OPINION AND ORDER
On December 12, 2013, a grand jury indictment charged Rene Marquez-Perez (“Marquez”) with three counts of possession of narcotics with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Docket No. 12.) A jury trial commenced against Marquez on February 18, 2014. At the close of the government’s evidence, Marquez moved for a judgment of acquittal as to all counts pursuant to Federal Rule of Criminal Procedure 29 (“Rule 29”). (Docket No. 70.) After hearing arguments from both sides, the Court denied the Rule 29 motion. Id. At the close of the defendant’s ease, Marquez renewed his Rule 29 motion, which the Court again denied. Id. On February 26, 2014, a jury found Marquez guilty of all counts in the indictment. (Docket No. 74.) Marquez filed a timely
BACKGROUND
Without rehashing the entire trial here, the Court recounts background information and facts relevant to the legal analysis of Marquez’s Rule 29 motion, see United States v. Stierhoff,
In November, 2013, the Puerto Rico Police Department (“PRPD”) received an anonymous complaint that triggered an investigation about Marquez. (Docket No. 54 at pp. 9-11.) PRPD Agents Angel Acevedo-Gonzalez and Angel Gutierrez, along with Officers Orlando Camacho and Ruben Colon-Perez, conducted surveillance of Marquez’s residence in Aguadilla on November 18, 20, and 23, 2013. Id. at pp. 11-12, 16-17, 58. According to Agent Acevedo’s account, on November 18, 2013, Marquez and an individual named Michael Salas (“Michael”)
On the afternoon of November 20, 2013, PRPD Agent Angel Gutierrez followed Marquez and Michael, who were driving in Marquez’s Toyota Matrix, to Michael’s residence. (Docket No. 57 at pp. 26-27.) Michael got out of the car holding a clear plastic bag containing dark cuttings, which Agent Gutierrez identified as marijuana. Id. at p. 27 lines 11-14. As Michael entered his residence, Marquez drove towards his mother’s house. Id. at lines 15-21. Marquez parked in front of his mother’s residence, and Agent Gutierrez observed him exit the vehicle and place a black firearm in his waistband. Id. at p. 31 lines 7-16. Agent Gutierrez testified that the weapon he saw on November 20 had the same characteristics of the weapon Marquez handled on November 23. Id. at p. 34 lines 3-5.
Agent Acevedo’s video surveillance on November 20, 2013 showed Marquez and Michael entering Marquez’s residence. (Docket No. 54 at p. 34.) Marquez was holding a black fanny pack and a white bag. Id. Agent Acevedo identified the white bag as the same one (a black and white baseball bag) in which an AK-47 was later found at Marquez’s mother’s home. Id.
On the afternoon of November 23, 2013, Marquez and Michael were at Marquez’s residence. (Docket No. 54 at p. 17.) A young man known as “Wicho” arrived and “called to”
Afterwards, Marquez spoke to two men, one white-skinned and one dark-skinned. (Docket No. 54 at p. 21.) Marquez went again to the black Toyota Matrix, opened the driver’s door, and took out a black fanny pack—the one that had been observed previously. Id. He approached the white-skinned man, opened the fanny pack, took out a medicine container, and handed it to the white-skinned man. Id. The man counted white pills and gave Marquez some money. Id. That same afternoon, a dark-skinned man arrived, called Marquez, and Marquez and Michael came out of the residence. Id. at p. 22. Michael handed something over to the dark-skinned man. Michael then went to the black Toyota Matrix, opened the driver’s side door, reemerged with his right fist closed, and handed something to the man. Id. Agent Acevedo again concluded that this was a controlled substance transaction, and that Marquez supervised the transaction. Id. at pp. 22 & 49. Next, a tall, white-skinned man arrived, and Marquez told him in a loud voice, “I have an AK with five magazines. I will sell it for $5,000. Do you want to see it?” Id. at p. 22. Marquez showed the man pictures on his cell phone, and the man left. Id. Agent Acevedo testified that Marquez appeared to be showing pictures of the AK. Id. at p. 53. Then, Wicho returned to the residence and gave some money to Marquez. Id. at p. 22.
On November 27, 2013, PRPD agents executed search warrants of Marquez’s home and car. (Docket No. 54 at p. 61.) Agents seized the following items pursuant to the search warrants:' (1) a loaded, black 9 mm pistol, found on top of an air-conditioning unit in a bedroom; (2) a black, loaded .22 caliber rifle, found in a room in the home; (3) a black fanny pack from Marquez’s black Toyota Matrix; and (4) two .45 caliber magazines. (Docket Nos. 54 at pp. 62-63; 59 at pp. 27, 30-31.) The fanny pack contained 45 baggies of crack cocaine, two bags of powder cocaine, 12 baggies of marijuana, 67 white pills, an empty .45 caliber magazine, and a container of small plastic bags.
Later that same day, Homeland Security Investigations agent Felix Perez interviewed Marquez. (Docket No. 69 at p. 5.) Marquez told Agent Perez that he made a living by selling drugs. Id. at p. 12 lines 2-4. Marquez also stated that all the drugs and firearms seized belonged to him. Id. at lines 10-12.
DISCUSSION
I. Rule 29 Standard
A court may enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. Fed.R.Crim.P. 29(c). In reviewing a Rule 29 motion for judgment of acquittal, a district court must consider the evidence, both direct and circumstantial, “in the light most favorable to the prosecution” to determine whether the “body of proof, as a whole, has sufficient bite to ground a reasoned conclusion that the' government proved each of the elements of the charged crime beyond a reasonable doubt.” United States v. Lara,
II. Sufficiency of the Evidence
A. Marquez’s Confession to Agent Perez
Before turning to the specific offenses that Marquez contests, the Court addresses the final argument in Marquez’s Rule 29 motion: that he admitted to owning only the firearms seized, but not the drugs. (Docket No. 89 at pp. 9-10.) Agent Perez’s testimony regarding Marquez’s interview reads as follows:
A. And then I asked him how did he make [sic] a living, and he responded he sells narcotics, he sells drugs. In Spanish he told me that “I sold drugs.”
Q. Did he mention something else?
A. Well, right after that, I asked him about the seizure that the search warrant, the weapons that were seized, if he knew who that belonged to. And he freely told me that that belonged to him.
Q. So he admitted that the drugs and the firearms that were seized were his?
A. Yes, he did.
(Docket No. 69 at p. 12 lines 2-12.)
According to Marquez, Agent Perez testified that Marquez only admitted to ownership of the firearms, but that the prosecutor used a leading question to evince the conclusion that Marquez had admitted to the ownership of both the guns and the drugs. The government responds that the testimony indicates that Marquez admitted to owning everything that was seized. (Docket No. 98 at pp. 9-10.) Though Marquez’s explanation is plausible, so is the government’s. Unfortunately for Marquez, however, at this stage, such “dual plausibility dooms his claim.” United States v. Bobadilla-Pagan,
B. Counts One through Three: Possession with Intent to Distribute Controlled Substances
To prove that a defendant possessed a controlled substance with intent to distribute, “the government must show that the defendant ] knowingly and intentionally possessed, either actually or constructively, a controlled substance with the specific intent to distribute.” United States v. Garcia-Carrasquillo,
Drugs were seized from two locations: (1) the black fanny pack found in Marquez’s car, and (2) a room in Marquez’s mother’s house. The Court addresses each location in turn.
1. The Fanny Pack
As to the fanny pack, Marquez advances three arguments. First, he argues that he and Michael had joint possession over the fanny pack, and the evidence did not demonstrate that either of them controlled it on the date in the indictment— November 27, 2013. (Docket No. 89 at pp. 2-3.) The government responds that a reasonable jury could have concluded that Marquez possessed the fanny pack on or around November 27, 2013. (Docket No. 98 at p. 2.) The Court agrees. To start, the jury could have relied on Marquez’s confession that the drugs seized were his to conclude that he possessed the fanny pack—and the drugs within—on November 27, 2013. Additionally, Agent Acevedo testified that Marquez retrieved, handled, and hid the fanny pack on November 18, 20, and 23,
Second, Marquez contends that while the evidence shows that he sold pills,
Last, Marquez avers that even if the Court were to assume that he had possession of the fanny pack on the indicted date, the quantity of drugs seized was insufficient to show an intent to distribute. (Docket No. 89 at p. 3.) Marquez points to no authority that would indicate that the quantity
2. Marquez’s Mother’s Residence
Marquez contends that the only evidence tying Marquez to his mother’s house is Agent Gutierrez’s testimony that he saw Marquez arrive at the home on one occasion with a pistol in his waistband. Marquez claims that no evidence indicates that the drugs seized belonged to him, or that he had dominion and control over the area that was seized. Marquez again ar
Again, the most incriminating evidence that Marquez possessed the drugs seized from his mother’s house was his confession. In addition to the confession, the government presented sufficient circumstantial evidence to permit the jury to infer Marquez’s possession of the drugs beyond a reasonable doubt. The drugs were found in four bags behind wooden panels in a room under construction at Marquez’s mother’s house. (Docket No. 57 at pp. 35, 44.) Video surveillance on November 20, 2013, showed Marquez carrying one of the four bags found behind the wooden panels—a black and white baseball bag—into his home (Docket No. 54 at p. 34), indicating his ownership of that particular bag. Further, Agent Acevedo described an encounter on November 23, 2013, in which Marquez offered to sell a man his AK for $5,000, and then seemed to show the man pictures of the weapon on his cell phone. Id. at pp. 22, 53. The jury could have reasonably inferred that the AK-47 found in the black and white bag on November 27, 2013 was the same one Marquez discussed on November 23, further indicating his ownership of the bag and the AK-47, and supporting a conclusion that he also possessed the surrounding bags and drugs.
As to Marquez’s intent to distribute the drugs seized at his mother’s house, the jury had sufficient evidence to support a finding of guilt. The drugs were found alongside drug-packaging paraphernalia: scales, empty baggies, a metal sieve, and black weights. (Docket Nos. 57 at p. 44 lines 1-6; 66 at pp. 11-14, 24-25, 44.) The jury could have reasonably credited Officer Miguel Arrocho-Irizarry’s testimony that that type of paraphernalia is used to prepare drugs for distribution. Id. at p. 12. Finally, the jury could have reasonably relied on Marquez’s admission that he made a living by selling drugs to conclude that these particular drugs were also possessed by him in furtherance of his trade.
In conclusion, considering the totality of the evidence with regards to the fanny pack and the drugs seized from Marquez’s mother’s house, it is clear that a reasonable jury could have found Marquez guilty of possession of controlled substances with intent to distribute beyond a reasonable doubt. Accordingly, the Court DENIES Marquez’s motion for a new trial as to counts one, two, and three.
C. Count Four: Possession of a Firearm in Furtherance of a Drug Trafficking Crime
Marquez maintains there was insufficient evidence to convict him of possessing a firearm “in furtherance of’ a drug trafficking crime. (Docket No. 89 at p. 4.) Title 18 U.S.C. § 924(c) prescribes a mandatory minimum sentence of five years imprisonment for any person who, “during and in relation to any ... drug trafficking crime, ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). At trial, the government’s theory centered on Marquez’s possession of three firearms “in furtherance of’ a drug trafficking crime. (See Docket No. 98 at p. 5.) Thus, the government had to show that Marquez “(1) committed a drug trafficking crime; (2) knowingly possessed a firearm; and (3) possessed the firearm in furtherance of the drug trafficking crime.” United States v. Pena,
Because “the ‘in furtherance of element does not have a settled, inelastic definition,” the Court looks at several objective and subjective factors to determine whether the nexus was sufficiently proven. United States v. Marin,
“The mere presence of a firearm in the area where the drug offense occurred is insufficient to constitute possession ‘in furtherance of a drug trafficking crime.” Bobadilla-Pagan,
Here, agents seized three different firearms from two different locations. Marquez admitted that they all belonged to him, satisfying the “knowing possession” element. Further, as explained above, the Court finds that sufficient evidence existed for the jury to convict Marquez of possession of drugs with the intent to distribute, satisfying the drug trafficking element of the current count. Accordingly, the only issue that remains is whether Marquez possessed any or all of these firearms “in furtherance of’ a drug trafficking crime.
At trial, the government presented evidence that two loaded firearms—a black pistol and a rifle—were seized from Marquez’s home, and that Marquez had conducted drug transactions from his home. (Docket Nos. 54 at pp. 62-63; 59 at pp. 27-31.) Additionally, on November 23, 2013, Marquez tested the pistol with Wicho outside of Marquez’s residence shortly before a controlled substances transaction occurred in the same location. (Docket No. 54 at pp. 17-20.) Officers also seized a fanny pack from Marquez’s car that contained both drugs and an empty .45 caliber magazine. (Docket Nos. 54 at p. 63; 59 at pp. 29-31, 51.) The government presented evidence that Marquez carried the black pistol and drugs in his car. (Docket No. 57 at pp. 27, 31, 34.) Finally, Agent Colon testified that based on his experience, a weapon such as Marquez’s pistol is typically used by drug traffickers “to protect themselves at their drug distribution points to defend themselves from their enemies.” (Docket No. 59 at pp. 57-58.)
Marquez argues that the evidence shows that his sole intent with regard to the pistol was to sell it. He further contends that had he intended to use the. firearm to protect his drug trade, he would have carried it in the fanny pack with the drugs. Finally, Marquez claims that he carried the pistol to protect himself and his home.
The government also presented sufficient evidence to allow a reasonable jury to conclude that Marquez possessed his AK-47 “in furtherance of’ a drug trafficking crime. The weapon was found in the same location as a large quantity of drugs, drug paraphernalia, and bullets. (Docket No. 57 at p. 44.) Marquez’s argument—that he intended to sell the AK-47, rather than use it to protect his drug business—again only goes to his subjective intent, and does not rebut the objective factors the Court considers. While plausible, Marquez’s explanation does not surmount the high ■ bar set by a Rule 29 challenge. The jury was tasked with weighing the government’s and defense’s differing accounts and deciding which ultimately to believe. See Bobadillar-Pagan,
D. Count Five: Possession of a Firearm by a Convicted Felon
Marquez was convicted of violating 18 U.S.C. § 922(g), which prohibits anyone who has been convicted by any court of a “crime punishable by imprisonment for a term exceeding one year” from possessing a firearm or ammunition. 18 U.S.C. § 922(g)(1). At trial, the government produced evidence that Marquez was convicted of violating article 3.1 of Puerto Rico’s Law 54 in 2000. (Docket No. 79-7.) At the time of Marquez’s conviction, article 3.1 provided that the crime was punishable “by imprisonment for a fixed term of twelve (12) months, unless there are extenuating circumstances, when it may be re
Marquez contends that because the statute provided for a fixed, twelve-month term of imprisonment, his conviction was insufficient to satisfy the felony element of section 922(g). (Docket No. 89 at pp. 8-9.) In support of this argument, Marquez cites a Puerto Rico Supreme Court decision, Pueblo v. Santa Velez,
The government argues that Santa Velez does not apply here, where the defendant’s underlying conviction was by way of guilty plea. The government cites no authority suggesting that any distinction exists between convictions pursuant to guilty pleas and convictions pursuant to jury verdicts. The government then argues that “the qualification of a prior conviction does not depend on the sentence a defendant actually received but on the maximum sentence that he could have received for his conviction.” United States v. Cozart,
The government’s arguments miss the mark. In examining the maximum sentence that Marquez could have received, the Court is forbidden “from considering hypothetical aggravating factors” or “ ‘facts outside the record of conviction [that] could have authorized’ a conviction of a crime punishable by more than one year’s imprisonment.” Simmons,
III. Conclusion
For the reasons articulated above, the Court GRANTS in part and DENIES in part Marquez’s Rule 29 motion. (Docket No. 89.) As to count five, the Court GRANTS Marquez’s motion and VACATES Marquez’s conviction for that count. The Court DENIES Marquez’s motion as to counts one through four.
IT IS SO ORDERED.
Certified Translation
Janis Palma, USCCI
Pueblo v. Santa Velez,
EL PUEBLO DE PUERTO RICO, appellee,
v.
JAIME SANTA VÉLEZ, appellant.
In the Puerto Rico Supreme Court.
Number: CC-2007-65
(.........)
III
As opposed to the 2004 Criminal Code, in which the penalties are determined by the offense’s degree, the 1974 Criminal Code established a set penalty for each crime, which could vary depending on whether there were any aggrava
When manslaughter is committed by someone while driving a motor vehicle, a penalty of one (1) year imprisonment shall be imposed. If there are aggravating circumstances involved, the fixed penalty may be increased up to a maximum of three (S) years; if there are mitigating circumstances involved, the penalty may be reduced up to a minimum of six (6) months and one day. The court may impose restitution in addition to the established imprisonment term, or both penalties. (Emphasis added.) Art. 86 of the 1974 Criminal Code (33 L.P. R.A. sec. 4005 (1983 ed.))
As one reads that article, one sees that the crime of manslaughter, when caused while driving a motor vehicle, carries a fixed penalty of one year. For a judge to be able to impose a higher or lower penalty to the one-year fixed term there must be a finding of aggravating or mitigating circumstances. With a guilty verdict by a Jury alone *73, the judge can only impose the fixed penalty. Therefore, the statutory limit according to Apprendi and Cunningham is the fixed term of one year. Notice that the judge has no discretion to impose any other penalty unless there is a finding of additional facts beyond the jury’s verdict, since the article in question establishes that “imprisonment shall be imposed for a fixed term of one year.” The article does not say that the judge may impose, but rather orders the imposition of said fixed penalty, limiting the judge’s discretion in this exercise. In that sense, the text of the law is compulsory, not voluntary, and therefore the judge has an obligation to impose the fixed penalty in the absence of any mitigating or aggravating circumstances.
The limitations on the judge’s discretion when imposing penalties stem from the 1974 Criminal Code itself, in its General Part. Thus, Article 58 of that body of laws establishes:
When the court sentences to a prison term, the sentence shall be precise, with a specific duration. In felony cases, the fixed term established by law for the crime shall be imposed. Should there be any aggravating or mitigating circumstances, the fixed penalty must be increased or decreased within the limits established by law for the crime. In these cases, the prison term to be imposed will also be fixed. (Emphasis added.) Art. 58 of the 1974 Criminal Code (33 L.P.R.A. sec. 3282).
Pursuant to that article, at the time of the imposition of sentence, judges are limited to the application of the fixed penalty established for felonies in the absence of aggravating or mitigating circumstances. The finding of aggravating or mitigating circumstances is the key that allows judges to deviate from the fixed penalty established and grants them the discretion to impose any penalty they deem pertinent, within the limits established by the crime itself. Nevertheless, without this finding the judge cannot *74 impose a penalty greater or lesser than the fixed one already established.
Hence, one of the purposes in approving the Determinate Sentences Act, in addition to providing for certainty in the sentences imposed, was to limit the judges’ discretion when applying the penalties already established. ■ The old system of indeterminate sentences led to disparity, since different judges applied inconsistent penalties for similar facts, and therefore the administration of justice had intolerable variations from one judge to another. Therefore, the Determinate Sentences Act came to address such an anomaly, establishing fixed penalties for each one of the *75 felony, thereby limiting the discretion of the lower court judges.
Therefore, the text of Article 58 of the Criminal Code, swpra, the wording for each one of the felonies established in said Code, and the legislative intent of the Determinate Sentences Act, support the conclusion that lower court judges, pursuant to the 1974 Criminal Code, lack discretion to impose any penalty within the range established for each crime.
When analyzing the penalty imposition system under the 1974 Criminal Code in accordance with the federal jurisprudence discussed above, we must conclude that our system, in its application, is not so different from the system established by California, which was declared unconstitutional in Cunningham. It is true that California’s system, unlike ours, is based on a triad, meaning that only three sentences are possible: the intermediate, the minimum, and the maximum. However, what is decisive for the Apprendi analysis is not whether the system is one of triads or not, but to ascertain whether or not the judge has the discretion to impose any penalty within the range, or whether he or she has an obligation to impose the fixed penalty established for the crime, in the absence of mitigating or aggravating circumstances. In California, as in Puerto Rico, a judge has an obligation to impose the intermediate fixed penalty unless he or she makes a finding of mitigating or aggravating circumstances. Apprendi and subsequent cases apply to bar a judge from being the one who increases the penalty beyond the statutory limit when making his or her own finding as to the aggravating factors, but rather forces such finding to be made by a jury beyond a reasonable doubt.
Having accepted the limited discretion that our judges have to impose penalties under the 1974 Criminal Code, we must arrive at an appropriate solution for our system, taking into account the two avenues that the Supreme Court offered to the states in Cunningham to comply *76 with the Ap-prendi standard, and to be able to consider aggravating factors at the time an appropriate sentence is to be imposed in cases decided by a jury. According to the language in the 1974 Criminal Code and the
So the only solution we can adopt that is consistent with the determinate sentence system in the 1974 Criminal Code and with the right to jury trial guaranteed by the Sixth Amendment is to submit the aggravating factors to the jury and have them proved beyond a reasonable doubt. For all of the above, we find that in cases heard by a jury pursuant to the provisions of the 1974 Criminal Code, the aggravating factors for the penalty must be submitted to said institution and proven beyond reasonable doubt, except when admitted by the defendant.
The current rules of Criminal Procedure do not contemplate the standard we are adopting today, but they do not hinder it, either. It is our function to establish the procedure that must be followed in cases heard by a jury. In cases in which the aggravating factors arise from the admissible evidence presented, the Prosecution may ask the Court that these be submitted to the jury jointly with the guilty or not guilty decision. Should the jury return a guilty verdict, it must likewise decide if the aggravating factors submitted were proven beyond a reasonable doubt.
CERTIFICATION BY TRANSLATOR
I, JANIS PALMA, an English-Spanish interpreter and translator certified to that effect by the Administrative Office of the United States Courts and the National Association of Judiciary Interpreters and Translators (NAJIT) respectively, do hereby certify that I have translated the foregoing document and it is a true and accurate translation to the best of my knowledge and ability.
/s/
Janis Palma, USCCI, NCJIT-S Date
Date
Notes
. A defendant may move the Court for judgment of acquittal within fourteen days after a guilty verdict or after the discharge of the juty, whichever is later. Fed.R.Crim.P. 29(c)(1). In this case, the guilty verdict and jury discharge occurred on February 26, 2014. (Docket No. 71.) On March 12, 2014, Marquez moved for, and the Court granted, an extension of time to file a Rule 29 motion until April 7, 2014. (Docket Nos. 77 & 78.) Because Marquez filed his Rule 29 motion on April 7, 2014, his motion is timely.
. Because the government’s witnesses referred to Michael Salas as "Michael”
. It is not clear from the transcript whether the people arriving at Marquez’s home called out to Marquez, or called him on the phone.
. While the text of the transcript seems to indicate that Michael said “Give me four of crack” to the dark-skinned man, the context of the subsequent occurrences indicates that it was the dark-skinned man who was seeking to purchase—and did purchase—drugs from ■ Michael. See id. at p. 19 lines 1-8.
. PRPD Agent Ruben A. Colon Perez testified that, based on his experience, the bags were the kind used to prepare controlled substances for distribution. (Docket No. 59 at p. 31 lines 7-15.)
. The AK-47 had several added “upgrades” to the manufactured model: a scope, flashlight, and expandable arm. (Docket No. 66 at pp. 14, 139 at lines 15-19.) Additionally, the rifle's flash suppressor had been removed, and it had seven high capacity magazines. Id. at pp. 140-41.
. This was also referred to as a "pellet gun" at trial. (Docket No. 66 at p. 15 line 5.)
. Of the magazines, seven were loaded, extended AK-47 magazines, and four were AR-15 magazines. (Docket No. 57 at p. 44 lines 1-4.)
. The jury instructions explained that to show that the charged offenses were committed "on or about” November 27, 2013, the government had "to prove beyond a reasonable doubt that the offenses were committed on a date reasonably near the dates alleged in the Indictment,” but not "precisely on the dates charged.” (Docket No. 72, p. 20 instruction #11.)
. Marquez was not indicted for distribution of prescription pills. (See Docket No. 12.) Thus, any evidence that Marquez sold pills is not probative of the charges that Marquez sold—or intended to sell—controlled substances.
. Because neither party advances arguments regarding the specific drug weights, the Court refers generally to the quantity of packages in which drugs were found in its discussion of drug quantity.
. In support of his self-defense argument, Marquez cites Currier v. United States,
. The Court does not find sufficient evidence in the record to support a reasonable jury’s conclusion that the rifle was used in furtherance of a drug trafficking crime. Because all three rifles were charged in one count, however, this insufficiency does not impact the verdict.
. The government, in a footnote, objects to Marquez’s reliance on an untranslated Spanish-language decision of the Puerto Rico Supreme Court, in contravention of 48 U.S.C. § 864 ("all pleadings and proceedings in the United States District Court for the District of Puerto Rico shall be conducted in the English language.”) and Puerto Ricans for P.R. Party v. Dalmau,
. The statute considered in that case stated that the offense was punishable with “a penalty of one (1) year imprisonment____If there are aggravating circumstances involved, the fixed penalty may be increased up to a maximum penalty of three (3) years; if there are mitigating circumstances involved, the penalty may be reduced up to a minimum of six (6) months and one day.” Id. (citing P.R. Laws Ann. tit. 33 § 4005 (1983)).
. Having granted Marquez’s motion on the basis of the predicate offense, the Court need not entertain Marquez's arguments regarding the interstate commerce nexus. (See Docket No. 89 at p. 9.)
. Art. 86 of the Criminal Code, supra, provides that "[w]hen the manslaughter is committed by someone while driving a motor vehicle, a fixed term of imprisonment of one (1) year shall be imposed. Should there be any aggravating circumstances, the fixed penalty established may be increased up to a maximum of three (3) years; should there be any mitigating circumstances, it may be reduced up to a minimum of six (6) months and one (1) day. The Court may impose restitution in addition to the established term of imprisonment, or both penalties.”
. "Rule 171. Sentencing; Evidence of mitigating or aggravating circumstances
"The court, on its own motion or upon a motion by . the defendant or the prosecutor, with notice to the opposing party or parties, may hear within the shortest period of time possible, evidence of mitigating or aggravating circumstances for purposes of imposing the penalty.
"(b) The following may be considered as aggravating circumstances, among others:
"(1) Facts related to the commission of the crime and to the defendant, including among others:
"(A) The crime was one of violence, serious bodily harm was caused, or there was a threat to cause it, and facts were evidenced that reveal a great cruelty, no human respect, and a rejection of the standards of decency.
"(G) The defendant threatened the witnesses, unlawfully prevented the witnesses from being present at the hearings, or induced them to commit perjury, or in any other way obstructed the judicial process.
"(O) The victim of the crime is a person who is sixty (60) years of age or older____” 34 L.P.R.A. Ap. II.
. "Determinate Sentence ”
"When the court imposes a prison term, it shall impose a determinate sentence that will have a specific duration. In felony cases, the fixed term established by law for that crime shall be imposed. Should there be any aggravating or mitigating circumstances, the fixed penalty must be increased or decreased within the limits established by law for the crime. In these cases the term of imprisonment imposed shall also be fixed.” Art. 58 of the 1974 Criminal Code (33 L.P. R.A. sec. 3282).
.Likewise, the validity of the statutes under the federal standard has been sustained in several states, although their applicability has been limited pursuant to the Sixth Amendment and federal case law. See: López v. People,
. [Translator’s note: there is no footnote 8 in the original document.]
. [Translator’s note: there is no footnote 8 in the original document.]