
were “hanging out” on the steps of a
public housing project, smoking
marijuana with a group of people.
According to DeJesus, who later pled
guilty and testified for the government,
“[e]verybody smoke marijuana . . . I
can’t remember who pass it or however it
come [sic].” As the night wore on, the
trio split from the group to “go on a run.”
This “run,” which began shortly before
midnight on June 28 and continued into
the early morning hours of June 29,
resulted in three carjackings involving
violence, two committed by all three men
and the third only by Robles and
DeJesus.
Augustin, Robles, and DeJesus
began their crime spree soon after
splitting from the group. Dressed in
camouflage jackets and wearing stocking
masks, they crouched behind a row of
bushes. Robles, apparently without
notice to the others, grabbed a stone and
hurled it at a passing car, forcing it to
stop. Robles leapt from behind the
bushes and charged the car. Augustin
and DeJesus, close on his heels, saw
Robles pin the driver face down in the
street with a gun pointed at his head.
After taking the victim’s money, Robles
ordered him to run, and the three men
sped away in the victim’s car. According
to DeJesus, neither he nor Augustin
knew that Robles intended to commit a
carjacking, or that Robles had a gun.
Perhaps not surprisingly, however, given
their camouflage clothing, hiding place,
and masks, DeJesus “ had a feeling I
know [sic] what was going on.”
It was approximately one o’clock
in the morning when, following a spell of
joyriding in the commandeered car, the
trio headed to another part of town.
Fearing that the victim of the earlier
hijacking might have alerted the police to
their crime and provided a description of
the car, the men decided to abandon it.
Robles maneuvered the car to cut off
another driver, forcing him to stop.
Augustin, now carrying the gun, charged
the cornered driver, and ordered him into
the back seat. Robles pulled the first car
over to the side of the road, and the three
men drove away in the second car, taking
the victim with them.
Believing he was in danger, the
victim jumped out of the car but was
quickly apprehended by Augustin, who
knocked him to the ground, hit him on
the head with the gun, and picked him
up, putting him in the trunk of the car.
The trio again drove off, stopping at a
beach. The victim was taken out of the
trunk, thrown to the ground and beaten,
and made to take off all of his clothes.
The three men kicked the now-naked
cooperating witness DeJesus. The
government, for its part, has graced us
with only parts of the direct and very
compelling testimony of the victims,
neither of which it even identified, and
none of the cross-examination.

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3
victim and hit him with their fists. When
they were finished, they put him back
into the trunk and drove him to a cliff,
where he was taken from the car and his
hands tied behind his back. One of the
men said, “Shoot him twice in the head.”
Another said, “No, let him stand up, let
him run and jump over the cliff.” The
gun was pointed at him, and he heard
someone say to run. The victim ran,
rolling into high grass and screaming so
that the men would believe that he had,
in fact, jumped over the cliff. The trio
then drove away in the victim’s car.
Augustin was arrested and
prosecuted for his role in the events of
June 28 and 29. Following trial, he was
convicted of two counts of carjacking
under 18 U.S.C. § 2119; one count of use
of a firearm during a crime of violence –
the second carjacking – under 18 U.S.C.
§ 924(c); and two counts of possession of
a firearm by a drug user under 18 U.S.C.
§ 922(g)(3).3 A sentence of
imprisonment of 135 months was
imposed on the convictions for
carjacking and possession of a firearm by
a drug user, to be followed by a
mandatory 240 month term of
imprisonment for use of a firearm during
a crime of violence. Augustin appeals
only the convictions for carjacking and
for possession of a firearm by a drug
user, although the conviction for use of a
firearm during a crime of violence
would, of necessity, be vacated were his
challenge to the second carjacking
conviction successful.
II. DISCUSSION
Augustin contends that neither his
conviction under 18 U.S.C. § 922(g)(3)
nor his convictions under 18 U.S.C. §
2119 are supported by sufficient
evidence. We will discuss these
contentions in order, recognizing that, in
reviewing the sufficiency of the
evidence, “we review the evidence in the
light most favorable to the government as
verdict winner.” United States v.
Applewhaite, 195 F.3d 679, 684 (3d Cir.
1999) (citing United States v. Stansfield,
101 F.3d 909, 911 (3d Cir. 1996)). In
other words, “[o]ur review of the
sufficiency of the evidence after a guilty
verdict is ‘highly deferential.’” United
States v. Hodge, 321 F.3d 429, 439 (3d
Cir. 2003) (quoting United States v.
Hart, 273 F.3d 363, 371 (3d Cir. 2001)).
“We must affirm the convictions if a
rational trier of fact could have found
defendant guilty beyond a reasonable
doubt, and the verdict is supported by
substantial evidence.” United States v.
Coyle, 63 F.3d 1239, 1243 (3d Cir.
1995).
3On Augustin’s motion, the District
Court vacated the § 922(g)(3) conviction
that related to the first carjacking
because Robles, not Augustin, possessed
the firearm. The government does not
appeal this ruling.

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4
A. Possession of a Firearm by an
Unlawful Drug User
By its terms, 18 U.S.C. §
922(g)(3) prohibits the possession of a
firearm by anyone who “is an unlawful
user of or addicted to any controlled
substance[.]” 18 U.S.C. § 922(g)(3).4
“The term ‘unlawful user’ is not
otherwise defined in the statute, but
courts generally agree the law runs the
risk of being unconstitutionally vague
without a judicially-created temporal
nexus between the gun possession and
regular drug use.” United States v.
Turnbull, 349 F.3d 558, 561 (8th Cir.
2003).
Augustin does not dispute that it
was he who carried the gun during the
second carjacking, and it is that
possession which underlies the sole §
922(g)(3) count before us, Count 7.
Neither does he dispute that he smoked
marijuana on the evening of June 28 or
that marijuana is a controlled substance.
See 21 U.S.C. § 812 (listing
tetrahydrocannabinols as a controlled
substance in Schedule I(c)(17)). He
argues, however, that the evidence of his
single use of marijuana – and the
government agrees that that is all that the
evidence disclosed – was insufficient to
prove that he was “an unlawful user of or
addicted to any controlled substance[.]”
18 U.S.C. § 922(g)(3). We agree.
Congress chose to criminalize
firearm possession by any person “who is
an unlawful user[.]” Id. (emphasis
added). The use of the present tense was
not idle. Quite simply, Congress
intended the statute to cover unlawful
drug use at or about the time of the
possession of the firearm, with that drug
use not remote in time or an isolated
occurrence.5
418 U.S.C. § 922(g)(3) provides in
relevant part:
It shall be unlawful for any
person . . . who is an
unlawful user of or
addicted to any controlled
substance (as defined in
section 102 of the
Controlled Substances Act
(21 U.S.C. 802)) . . . to
ship or transport in
interstate or foreign
commerce, or possess in or
affecting commerce, any
firearm or ammunition; or
to receive any firearm or
ammunition which has
been shipped or transported
in interstate or foreign
commerce.
5It was not necessary for the
government to prove that Augustin was
smoking marijuana at the very same time
that he possessed the firearm. See, e.g.,
United States v. Mack, 343 F.3d 929, 935
(8th Cir. 2003) (“there is no strict
temporal element within Section
922(g)(3) that would require the
(continued...)

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5
Those of our sister courts of
appeals that have considered 18 U.S.C. §
922(g)(3) have concluded, as do we, that
one must be an unlawful user at or about
the time he or she possessed the firearm
and that to be an unlawful user, one
needed to have engaged in regular use
over a period of time proximate to or
contemporaneous with the possession of
the firearm. See Turnbull, 349 F.3d at
562 (recognizing the need for a
“temporal nexus between regular drug
use and . . . possession of firearms” to
support a conviction under § 922(g)(3));
United States v. Jackson, 280 F.3d 403,
406 (4th Cir. 2002) (the district court did
not err in finding that to support a
conviction under § 922(g)(3), the
government must establish “a pattern of
use and recency of use”). See also
United States v. Purdy, 264 F.3d 809,
812-13 (9th Cir. 2001) (rejecting a void-
for-vagueness challenge and stating that
“to sustain a conviction under §
922(g)(3), the government must prove . .
. that the defendant took drugs with
regularity, over an extended period of
time, and contemporaneously with his
purchase or possession of a firearm”);
United States v. Edwards, 182 F.3d 333,
336 (5th Cir. 1999) (rejecting a void-for-
vagueness challenge and affirming
conviction where defendant admitted to
using “marijuana on a daily basis . . . for
the past two to three years”).
There was no evidence that
Augustin had ever used drugs prior to the
single use on June 28, or that he ever
used drugs again. All the evidence
disclosed was that Augustin used drugs
on June 28 and possessed a firearm on
June 29, roughly six hours later.6 That
evidence was insufficient to support his
conviction under 18 U.S.C. § 922(g)(3).7
B. Carjacking
Augustin also asserts that the
5(...continued)
government to prove that a specific
instance of drug use occurred
simultaneously with a defendant’s
firearm possession”); United States v.
Jackson, 280 F.3d 403, 406 (4th Cir.
2002).
6Even assuming that the government
established that Augustin’s gun
possession and his isolated use of
marijuana were sufficiently close in time,
use of drugs with some regularity is
required to support a conviction under 18
U.S.C. § 922(g)(3). See Jackson, 280
F.3d at 406 (“Section 922(g)(3) does not
forbid possession of a firearm while
unlawfully using a controlled substance.
Rather, the statute prohibits unlawful
users of controlled substances (and those
addicted to such substances) from
possessing firearms.”) (emphasis in
original).
7We cannot help but note the pyrrhic
nature of this victory. Given the fact that
we will otherwise affirm the judgment
and sentence, it appears that Augustin’s
sentence will remain unchanged.

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6
government failed to present evidence
sufficient to support a guilty verdict as to
either of his carjacking convictions. As
to the second carjacking, however, he
has, with good reason, utterly failed to do
more than assert that that is so.
We begin by identifying the
elements of the federal carjacking
statute, 18 U.S.C. § 2119:8
In order to be convicted of
carjacking under 18 U.S.C.
§ 2119, the government
must prove that the
defendant (1) with intent to
cause death or serious
bodily harm (2) took a
motor vehicle (3) that had
been transported, shipped
or received in interstate or
foreign commerce (4) from
the person or presence of
another (5) by force and
violence or intimidation.
Applewhaite, 195 F.3d at 684-85
(citation and quotations omitted).
Augustin would be hard pressed to
challenge his conviction as to either
carjacking on the second through the
fifth elements, and he does not attempt to
do so. Rather, he directs his efforts only
to the first element, that of intent to cause
death or serious bodily harm, and why, in
his view, the evidence did not support an
intent to cause death or serious bodily
harm to the victim of the first carjacking,
wholly ignoring the victim of the second
carjacking. Given the ringing evidence
of his brutalization of the second victim,
we conclude that no further discussion of
that carjacking is warranted. We turn,
then, to the first carjacking and whether
the intent element was satisfied.
“The intent requirement of § 2119
818 U.S.C. § 2119 provides:
Whoever, with the intent to
cause death or serious
bodily harm takes a motor
vehicle that has been
transported, shipped, or
received in interstate or
foreign commerce from the
person or presence of
another by force and
violence or by intimidation,
or attempts to do so, shall –
(1) be fined under this title
or imprisoned not more
than 15 years, or both,
(2) if serious bodily injury .
. . results, be fined under
this title or imprisoned not
more than 25 years, or
both, and
(3) if death results, be fined
under this title or
imprisoned for any number
of years up to life, or both,
(continued...)
8(...continued)
or sentenced to death.

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7
is satisfied when the Government proves
that at the moment the defendant
demanded or took control over the
driver’s automobile the defendant
possessed the intent to seriously harm or
kill the driver if necessary to steal the car
(or, alternatively, if unnecessary to steal
the car).” Holloway v. United States, 526
U.S. 1, 12 (1999). See also Applewhaite,
195 F.3d at 685 (discussing Holloway).
Accordingly, we must determine
whether, at the precise moment Augustin
“demanded or took control” of the first
victim’s car “by force and violence or
intimidation,” he had the proscribed state
of mind.
Augustin, relying on DeJesus’s
testimony, asserts that neither he nor
DeJesus knew in advance that Robles
intended to commit a carjacking or that
Robles had a gun. Therefore, he
contends, given this paucity of
knowledge, he could not have had the
intent “to seriously harm or kill.”
Holloway, 526 U.S. at 12. We reject this
contention.
To be sure, it was Robles who
initiated the first carjacking and it was
Robles who carried the gun, with
Augustin and DeJesus, although hiding
and disguised in camouflage clothing and
masks, purportedly ignorant of what was
to ensue. But as the Supreme Court
emphasized in Holloway, and as we
recognized in Applewhaite, a carjacker’s
intent is assessed “at the moment [he]
demanded or took control over the
driver’s automobile[.]” Holloway, 526
U.S. at 12 (emphasis added);
Applewhaite, 195 F.3d at 685 (quoting
Holloway). Thus, it does not matter
whether Augustin, when he and Robles
and DeJesus were crouched in the
bushes, planned in his own mind or
agreed with the others to commit a
carjacking. Augustin leapt over the
bushes as soon as he saw Robles, with
gun drawn, manhandle the driver of a
passing car. Augustin, at that moment,
ratified all that Robles was doing,
leaving no doubt that, as the Court put it
in Holloway, he “would have at least
attempted to seriously harm or kill the
driver if that action had been necessary
to complete the taking of the car.”
Holloway, 526 U.S. at 12. He could have
fled. He could have attempted to stop
Robles. What he chose to do, however,
was follow on Robles’s heels and then
drive away in the victim’s car with
Robles and DeJesus.
The evidence was sufficient to
support Augustin’s convictions on both
counts of carjacking.
III. CONCLUSION
We will vacate Augustin’s
conviction under 18 U.S.C. § 922(g)(3)
(Count 7) and will otherwise affirm the
judgment and sentence.

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