U.S. v. McMinn, 96-1592

Decision Date08 October 1996
Docket NumberNo. 96-1592,96-1592
Citation103 F.3d 216
PartiesUNITED STATES of America, Appellee, v. Robert McMINN, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Matthew J. Lahey, with whom McLaughlin, Hemeon & Lahey, P.A., Laconia, NH, was on brief for appellant.

Jean B. Weld, Assistant United States Attorney, with whom Paul M. Gagnon, United Before TORRUELLA, Chief Judge, CYR * and BOUDIN, Circuit Judges.

States Attorney, Concord, NH, was on brief for appellee.

CYR, Circuit Judge.

Appellant Robert McMinn mounts four challenges to the sentence imposed following his conviction on several felony counts relating to his acquisition, interstate transportation, and sale of stolen audio and video components. See 18 U.S.C. §§ 371, 2314 & 2315. As the sentence enhancement imposed pursuant to U.S.S.G. § 2B1.1(b)(4)(B) for engaging "in the business of receiving and selling stolen property" ("ITB" enhancement) constituted error, we vacate the district court judgment and remand for resentencing.

I DISCUSSION
A. Upward Departure (U.S.S.G. § 4A1.3)

The district court granted the government's motion for an upward departure under U.S.S.G. § 4A1.3 (1995), from a Total Offense Level ("TOL") of 18 and a Criminal History Category ("CHC") of III, to TOL 20 and CHC VI, on the ground that CHC III would have underrepresented the seriousness of McMinn's prior criminal conduct and the likelihood of recidivism. McMinn contends that the three affidavits relied upon by the district court for its departure-related findings were not reliable. 1

First, the district court did not place principal reliance on the challenged affidavits for its factual findings relating to the seriousness of McMinn's prior criminal conduct. 2 Moreover, though McMinn claims that the affidavits were uncorroborated, and the affiants untrustworthy, he chose not to cross-examine one of the affiants at sentencing. In addition, he had cross-examined the other two affiants at the earlier trial on drug-conspiracy charges before the same judge. See supra note 1. Finally, the district court was presented with unchallenged police reports, describing various burglaries and corroborating other information in the affidavits. See United States v. Shrader, 56 F.3d 288, 294 (1st Cir.1995). There was no clear error.

B. Obstruction of Justice Enhancement (U.S.S.G. § 3C1.1)

Second, McMinn challenges a two-level enhancement for obstruction of justice, see U.S.S.G. § 3C1.1, based on threatening letters he sent in February, April and October of 1995 to Steven Serfass, a prospective government witness. McMinn argues that Serfass was not connected with the investigation, prosecution, or sentencing of the "instant" offenses involving interstate transportation, receipt, and sale of stolen audio and video components, since Serfass neither testified, nor were the threatening letters admitted, at the trial on these charges. Instead, Serfass testified at an earlier trial on drug charges which were severed from the stolen-property charges on June 20, 1995. As the enhancement for obstruction of justice under U.S.S.G. § 3C1.1 applies only to obstructing an "investigation, prosecution, or sentencing of the instant offense," McMinn claims that the district court erred as a matter of law in concluding that conduct unconnected with the stolen-property charges could support the enhancement. We find no error.

At the time McMinn mailed the threatening letters, Serfass remained a prospective government witness in relation to the "instant

offense"; i.e., the stolen-property charges. It was not until January 1996, immediately prior to the trial on the stolen-property charges, that it became clear that Serfass would not testify. Thus, there was no error in the district court's determination that McMinn attempted to obstruct the prosecution of the stolen-property charges by mailing the threatening letters.

C. ITB Enhancement (U.S.S.G. § 2B1.1(b)(4)(B)(1995))

Third, McMinn contends that the district court erred in imposing a four-level ITB enhancement under U.S.S.G. § 2B1.1(b)(4)(B) (1995). Relying primarily on United States v. Braslawsky, 913 F.2d 466, 468 (7th Cir.1990), he argues that an ITB enhancement is impermissible unless the defendant was in the business of receiving and selling property stolen by others (i.e., in the business of "fencing" stolen property). The district court ruling that McMinn's criminal conduct came within the ITB enhancement guideline is reviewed de novo. See United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.1992).

The four-level ITB enhancement guideline, by its express terms, applies only if "the offense involved receiving stolen property, and the defendant was a person in the business of receiving and selling stolen property." U.S.S.G. § 2B1.1(b)(4)(B) (emphasis added). Thus, on its face at least, the ITB guideline does not apply to a defendant who makes a business of stealing property; that is, a professional "thief," as distinguished from a professional fence. See Braslawsky, 913 F.2d at 468 (holding that, by its terms, the ITB enhancement does not apply to a professional thief).

Under the common-law tradition, stealing property from another normally does not equate with "receiving" property from its rightful owner. See Milanovich v. United States, 365 U.S. 551, 558, 81 S.Ct. 728, 732, 5 L.Ed.2d 773 (1961) (Frankfurter, J., dissenting) ("a thief cannot be charged with committing two offenses--that is, stealing and receiving the goods he has stolen[,] ... for the commonsensical, if not obvious, reason that a man who takes property does not at the same time give himself the property he has taken.") (citations omitted); Baugh v. United States, 540 F.2d 1245, 1246 (4th Cir.1976) ("logic ... instructs us that there is an inherent inconsistency in treating a taking as a receipt"); see also United States v. Trzcinski, 553 F.2d 851, 853 (3d Cir.1976), cert. denied, 431 U.S. 919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977). Therefore, statutes which criminalize "receiving" are generally not thought to target the thief himself, but the wrongdoer who knowingly acquires the loot from or through the thief. See, e.g., Milanovich, 365 U.S. at 552-56, 81 S.Ct. at 729-730; Heflin v. United States, 358 U.S. 415, 419-20, 79 S.Ct. 451, 453-54, 3 L.Ed.2d 407 (1959); United States v. Washington, 861 F.2d 350, 352 (2d Cir.1988). Thus, a fair reading of the plain language employed in section 2B1.1(b)(4)(B) strongly suggests that a defendant engaged in selling only the property he is responsible for stealing has not "received" it in the sense contemplated by the Sentencing Commission.

Should there be any doubt about the plain language, the parallel development of the sentencing guideline governing thefts of property, see U.S.S.G. § 2B1.1, and the guideline on receiving stolen property, see id. § 2B1.2, together with the evolution of the language employed in the ITB enhancement guideline itself, see id. § 2B1.1(b)(4)(B), tend to confirm that the Commission envisioned that "theft" alone not constitute a "receiving" of stolen property for these purposes. Under the original Sentencing Guidelines, U.S.S.G. § 2B1.1 (1987) governed "Larceny, Embezzlement and Other Forms of Theft," whereas U.S.S.G. § 2B1.2 (1987) governed "Receiving Stolen Property." The offense of receiving stolen property was subject to an ITB enhancement, see U.S.S.G. § 2B1.2(b)(2)(A) (1987) ("If the offense [i.e. receiving stolen property] was committed by a person in the business of selling stolen property, increase by 4 levels.") (emphasis added), which clearly applied to the professional fence and not to a defendant who simply sold property he pilfered. See id. § 2B1.2, comment (backg'd) (1987) ("Persons who receive stolen property for resale receive a sentence enhancement ....") (emphasis The disjunctive treatment required under these two guideline sections clearly implied that the Commission did not intend that the ITB enhancement apply to defendants responsible only for the theft of the ill-gotten property and not its "resale." See supra note 3. At the time the Sentencing Guidelines were promulgated, the Commission consistently demonstrated its intention that like enhancements be applicable to both "theft" and "receipt" offenses by including a parallel enhancement provision in each guideline. See id. §§ 2B1.1(b)(2); 2B1.2(b)(3) (1987) (parallel enhancements relating to stealing and receiving (stolen) firearm, destructive device or controlled substance); id. §§ 2B1.1(b)(4); 2B1.2(b)(2)(B) (1987) (parallel enhancements for more than minimal planning relating to stealing and receiving (stolen) property); id. §§ 2B1.1(b)(6); 2B1.2(b)(4) (1987) (parallel enhancements for engaging in organized criminal activity relating to stealing and receiving (stolen) property); see also U.S.S.G.App. C, amend. 117 (effective Nov. 1, 1989) (adding ITB enhancement to U.S.S.G. § 2B6.1--trafficking in motor vehicles with altered or obliterated identification numbers--"to resolve an inconsistency between ... section [2B6.1] and § 2B1.2").

                added); 3  Braslawsky, 913 F.2d at 468.   The guideline governing theft crimes included no corresponding ITB enhancement.  See U.S.S.G. § 2B1.1 (1987)
                

The subsequent evolution of the ITB enhancement guideline likewise substantiates that it was meant to cover the professional fence, not the thief. As the Commission broadened the scope of U.S.S.G. § 2B1.2 ("Receiving Stolen Property"), the language in the ITB enhancement itself was amended to retain its narrow focus upon defendants who "fence" stolen goods. The "Receiving Stolen Property" guideline was amended in 1989 to cover "Transporting, Transferring, Transmitting, or Possessing Stolen Property." U.S.S.G. § 2B1.2, as amended by amend. 102 (effective Nov. 1, 1989). Under the same amendment, the ITB enhancement guideline was changed to read, "[i]f the offense was committed by a person in the business of...

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