Govt of VI v. Garcia, (3rd Cir. 2007)

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NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

NO. 06-4422

GOVERNMENT OF THE VIRGIN ISLANDS

v. JU L I O ORTIZ GARCIA

A p p e lla n t

On Appeal From the District Court of the

V irg in Islands, Division of St. Croix, Appellate Division

(D.C. Crim. Action No. 05-cr-00018)

H o n . Raymond L. Finch, Chief District Judge

H o n . Curtis V. Gomez, District Judge

R h ys S. Hodge, Territorial Judge

Submitted Pursuant to Third Circuit LAR 34.1(a)

M a y 8, 2007

B E F O R E : SLOVITER, STAPLETON and

V A N ANTWERPEN, Circuit Judges

(O p in io n Filed May 11, 2007)

OPINION OF THE COURT

S T A P L E T O N , Circuit Judge: I.

A p p e lla n t Julio Ortiz Garcia was convicted of attempted rape in the first degree (C o u n t 1), two counts of rape in the first degree (Counts 2 and 3), unlawful sexual c o n d u c t in the first degree (Count 4), kidnapping for rape (Count 5), and two counts of c h ild abuse (Counts 6 and 7). These convictions arose from a series of events on the s a m e day involving a 15- year-old female victim. Garcia also had a prior conviction for ra p e of a three-year-old victim. The Superior Court imposed a 25-year sentence on Count 1 , a 99-year sentence on Counts 2 and 3, a 25-year sentence on Count 4, a 99-year se n ten c e on Count 5, and a 20-year sentence on Counts 6 and 7. The sentences on Counts 1 through 4 are to run concurrently, as are the sentences on Counts 5 through 7. Garcia c a n thus be required to serve two consecutive sentences of 99 years each for rape in the f irs t degree and kidnapping with the intent to rape.

G a rc ia argues before us that the Appellate Division erred in affirming the Superior C o u rt's (1) denial of his motion to suppress the victim's out-of-court and in-court id e n tif ic a tio n s of him, and (2) rejection of his contentions that the sentences imposed v io la te d both the Eighth Amendment's prohibition against cruel and unusual punishment a n d the Fifth Amendment's protection against multiple punishments for the same offense.

In his informal pro se brief, Garcia also insists that there was insufficient evidence to s u p p o rt the rape convictions. We will affirm the judgment of the Appellate Division e ss e n tia lly for the reasons given in its thorough opinion.1 II.

A s the Appellate Division noted, while the "show up" of Garcia was "suggestive," it is not at all clear that it was "unnecessarily suggestive" as those terms are used in Neil v . Biggers, 409 U.S. 188 (1972). Courts have consistently acknowledged the necessity of u tiliz in g "show ups" under certain circumstances, despite their inherent suggestibility.

See Gov't of Virgin Islands v. Callwood, 440 F.2d 1206, 1209 (3d Cir. 1971). We agree w ith the Appellate Division, however, that one need not resolve that issue in order to s u s ta in the Superior Court's denial of Garcia's suppression motion. A pre-trial id e n tif ic a tio n is suppressible only if it is both produced through an unnecessarily s u g g e stiv e procedure and unreliable. See Biggers, 409 U.S. at 196-99.

T h e "show up" identification of Garcia bore many and strong indicia of reliability.

Garcia lived next door to the victim and she had seen him on numerous occasions. She h a d an ample opportunity to observe him during the perpetration of the crimes and p ro v id e d police with a detailed and accurate description of him and his clothing prior to th e "show up." The "show up" identification occurred just minutes after the crimes and w a s instantaneous and unequivocal. U n d e r these circumstances, the Superior Court did not err in denying suppression o f both in- and out-of-court identifications. See, e.g., United States ex rel. Gomes v. State o f New Jersey, 464 F.2d 686, 687-88 (3d Cir. 1972).

I I I.

A s we recently observed in United States v. MacEwan, 445 F.3d 237 (3d Cir. 2 0 0 6 ): W h e n evaluating proportionality challenges to sentences under the Eighth A m e n d m e n t, courts must examine three factors: (1) "the gravity of the o f f e n s e and the harshness of the penalty"; (2) "the sentences imposed on o th e r criminals in the same jurisdiction"; and (3) "the sentences imposed for c o m m is sio n of the same crime in other jurisdictions." Solem, 463 U.S. at 2 9 0 -2 9 2 , 103 S. Ct. 3001. When conducting this analysis, this Court has re c o g n iz e d that we "`should grant substantial deference to the broad a u th o rity that legislatures necessarily possess in determining the types and lim its of punishments for crimes.'" Rosenberg, 806 F.2d at 1175 (quoting S o le m , 463 U.S. at 290, 103 S. Ct. 3001).

T h is principle of substantial deference therefore "restrains us from a n extended analysis of proportionality save in rare cases." Id. (quoting S o le m , 463 U.S. at 290 n.16, 103 S. Ct. 3001). Consequently, in assessing s u c h a challenge, the first proportionality factor acts as a gateway or th re sh o ld . If the defendant fails to show a gross imbalance between the c rim e and the sentence, our analysis is at an end. We, therefore, must focus u p o n whether MacEwan's is "the rare case in which a threshold comparison o f the crime committed and the sentence imposed leads to an inference of g ro s s disproportionality." Ewing, 538 U.S. at 30, 123 S. Ct. 1179 (quoting H a m e lin , 501 U.S. at 1005, 111 S. Ct. 2680 (Kennedy, J.)) Id . at 247-48.

A ll of the sentences imposed on Garcia were within the range authorized by the V irg in Islands legislature. Virgin Islands law, for example, authorizes a sentence of life im p r is o n m e n t or imprisonment for any term of years for the crime of rape in the first d e g re e when the defendant, like Garcia, has an earlier rape conviction. 14 V.I.C. § 1701.

Moreover, given the character of the offense, the age of the victim, and the fact that these c rim e s occurred less than seven months after his release from the prison sentence im p o s e d for his prior rape, we, too, conclude that there is no "gross disproportionalty" b e tw e e n the gravity of Garcia's offenses and the harshness of the penalty.

IV .

W h e th e r two statutes constitute the same offense for double jeopardy purposes is b a se d not on whether the charges result from the same conduct but, rather, whether each re q u ire s proof of the same elements under the test articulated in Blockburger v. United S ta te s, 284 U.S. 299 (1932). As the Appellate Division persuasively explains, each of the c rim e s alleged here requires proof of at least one element not required to prove another of th e alleged crimes.

V.

C o rro b o ra tio n of the victim's testimony is no longer required in rape cases under V irg in Islands law, and the evidence at trial provides ample support for the rape c o n v i c ti o n s .

V I.

W e will affirm the judgment of the Appellate Division and will grant the motion of a p p e lla n t's counsel to withdraw. See Anders v. California, 386 U.S. 738 (1967).

1 We do not agree, however, with the Appellate Division's apparent suggestion that c o n c u rr e n t sentences for the same offense do not violate the Double Jeopardy Clause, see B a ll v. United States, 470 U.S. 856 (1985). But that suggestion is not essential to its h o ld in g that Garcia's rights under the Double Jeopardy Clause have not been violated.

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