United States v. Marco Laboy-Torres

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

1-29-2009

USA v. Marco Laboy-Torres

Precedential or Non-Precedential: Precedential

Docket No. 08-1220

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-1220

UNITED STATES OF AMERICA

v.

MARCO LABOY-TORRES,

Appellant

On Appeal from the United States District Court

for the Middle District of Pennsylvania

D.C. Criminal No. 06-cr-0351-1

(Honorable Christopher C. Conner)

Argued November 20, 2008

Before: SCIRICA, Chief Judge, RENDELL, Circuit Judge,

and O’C ONNOR,* Associate Justice (Ret.).

*

Hon. Sandra Day O’Connor, Associate Justice (Ret.) of the

Supreme Court of the United States, sitting by designation.

(Filed: January 29, 2009)

FREDERICK W. ULRICH, ESQUIRE (ARGUED)

Office of Federal Public Defender

100 Chestnut Street , Suite 306

Harrisburg, Pennsylvania 17101

Attorney for Appellant

THEODORE B. SMITH III, ESQUIRE (ARGUED)

Office of United States Attorney

220 Federal Building and Courthouse

228 Walnut Street, P.O. Box 11754

Harrisburg, Pennsylvania 17108

Attorney for Appellee

OPINION OF THE COURT

O’C ONNOR, Associate Justice (Retired).

Under federal law, it is a crime for any person “who has

been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year” to ship, transport,

receive or possess a firearm or ammunition. 18 U. S. C.

§922(g)(1). In Small v. United States, 544 U.S. 385 (2005), the

Supreme Court construed the phrase “convict[ions] in any court”

in that statute to “encompas[s] only domestic, not foreign,

2

convictions.” Id. at 387. The question presented is whether

appellant’s conviction in a Puerto Rican court for the possession

of marijuana is a “foreign” or “domestic” conviction under

§922(g)(1), a question of first impression in the Courts of

Appeals. The District Court concluded that it was a domestic

conviction within the ambit of the statute’s prohibition. We

agree, and accordingly affirm the court’s denial of appellant’s

motion to dismiss his indictment.

I.

The material facts are not in dispute. In July 1999,

appellant Marco Laboy-Torres was convicted in the Superior

Court of Mayaguez, Puerto Rico, for possessing marijuana, and

was sentenced to 36 months’ probation. Two years later, he

moved to the United States in violation of the terms of his

sentence. When he returned to Puerto Rico in 2005, he was re-

arrested, his probation was revoked, and he was sentenced to

serve a three year term of incarceration, with two years’ credit

for the probation he had previously served. He ultimately served

seven months’ imprisonment. After he was released, he

returned to the United States.

In June 2006, appellant attempted to purchase from a

licensed firearms dealer in York, Pennsylvania, two semi-

automatic pistols and one standard pistol. On the form required

by the Bureau of Alcohol, Tobacco, Firearms and Explosives

(ATF) to complete a firearms purchase, appellant certified that

he had never been convicted in any court of a crime punishable

3

by imprisonment for a term exceeding one year. Supplemental

Appendix for Appellee 1.1 When the dealer performed an

instant criminal background check, appellant’s Puerto Rican

conviction turned up, and the dealer consequently refused to sell

appellant the three handguns. Six days later, appellant

endeavored to purchase two handguns from a different dealer,

with the same result. Again he certified that he had no

disqualifying convictions, Supplemental Appendix for Appellee

5, again a criminal background check uncovered his Puerto

Rican conviction, and again the transaction was refused.

Three months later, agents of the ATF interviewed

appellant, and he confirmed that he had been convicted for

possession of marijuana in Puerto Rico and admitted his two

subsequent attempts to purchase firearms in Pennsylvania. He

was later indicted by a grand jury for two counts of making false

or fictitious statements to deceive a licensed firearms dealer in

the sale or acquisition of a firearm, in violation of 18 U. S. C.

§922(a)(6). In relevant part, that statute makes it unlawful

“knowingly to make any false or fictitious oral or written

statement . . . with respect to any fact material to the lawfulness

1

ATF Form 4473 includes the question: “Have you ever been

convicted in any court of a felony, or any other crime, for which

the judge could have imprisoned you for more than one year,

even if you received a shorter sentence including probation?”

Supplemental Appendix for Appellee 1 (emphasis omitted).

Appellant answered “[n]o.” Ibid.

4

of [a] sale [of firearms].” Ibid. The Government asserted that

appellant knew that each of his denials of disqualifying

convictions was false. It further asserted that each was material

because his Puerto Rican conviction made it unlawful for him to

purchase firearms under §922(g)(1), which provides that it is

“unlawful for any person . . . who has been convicted in any

court of, a crime punishable by imprisonment for a term

exceeding one year . . . to receive any firearm or ammunition.”

Appellant pleaded not guilty and moved to dismiss his

indictment on the ground that the Government failed adequately

to allege the materiality element of the charged offense. United

States v. Laboy-Torres, 2007 WL 2155550, *1 (MD Pa. 2007).

He asserted that pursuant to the reasoning of Small v. United

States, 544 U.S. 385, the firearms purchases he attempted would

have been lawful under §922(g)(1) because his Puerto Rican

conviction was entered by a “foreign” court excluded from the

statute’s reference to “any court.” Id. at *2; see Small, 544 U.S.

at 387 (construing §922(g)(1) to “encompas[s] only domestic,

not foreign, convictions”). As his attempted purchases would

have been lawful notwithstanding his Puerto Rican conviction,

he argued that conviction was not a fact material to the

lawfulness of each attempted purchase. 2007 WL 2155550, at

*2. In the absence of materiality—an element necessary for

conviction under §922(a)(6)—appellant contended that his

indictment was legally deficient and had to be dismissed. Ibid.

The District Court denied his motion, rejecting the

premise upon which it was based. The court concluded that

5

appellant’s Puerto Rican conviction was a “domestic”

conviction under Small, and that appellant’s attempted

purchases thus were prohibited by §922(g)(1). Id. at *2–*3. In

light of this conclusion, appellant’s contention that his omissions

were immaterial—and that his indictment under §922(a)(6) thus

was legally insufficient—could not succeed.

Appellant then pleaded guilty to one count of the

indictment, on the condition that he could appeal the District

Court’s denial of his dismissal motion. After sentencing,2 he

filed the instant appeal, which presents a single issue.

Specifically, appellant challenges only the District Court’s

conclusion that his Puerto Rican conviction was a “domestic”

conviction under §922(g)(1) and Small. We have jurisdiction to

consider his timely appeal under 28 U. S. C. §1291, and we

review the District Court’s legal conclusion de novo. United

States v. Myers, 308 F. 3d 251, 255 (3d Cir. 2002).

II.

A review of the principles that animated the Supreme

Court’s decision in Small demonstrates that decision’s

inapplicability to Puerto Rican convictions. Put simply, Puerto

Rican convictions lack the characteristics central to the Court’s

2

Appellant was sentenced to imprisonment for 12 months

plus one day and two years’ supervised release. He was also

ordered to pay a $500 fine and a $100 special assessment. App.

to Brief for Appellant 3–9.

6

treatment of foreign convictions. In the absence of these

characteristics, there is no basis to extend the reasoning of Small

to the courts of Puerto Rico. Moreover, precedent and principle

counsel in favor of treating Puerto Rican courts as “domestic”

courts for purposes of §922(g)(1). We thus conclude that the

District Court properly included Puerto Rican convictions

among the predicates that trigger §922(g)(1)’s prohibitions.

A.

In Small, the Supreme Court considered whether a

Japanese conviction qualified as a predicate conviction under

§922(g)(1). The Court began its analysis with “the legal

presumption that Congress ordinarily intends its statutes to have

domestic, not extraterritorial, application.” Id. at 388–389.

“[A]lthough the presumption against extraterritorial application

d[id] not apply directly” because Small did not concern the

applicability of a United States law to foreign conduct, the Court

nonetheless reasoned that “a similar assumption [was]

appropriate,” id. at 389, when construing the statute’s use of the

phrase “any court.” The fact that the statute would be presumed

not to prohibit conduct that occurs in Japan predisposed the

Court similarly to presume that Congress did not intend

Japanese convictions to serve as predicates for the

criminalization of conduct that occurs in the United States. Ibid.

The Court found the propriety of this presumption

reinforced by three “important ways” in which “foreign

convictions differ from domestic convictions.” Ibid. First,

7

foreign laws may prohibit “conduct that domestic laws would

permit, for example, . . . engaging in economic conduct that our

society might encourage.” Ibid. (citing Russian laws

criminalizing “Private Entrepreneurial Activity” and

“Speculation,” and Cuban laws forbidding propaganda that

incites against the social order, international solidarity, or the

communist state). Second, a foreign legal system may lack the

safeguards necessary to ensure that the convictions it produces

are consistent with American notions of fairness, most notably,

the guarantee of due process. Id. at 389–90 (citing a legal

regime that additionally fails to guarantee equal protection under

the law by providing that “the testimony of one man equals that

of two women”). Third, foreign convictions may criminalize

“conduct that domestic law punishes far less severely.” Id. at

390 (citing a provision of Singapore’s law that authorizes

imprisonment for up to three years for an act of vandalism). In

light of these differences, the Court concluded that convictions

in foreign courts of crimes punishable by imprisonment for a

year or more “less reliably identif[y] dangerous individuals for

the purposes of U. S. law.” Ibid.

The Court “consequently assume[d] a congressional

intent that the phrase ‘convicted in any court’ applie[d]

domestically, not extraterritorially.” Id. at 390–91. It found no

reason in the statutory language, context, history, or purpose of

§922(g)(1) to depart from this assumption. Id. at 391–94.

Appellant’s attempt to extend the reasoning of Small to

Puerto Rican convictions fails where it must begin. As

8

explained, the Small Court’s analysis firmly was rooted in the

presumption against the extraterritorial application of federal

laws. However, the opposite presumption applies to Puerto

Rico; federal laws are presumed to apply to Puerto Rican

conduct. 48 U. S. C. §734 (“The statutory laws of the United

States not locally inapplicable . . . shall have the same force and

effect in Puerto Rico as in the United States[.]”); see also, e.g.,

United States v. Acosta-Martinez, 252 F. 3d 13, 18 (1st Cir.

2001) (explaining that “the default rule . . . is that, as a general

matter, a federal statute does apply to Puerto Rico pursuant to 48

U. S. C. §734”); Trailer Marine Transport Corp. v. Rivera

Vazquez, 977 F. 2d 1, 18 (1st Cir. 1992) (“[F]ederal statutes

apply in Puerto Rico, as they do in any state, unless otherwise

provided.”).3

This fundamental difference is illustrated in Small itself.

In its discussion of the presumption against extraterritorial

application, the Small Court cited four cases, in each of which

the presumption was applied to limit the scope of a federal

statute. Small, 544 U.S. at 388–89. Yet each of those statutes

could be applied to Puerto Rican conduct. For example, the

Court cited Smith v. United States, 507 U.S. 197, 203–204

3

Of course, we are not bound by the decisions of the First

Circuit. However, in light of that court’s appellate jurisdiction

over cases from the District of Puerto Rico, and its resultant

expertise with Puerto Rican law, we accord its decisions on that

subject great weight.

9

(1993), which applied the presumption against extraterritorial

application to limit the scope of the Federal Tort Claims Act.

That statute has since been applied to conduct that occurred in

Puerto Rico. E.g., Torres-Lazarini v. United States, 523 F. 3d

69 (1st Cir. 2008). Similarly, Title VII of the Civil Rights Act of

1964 has been held inapplicable to extraterritorial conduct,

EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991),

but applicable to Puerto Rican conduct, id. at 267 n.3. The

scope of the Federal Eight Hour Law, 40 U. S. C. §§321–26,

was also limited in this manner, Foley Bros., Inc. v. Filardo, 336

U.S. 281, 285–86 (1949), but the Fair Labor Standards Act has

since been applied to employer conduct in Puerto Rico, Mitchell

v. Nolla, Galib & Compania, 176 F. Supp. 883, 887–88 (D.P.R.

1959). Lastly, applying the presumption against extraterritorial

scope, the Supreme Court has held that an anti-piracy statute

applied only to United States citizens aboard ships belonging

exclusively to subjects of a foreign state. United States v.

Palmer, 3 Wheat. 610, 630–634 (1818). Because Puerto Ricans

are United States citizens, infra, at 14, today the statute would

govern their conduct.

Section 922(g) similarly is applied to Puerto Rican

conduct. In the five year period ending September 2008 there

were more than 175 prosecutions under that section in the

United States District Court for the District of Puerto Rico.

Unpublished Data, Criminal Production D atabase,

Administrative Office of the U.S. Courts, Washington, DC.

(generated December 2, 2008, available in Clerk of Court’s file).

10

Presumably, most (if not all) of those prosecutions stemmed

from conduct that occurred in Puerto Rico. Certainly, some of

them did. E.g., U. S. v. Andujar-Ortiz, 575 F. Supp. 2d 373

(D.P.R. 2008) (concerning prosecution for violation of

§922(g)(1) stemming from conduct occurring in Puerto Rico);

U. S. v. Torres-Gonzalez, 526 F. Supp. 2d 210 (D.P.R. 2007)

(same). It would turn Small on its head to conclude that Puerto

Rican convictions cannot serve as predicate convictions under

§922(g)(1) notwithstanding the fact that that section’s

prohibitions govern Puerto Rican conduct.

Similarly inapposite are the important differences

between U. S. and foreign law described by the Court in Small.

Puerto Rican convictions are consistent with the “American

understanding of fairness,” Small, 544 U.S. at 389, because the

fundamental provisions of the U. S. Constitution that guarantee

fairness apply with equal force in Puerto Rico. E.g., Posadas de

Puerto Rico Associates v. Tourism Co. of P. R., 478 U.S. 328,

331 n.1 (1986) (citing Balzac v. Porto Rico, 258 U.S. 298, 314

(1922) (First Amendment Free Speech Clause); Calero-Toledo

v. Pearson Yacht Leasing Co., 416 U.S. 663, 668–69, and n.5

(1974) (Due Process Clause of the Fifth or Fourteenth

Amendment); Examining Bd. of Engineers, Architects and

Surveyors v. Flores de Otero, 426 U.S. 572, 599–601 (1976)

(equal protection guarantee of the Fifth or Fourteenth

Amendment); Torres v. Puerto Rico, 442 U.S. 465, 471 (1979)

(Fourth Amendment)). We are mindful that not every

constitutional right has been extended to Puerto Ricans. E.g.,

11

Examining Board, 426 U.S. at 600 n.30 (describing the Insular

Cases and explaining that “only ‘fundamental’ constitutional

rights were guaranteed to the inhabitants” of Puerto Rico). It is

the fundamental constitutional rights that were accorded Puerto

Ricans, however, that guarantee them the “American

understanding of fairness,” Small, 544 U.S. at 389.

These protections not only guarantee American fairness

in Puerto Rican courts, but also impose limitations upon the

types of conduct that can be criminalized and the extent of

punishment that can be imposed for those crimes. At oral

argument, appellant’s counsel suggested that Puerto Rico’s

authorization of a three year term of incarceration for the crime

of possessing a small amount of marijuana demonstrates that

Puerto Rico punishes certain crimes far more severely than do

the States. See Transcript of Oral Argument at 12. We disagree.

There is a wide disparity in the punishment authorized in

different States for the crime of possessing a small amount of

marijuana. Compare, e.g., N. M. Stat. Ann. §30–31–23(b)(1)

(2005) (possession of one ounce or less of marijuana is, for the

first offense, punishable by a fine of 50 to 100 dollars and

imprisonment for up to 15 days) with Fla. Stat. §§893.13(6)(b),

775.082(4)(a), 775.083(1)(d) (2005) (possession of not more

than 20 grams of cannabis (which is less than one ounce) is, for

the first offense, punishable by a fine of up to 1,000 dollars and

imprisonment for up to one year). While admittedly stringent,

Puerto Rico’s choice of the maximum punishment for the

offense is not qualitatively different from that of the States.

12

Moreover, we note that appellant was initially sentenced only to

probation. He was incarcerated not because he possessed

marijuana, but because he violated the terms of that probation.

Appellant offers no other evidence of the purported severity of

Puerto Rican punishment.

Lastly, unlike a foreign defendant, a Puerto Rican

defendant may collaterally challenge the fairness of her

conviction by petitioning the Federal District Court for the

District of Puerto Rico for a federal writ of habeas corpus.

Cruz-Sanchez v. Rivera-Cordero, 835 F. 2d 947, 948 (1st Cir.

1987). In some cases, direct review is also available in the U. S.

Supreme Court through a petition for a writ of certiorari. 28

U. S. C. §1258; 48 U. S. C. §864. In short, the constitutional

and statutory protections accorded Puerto Ricans would

foreclose the enforcement in Puerto Rico of statutes like the

foreign laws the Small Court found troubling.

Against this backdrop, it simply cannot be said that

Puerto Rican crimes punishable by imprisonment for a year or

more “less reliably identif[y] dangerous individuals” than do the

crimes codified by the States. Small, 544 U.S. at 390. We thus

find no basis for extending Small to convictions entered by

Puerto Rican courts.

B.

To the contrary, we conclude that Congress intended to

include Puerto Rican convictions as predicates for purposes of

13

§922(g)(1). This conclusion is consistent with Congress’ and

courts’ treatment of Puerto Rico in other contexts.

Puerto Rico possesses “a measure of autonomy

comparable to that possessed by the States.” Examining Board,

426 U.S. at 597; see also United States v. Acosta-Martinez, 252

F. 3d 13, 18 (1st Cir. 2001) (“Congress maintains similar powers

over Puerto Rico as it possesses over the federal states.”). Like

the States, it has a republican form of government, organized

pursuant to a constitution adopted by its people, and a bill of

rights. E.g., 48 U. S. C. §§731b–731e. This government enjoys

the same immunity from suit possessed by the States, Ramirez

v. Puerto Rico Fire Service, 715 F. 2d 694, 697 (1st Cir. 1983).

Like the States, Puerto Rico lacks “the full sovereignty of an

independent nation,” for example, the power to manage its

“external relations with other nations,” which was retained by

the Federal Government. Americana of Puerto Rico, Inc. v.

Kaplus, 368 F. 2d 431, 435 (3d Cir. 1966). As with citizens of

the States, Puerto Rican citizens are accorded United States

citizenship, id., at 434, and the fundamental protections of the

United States Constitution, supra, at 11. The rights, privileges,

and immunities attendant to United States citizenship are

“respected in Puerto Rico to the same extent as though Puerto

Rico were a State of the Union.” 48 U. S. C. §737. Finally,

Puerto Rican judgments are guaranteed the same full faith and

credit as are those of the States. 28 U. S. C. §1738; Americana

of Puerto Rico, Inc., 368 F.2d at 437.

14

It is thus not surprising that “although Puerto Rico is not

a state in the federal Union, ‘it . . . seem[s] to have become a

State within a common and accepted meaning of the word.’ ”

United States v. Steele, 685 F. 2d 793, 805 n.7 (3d Cir. 1982)

(quoting Mora v. Mejias, 206 F. 2d 377, 387 (1st Cir. 1953));

see also Calero-Toledo, 416 U.S. at 672 (quoting the same

passage with approval). Consistent with this common and

accepted understanding, Congress frequently uses the term

“State” to refer also to Puerto Rico. Indeed, it did so in the

section at issue here, §922(a)(2)(c). See also, e.g., 15 U. S. C.

§1171(b) (transportation of gambling devices); 16 U. S. C.

§3371(h) (transportation of illegally taken wildlife); 18 U. S. C.

§891(8) (extortionate credit transactions); 18 U. S. C.

§1953(d)(1) (interstate transportation of w agering

paraphernalia); 18 U. S. C. §1955(b)(3) (illegal gambling); 18

U. S. C. §1961(2) (racketeering influenced and corrupt

organizations); 28 U. S. C. §1332(d) (defining “state” for

purposes of diversity jurisdiction). More significantly, when

Congress fails explicitly to refer to Puerto Rico, courts must

nonetheless inquire whether it intended to do so. E.g., Puerto

Rico v. Shell Co. (P. R.), Ltd., 302 U.S. 253 (1937) (determining

a statute’s applicability to Puerto Rico is a question of

congressional intent); Acosta-Martinez, 252 F. 3d at 11 (“When

determining the applicability of a federal statute to Puerto Rico,

courts must construe the language . . . to effectuate the intent of

the lawmakers.” (internal quotation marks omitted)).

Conducting this inquiry, courts routinely conclude that Congress

intended to include Puerto Rico even when a statute is silent on

15

that front. E.g., Examining Board, 426 U.S. at 597 (defining

“State” to include Puerto Rico for purposes of 42 U. S. C. §1983

and 28 U. S. C. §1343(3)); Americana of Puerto Rico, Inc., 368

F. 2d, at 437 (federal statute that referred to the proceedings of

any “State, Territory, or Possession,” applied to Puerto Rico

even though Puerto Rico was not a State, Territory, or

Possession); U.S.I. Properties Corp. v. M.D. Constr. Co., 230

F. 3d 489, 499–500 (1st Cir. 2000) (defining “State” to include

Puerto Rico for purposes of diversity jurisdiction under 28

U. S. C. §1332); Cordova & Simonpietri Insurance Agency Inc.

v. Chase Manhattan Bank N. A., 649 F. 2d 36, 38 (1st Cir. 1981)

(treating Puerto Rico as a “State” under the Sherman Antitrust

Act).

Of particular relevance here, courts—including this

one—have included Puerto Rican convictions when construing

statutory references to predicate “State” offenses. For example,

in United States v. Steele, 685 F. 2d 793, 805 (3d Cir. 1982), this

Court construed the definition of predicate offenses under the

Travel Act, 18 U. S. C. §1952. As relevant, that statute

criminalized the use of facilities of interstate commerce in

furtherance of “bribery . . . in violation of the laws of the State

in which committed.” §1952. Like appellant here, the Steele

defendants moved to dismiss their indictments on the theory that

a Puerto Rican crime could not serve as a predicate for

conviction under the federal statute. Id. at 804. Specifically,

they argued that the provision’s reference to “the laws of the

State in which [the bribery was] committed” could not be

16

understood to encompass Puerto Rican antibribery laws because

Puerto Rico is not a “State.” Ibid. Reviewing the purpose and

history of the legislation, we had “no difficulty rejecting [that]

argument.” Id. at 804–805. In short, we found “no reason to

hold that Congress . . . chose the word ‘State’ to deny Puerto

Rican law enforcement the assistance extended to other

localities within Congress’ power to protect.” Id. at 805.

At least two Courts of Appeals reached the same

conclusion when construing the definition of predicate offenses

under the Federal Sentencing Guidelines’ “career offender”

provision, U. S. S. G. §4B1.1. That section provides for a

heightened sentence if the defendant has “at least two prior

felony convictions of either a crime of violence or a controlled

substance offense.” Ibid. Predicate offenses are defined in

pertinent part as “offense[s] under federal or state law.”

§§4B1.2(a), (b). The First and Ninth Circuits both have

considered and rejected the argument that Puerto Rico

convictions fall outside this provision because they are not

“offense[s] under federal or state law.” E.g., United States v.

Torres-Rosa, 209 F. 3d 4, 8 (1st Cir. 2000); United States v.

Cirino, 419 F. 3d 1001, 1005 (9th Cir. 2005) (per curiam).

They explained that that argument “ ‘completely ignores the

body of case law recognizing that Congress has accorded the

Commonwealth of Puerto Rico ‘the degree of autonomy and

independence normally associated with States of the Union.’ ”

Cirino, 419 F.3d at 1003–1004 (quoting Torres-Rosa, 209 F. 3d

at 8 (quotation marks and emphasis omitted)). In light of that

17

case law, these courts required the respective appellants to

“sho[w] that the Sentencing Commission meant to exclude

felony convictions in Puerto Rico Commonwealth Courts,” and

concluded that they had failed to do so. Id. at 1004.

The reasoning of these precedents would almost certainly

dictate the conclusion that a reference to a “State court” in

§922(g)(1) would have encompassed Puerto Rico. However, we

need not reach that hurdle. We face a statute with broader

language, making it even easier to conclude that Congress

intended to include Puerto Rican convictions. The statute refers

not to “State” convictions, but to convictions in “any court.”

§922(g)(1). And the Supreme Court did not construe the statute

to apply only to “State” courts, but to include all “domestic”

courts. Small, 544 U. S. at 387. In this context, it is difficult to

imagine a “ ‘showin[g]’ that [Congress] meant to exclude felony

convictions in Puerto Rico Commonwealth Courts.” Cirino,

419 F. 3d, at 1004. Certainly, appellant has failed to make such

a showing here.

His effort to do so is largely ill conceived. Appellant

principally stresses that Puerto Rico has its own autonomous

government, constituted and bound by a written constitution,

and with three branches mirroring those of our national

government. Brief for Appellant 14. Appellant’s great reliance

upon this point is perplexing, as the same can be said of every

State in the Union (with variations in the structures of those

governments). E.g., Trailer Marine Transport Corp. v. Rivera

Vazquez, 977 F. 2d 1, 17 (1st Cir. 1992) (“[T]he government of

18

the Commonwealth of Puerto Rico in many respects resembles

that of a state.”). Appellant similarly emphasizes the fact that

Puerto Rico has been held “a separate sovereign for purposes of

the Double Jeopardy [and Commerce] Clause[s],” Brief for

Appellant 14, a fact also true of the States. E.g., Heath v.

Alabama, 474 U.S. 82, 89 (1985) (For purposes of the Double

Jeopardy Clause, “the States are separate sovereigns with

respect to the Federal Government because each State’s power

to prosecute is derived from its own ‘inherent sovereignty,’ not

from the Federal Government” (citation omitted)); Trailer

Marine Transport Corp., 977 F. 2d at 19 (“Puerto Rico is

subject to the constraints of the dormant Commerce Clause

doctrine in the same fashion as the states.” (emphasis added)).

These arguments demonstrate only that Puerto Rican

sovereignty is of an extent and character similar to that of the

States. They thus undermine appellant’s position.

Appellant stands on somewhat firmer ground when he

invokes a federal taxation provision that distinguishes Puerto

Rico and the States. Brief for Appellant 15. He cites Riccio v.

United States, 1971 WL 442 (D. P. R. 1971), which concerned

the application of 26 U. S. C. §2014. That statute provides

credits against federal estate taxation for certain taxes “paid to

any foreign country.” §2014(a). “[F]or purposes of the credits

authorized,” the statute provides that “each possession of the

United States shall be deemed to be a foreign country.”

§2014(g). As did the District Court in Riccio, we reject the idea

“that this provision of law deals in some way with the status of

19

the Commonwealth of Puerto Rico.” Riccio, 1971 WL 442 at *1

n.3. “Possession” and “foreign country” are “totally inconsistent

terms,” and we can conclude only that Congress, “as a matter of

convenience and simplicity, . . . designate[d] [these

fundamentally] different entities by the same term.” Ibid. In

other taxation provisions, Congress has drawn very different

lines, even singling out Puerto Rico for treatment distinct from

that accorded other “possessions.” E.g., Polychrome Intern.

Corp. v. Krigger, 5 F. 3d 1522, 1526 n.5 (3d Cir. 1993) (“Every

U. S. possession . . . is eligible [for the establishment of foreign

sales corporation status] except Puerto Rico.” (citing Internal

Revenue Code §927(d)(5)). Taken as a whole, federal taxation

provisions support only the established propositions, described

supra, that Congress need not treat Puerto Rico as a State in

every context, and that Congress sometimes explicitly elects not

to do so.

Appellant next argues that the frequently-invoked rule of

lenity demands a construction of the statute in his favor. He is

mistaken. The rule of lenity “comes into operation at the end of

the process of construing what Congress has expressed, and

applies only when, after consulting traditional canons of

statutory construction, we are left with an ambiguous statute.”

Burgess v. United States, 128 S. Ct. 1572, 1580 (2008) (internal

quotations omitted). For the reasons explained, Congress’

incorporation of Puerto Rican convictions in §922(g)(1) is

unambiguous. The rule of lenity thus finds no application to this

case.

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Lastly, appellant argues that “the existence of a Puerto

Rican National Olympic Committee distinct from [that of] the

United States” counsels against treating Puerto Rico as a

domestic entity. Brief for Appellant 15. Without diminishing

the pride Puerto Rico rightfully should enjoy in light of its place

in the pantheon of international sporting events, we reject as

meritless the proposition that classifications made in the context

of the organization of such events find application to the

construction of federal law.

III.

Puerto Rican convictions are not “foreign” convictions

for purposes of 18 U. S. C. §922(g)(1), as construed by the

Supreme Court in Small v. United States, 544 U.S. 385 (2005).

To the contrary, consistent with the treatment of Puerto Rico in

other contexts, its convictions are properly viewed as

“domestic” convictions that Congress intended to include among

the predicates that trigger §922(g)(1)’s prohibitions. The

District Court thus properly denied appellant’s motion to dismiss

his indictment.

AFFIRMED.

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