NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ No. 17-1438 ________________ UNITED STATES OF AMERICA v. TOMAS LIRIANO CASTILLO, Appellant ________________ On Appeal from the District Court for the Virgin Islands (D.C. Criminal No. 3-16-cr-00029-001) District Judge: Honorable Curtis V. Gomez ________________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 14, 2017 Before: SMITH, Chief Judge, MCKEE, and SCIRICA, Circuit Judges (Filed: July 18, 2018) ________________ OPINION * ________________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SCIRICA, Circuit Judge Tomas Miguel Liriano Castillo appeals his conviction and sentence for drug-related offenses and illegal entry. Castillo filed four motions in the trial court, contending (1) the District Court of the Virgin Islands, an Article IV court, did not have jurisdiction to hear his case because the United States was a party, (2) the trial court judge, who has served over ten years, presided over his case in violation of the Appointments Clause of Article II of the United States Constitution, (3) law enforcement officers violated the Vienna Convention on Consular Relations by failing to inform the consulate of his home country of his arrest, and (4) there was insufficient evidence to convict him of illegal entry because the regulation designating “ports of entry” is invalid under the Administrative Procedure Act. The trial court denied Castillo’s motions. We will affirm as to those issues. But, because the trial court imposed a general sentence which violates the statutory maximum on the illegal entry count, we will vacate the sentencing order and remand to the court for resentencing. I. On May 9, 2016, a Drug Enforcement Administration agent in St. Thomas received a tip about a vessel traveling toward the island from Tortola. The vessel entered Hull Bay in St. Thomas on the same day. Three agents traveled to Hull Bay and observed a boat moving slowly, coming closer to shore. While the agents were watching its progress, a vehicle pulled in next to them, and two men got out and started walking in the direction of the approaching boat. Castillo, who was born in the Dominican Republic, disembarked from the boat and came to shore. Agents detained the two men from the vehicle and then approached Castillo. After the agents identified themselves as police officers, Castillo “took three or four big steps 2 like he was going to take off running, and . . . took the backpack [he was wearing] off and threw it under a nearby tree.” App. 221. That backpack contained several kilogram-sized packages of cocaine. Castillo was charged on August 11, 2016, with (1) conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846 (Count One); (2) possession with intent to distribute narcotics, in violation of 21 U.S.C. § 841(a)(1) (Count Two); (3) federal use of communication facility to facilitate a felony, in violation of 21 U.S.C. § 843(b) (Count Three); and (4) illegal entry, in violation of 8 U.S.C. ...
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