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Precedential or Non-Precedential: Precedential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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