U.S. v. Fuentes, 94-4916

• Citation: 107 F.3d 1515
• Decision Date: 25 March 1997
• Docket Number: No. 94-4916,94-4916
• Parties: , 10 Fla. L. Weekly Fed. C 777 UNITED STATES of America, Plaintiff-Appellee, v. Jose FUENTES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1515

107 F.3d 1515

65 USLW 2694, 10 Fla. L. Weekly Fed. C 777

UNITED STATES of America, Plaintiff-Appellee, v. Jose FUENTES, Defendant-Appellant.

No. 94-4916.

United States Court of Appeals Eleventh Circuit.

March 25, 1997.

Paul M. Rashkind, Assistant Federal Public Defender, Thomas S. White, Acting Federal Public Defender, Howard M. Srebnick, Acting Assistant Federal Public Defender, Miami, FL, for Defendant-Appellant.

Kendall B. Coffey, U.S.Atty., Eric I. Bustillo, Harriet R. Galvin, Linda Collins Hertz, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Circuit Judge, and RONEY and PHILLIPS ^*, Senior Circuit Judges.

TJOFLAT, Circuit Judge:

In this appeal, Jose Fuentes challenges the sentence he received in the district court, following a plea of guilty, for conspiring to run a "chop shop" operation. ¹ Pursuant to this operation, Fuentes had stolen several Porsche automobiles, had taken them to different locations where he removed many of their parts, and after removing or altering the parts' vehicle identification numbers ("VINs"), had sold the parts to customers throughout the country. Prior to this federal prosecution, Fuentes had been convicted in state court for some of this activity, and at the time of his conviction in the district court, he was serving two concurrent state sentences. The district court sentenced him to a term of sixty months imprisonment consecutive to his two state sentences and ordered him to pay restitution.

In this appeal, Fuentes challenges the court's determination under the federal sentencing guidelines that the federal sentence should run consecutively to the state sentences. He also claims that the order of restitution was erroneous in light of his financial condition. We agree with him on both points and accordingly vacate his sentence and remand for resentencing.

I.

Fuentes has a long criminal history. ² From his eighteenth birthday in 1976 until 1984, he was arrested at least seven times and convicted five times for various crimes, including battery, carrying a concealed firearm, drug possession, and grand theft.

Beginning in May 1985, his criminal endeavors focused on stealing Porsche automobiles and either selling them intact or stripping them and selling their parts. From May 1985 until January 1986, he stole or attempted to steal at least four different Porsches. He was arrested and convicted of crimes relating to this activity in four separate prosecutions in the Circuit Court for Dade County, Florida. These cases were consolidated for sentencing, and he was sentenced to prison for seven years. He was released when these sentences expired in March 1988.

Far from being rehabilitated, Fuentes returned to stealing Porsches and, over time, increased his efforts to make a living running chop shops in South Florida. In August 1989, he stole a Porsche from a shopping center parking lot, brought it to a chop shop, stripped it, removed the VINs, and sold the parts. In June 1990, he chopped another Porsche stolen from the same location. His chop-shop operations hit stride in 1991. In February, he stole a Porsche from a residence and chopped it in a friend's shed. In March and April, he sold parts from three different Porsches to two friends. The VINs had been ground off, and further details about these three thefts are unknown. In the summer of 1991, he rented two warehouses from which to operate his illegal enterprise. During this time, he stole at least twelve Porsches from locations--frequently, but not exclusively, doctor's offices and hospitals--in Miami, Fort Lauderdale, and West Palm Beach. He brought the Porsches to one of the two warehouses and chopped them there. He stole one in June, one in July, four in August, three in September, one in October, and two on unknown dates.

Fuentes sold the stolen parts to bona fide purchasers and to co-conspirators who were aware the parts were stolen. He distributed flyers listing available parts to repair shops and parts stores in the Miami area. He also marketed the parts nationwide, advertising in the classified section of Hemmings Motor News. He included his beeper number in the flyers and advertisements.

At some point, both state and federal law enforcement officials became aware of Fuentes' activities. The Metro-Dade Police Department arrested him in August 1990 for the two thefts in 1989 and 1990, and they arrested him again in October 1991 for the February 1991 theft. ³ After each arrest, he was charged by information in the Circuit Court for Dade County, Florida. After Fuentes pled nolo contendre in both state cases, that court sentenced him on March 11, 1992, to a total term of imprisonment of twelve years.

On June 4, 1993, a grand jury for the Southern District of Florida indicted Fuentes for his chop shop activities. On April 29, 1994, it returned a superseding indictment, which is now before us. The indictment contained seven counts. Count one charged Fuentes with conspiracy, in violation of 18 U.S.C. § 371, to alter VINs in violation of 18 U.S.C. § 511(a) and to possess with intent to dispose of motor vehicles and parts with altered VINs in violation of 18 U.S.C. § 2321. ⁴ The grand jury alleged that this conspiracy lasted "[f]rom an unknown date until on or about October 21, 1991." Counts two through seven charged Fuentes with substantive violations: five counts under section 2321 and one count under section 511(a).

Fuentes entered into a written plea agreement and, on June 13, 1994, pleaded guilty to count one, the conspiracy count. The district court accepted the guilty plea and, pursuant to the plea agreement, dismissed the remaining six substantive counts of the indictment.

The court then directed its probation office to prepare a PSR. In describing the offense conduct underlying this conviction, the PSR accounted for all the stolen Porsches described above, except the three state Porsches. ⁵ On August 29, 1994, the court sentenced Fuentes to a term of imprisonment for sixty months (the maximum prison sentence authorized for the conspiracy offense), to run consecutively to the two undischarged state sentences, and three years of supervised release. The court also ordered Fuentes to make restitution in the amount of $357,281. After sentencing, Fuentes was returned to the custody of the State of Florida to serve the remainder of his undischarged state sentences.

Fuentes now appeals from his sentence claiming that under the sentencing guidelines his sentence should run concurrently to the undischarged state sentences and that the order of restitution was improper because the district court "found as fact that Fuentes is indigent and not capable of making restitution in the full amount." We agree and therefore vacate his sentence. We address the merits of his arguments in turn.

II.

Fuentes first claims that the district court erred in ordering that his sentence run consecutively to his undischarged state sentences. The Sentencing Reform Act of 1984 grants district courts discretion to order that a sentence run concurrently or consecutively to an undischarged term of imprisonment. See 18 U.S.C. § 3584(a) (1994). ⁶ In exercising this discretion, the court must consider the factors enumerated in 18 U.S.C. § 3553(a) (1994). 18 U.S.C. § 3584(b). These factors, which the court considers whenever imposing a sentence, include the sentencing guidelines. See 18 U.S.C. § 3553(a)(4)(A), (5). Pursuant to 28 U.S.C. § 994(a)(1)(D), the United States Sentencing Commission promulgated section 5G1.3 of the sentencing guidelines to guide a district court in determining whether a sentence should run concurrently or consecutively to an undischarged term of imprisonment. See United States Sentencing Commission, Guidelines Manual, § 5G1.3 (Nov. 1, 1993). ⁷

The district court's determination that Fuentes' sentence should run consecutively to his undischarged state sentences resulted from its application of this guideline to the facts. We therefore review this determination de novo. See United States v. Johnson, 87 F.3d 1257, 1258 (11th Cir.1996).

A.

Section 5G1.3 contains three different subsections. The first addresses sentencing for an offense committed while the defendant was serving the undischarged term of imprisonment; the second provides the rule for sentences not covered by the first subsection where "the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense"; and the third provides a policy framework for "any other case." ⁸ It is undisputed that Fuentes committed the instant offense before the undischarged state sentences were imposed, thus the first subsection clearly does not apply. Fuentes contends that the second subsection, section 5G1.3(b), controls the instant case, while the Government argues that this subsection does not apply and that the third subsection governs. ⁹

Section 5G1.3(b) dictates that a federal sentence run concurrently to an "undischarged term of imprisonment [that] resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense." According to the sentencing guidelines' commentary, this guideline applies when the undischarged term was imposed for "conduct taken into account in determining the guideline range for the instant offense." U.S.S.G. § 5G1.3, comment. (n.2) (Nov. 1, 1995).

To illustrate how this guideline is to be applied, the commentary provides the example of a defendant convicted for selling thirty grams of cocaine. Id. At the time of sentencing, the defendant in the example has served six months of a nine-month state sentence imposed for the sale of fifteen grams of cocaine. Id. In calculating the defendant's guideline range, the example posits that the fifteen grams of cocaine underlying the state...