On Appeal from the District Court of the Virgin Islands (D.C. Criminal No. 02-cr-00033-2). District Judge: Hon. Raymond L. Finch, Chief Judge.
The opinion of the court was delivered by: Cowen, Circuit Judge
BEFORE: FISHER, COWEN and ROTH,*fn1 Circuit Judges
Fernando Batista De La Cruz challenges the district court's two-level upward adjustment of his sentence on the ground that he employed "special skills" in operating a fishing boat from Puerto Rico to St. Thomas, Virgin Islands to pick up and transport cocaine. We will reverse and remand for resentencing.
On November 18, 2001, Batista De La Cruz borrowed a twenty-foot powerboat from a friend to go from Puerto Rico to St. Thomas. He and passenger Bartolo Martes-Jimenez left Puerto Rico in the morning and used the boat to go fishing for lobster. After fishing, Batista De La Cruz piloted the boat to St. Thomas. While at St. Thomas, he picked up two fuel tanks which contained thirty-four kilograms of cocaine and stored them on the boat. He then piloted the boat approximately 1.5 miles south to an island off the coast of St. Thomas, Water Island.
Officer Montclair Guishard stopped the boat near Water Island for traveling at a high rate of speed with a fish trap dangerously bouncing on the bow of the boat. He then called for back-up officers to assist in questioning Batista De La Cruz and Martes-Jiminez in Spanish. The officers determined that both men did not have fishing licenses and two of the six lobsters caught were undersized. Both men were arrested and charged with possession of undersized lobsters and fishing without a license in violation of V.I. Code Ann., tit. 12, §§ 319, 312. Once the men were in custody, the officers took inventory of the vessel for safekeeping and accountability. While taking inventory, the officers discovered the cocaine hidden in the modified gas containers.
Batista De La Cruz was charged with one count of conspiracy to possess cocaine with the intent to distribute and one count of possession with intent to distribute in violation of 21 U.S.C. §§ 841, 846 and 18 U.S.C. § 2. He pled guilty to both counts. In the presentence report, the Probation Office recommended a two-level enhancement pursuant to United States Sentencing Guideline § 3B1.3 for use of a special skill in piloting the boat from Puerto Rico to St. Thomas. Batista De La Cruz objected to the enhancement. The government originally concurred with his position, stating that the enhancement did not apply because Batista De La Cruz did not have boat handling training or any vessel pilot license. The government ultimately changed its position and now asserts that the enhancement applies.
The report by the Probation Office recommending the two-level enhancement was based on an interview with Alvin Powell, Jr., an Environmental Enforcement Officer and a Certified Boating Safety Instructor. After seeing a picture of the boat used by Batista De La Cruz, Powell opined that a layperson in the community would not be able to pilot that type of boat without having special skills. A person piloting a similar boat would need to know how to ride the waves because of the freeboard (lowness) of the stern and port and starboard sides of the boat. Powell also noted that the vessel may have been partially submerged at the time of interception due to the weight of the two men, the 34.4 kilograms of cocaine, the ice cooler with its contents, the large fish trap, and the two fuel tanks. Powell noted that the waters are generally rough and there are shallow areas that must be avoided, such as sand banks and coral reefs.
The district court adopted the presentence report without any changes. The two-level enhancement raised the applicable offense level from 29, with a corresponding guideline sentencing range of 87 to 108 months, to 31, with a guideline sentencing range of 108 to 135 months. On December 14, 2005, the district court sentenced Batista De La Cruz to 108 months, with credit given for time served, and five years of supervised release.*fn2
The district court had jurisdiction pursuant to 18 U.S.C. § 3241. We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. This court reviews de novo a district court's legal interpretation of the Sentencing Guidelines. United States v. Urban, 140 F.3d 229, 234 (3d Cir. 1998). We review the district court's ...