U.S. v. Saunders, No. 01-17032.

• Decision Date: 23 January 2003
• Docket Number: No. 01-17032.
• Citation: 318 F.3d 1257
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sharon SAUNDERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

318 F.3d 1257

UNITED STATES of America, Plaintiff-Appellee, v. Sharon SAUNDERS, Defendant-Appellant.

No. 01-17032.

United States Court of Appeals, Eleventh Circuit.

January 23, 2003.

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Randolph P. Murrell, Gwendolyn L. Spivey, Fed. Pub. Defenders, Tallahassee, FL, for Defendant-Appellant.

Francis Todd Williams, Tallahassee, FL, Pamela A. Moine, Asst. U.S. Atty., Pensacola, FL, for Plaintiff-Appellee.

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

Before BIRCH and BLACK, Circuit Judges, and PROPST^*, District Judge.

BIRCH, Circuit Judge:

In this appeal, we determine the appropriate test for applying an enhancement under the United States Sentencing Guideline ("U.S.S.G.") § 2B6.1 for being "in the business of receiving and selling stolen property." We also decide whether the enhancement applies to a thief's wife who: (1) submitted fraudulent paperwork to register at least twenty vehicles stolen by her husband over a ten-year period; (2) conveyed title to, and accompanied her husband in delivering, the vehicles to buyers; (3) permitted some of the vehicles to be kept on her property; and (4) drove at least one of the stolen vehicles. The sentencing court applied the enhancement. Because we find that the defendant both received and sold stolen property with regularity and sophistication, we AFFIRM.

I. BACKGROUND

Sharon Saunders, the wife of Terence James Saunders,¹ pled guilty to one count of possessing with intent to sell motor vehicles with altered vehicle identification numbers, in violation of 18 U.S.C. § 2321(a). She now appeals her eighteen-month sentence pursuant to 18 U.S.C. § 3742(a)(2) on the ground that the district court incorrectly applied the enhancement under U.S.S.G. § 2B6.1(b)(2) for being in the business of receiving and selling stolen property ("in the business enhancement").

Over a span of ten years, Sharon's husband stole more than seventy vehicles. Together they altered their production dates to make them ten years or older, which allowed them to be registered without any title documentation. They would then change the identification numbers of, obtain State of Georgia registrations for, and sell the vehicles to unsuspecting third parties or keep them for personal use. Sharon's specific role was to assist in applying for and obtaining documents for the vehicles in three Georgia counties, knowing they were stolen and had altered and fraudulent identification numbers. She was driving one of the stolen vehicles, which was licensed in her name, just before her arrest and she permitted some stolen vehicles to be kept on her property. Her signature was found on the bills of sale for at least twenty-seven vehicles and she accompanied her husband in transporting some of them for delivery to their purchasers.

The probation officer recommended the enhancement. At the sentencing hearing, Sharon objected, arguing that she had been a homemaker and financially dependent on her husband. In overruling her objections, the district court determined that:

[Sharon] was in the business; and, under [either] conspiracy theory, Pinkerton theory, aiding and abetting theory, co-conspirator theory, [or] actual possession and constructive possession theory, she possessed one or more of these trailers and was in the business of selling them after they had been stolen by her husband. She was an integral part of that procedure. Without her, a direct number of these would not have gone through.

R5-9-10. The court sentenced Sharon to eighteen months of incarceration, noting that the sentence would have been at the high end of the guidelines range had the two-level enhancement not been applied.² Sharon timely appealed, arguing that the district court used the wrong standard for applying the enhancement and that, even had the correct standard been applied, the evidence would have been insufficient to prove that Sharon had received the vehicles or that she was in the business of fencing stolen property.³

II. DISCUSSION

Section 2B6.1(b)(2) of the Guidelines, applicable to convictions under 18 U.S.C. § 2321(a), provides a two-level enhancement to the base offense level, imposed for altering or removing motor vehicle identification numbers, or trafficking in motor vehicles or parts with altered or obliterated identification numbers, "[i]f the defendant was in the business of receiving and selling stolen property." U.S.S.G. § 2B6.1(b)(2) (2001).⁴ The Commentary provides no clarification of the enhancement or definition for being "in the business."⁵ See U.S.S.G. § 2B6.1, comment. We, also, have not particularized the appropriate test for applying the enhancement.

Initially, we must determine whether the district court used an incorrect standard, as Sharon argues, when it concluded that she was an "integral part" of her husband's illegal operation and necessary for its success. She contends that the correct standard is whether she personally participated in the scheme in a manner sufficient to trigger application of the enhancement. We agree. In United States v. Maung, 267 F.3d 1113 (11th Cir.2001), our first review of the enhancement, we said that "[t]he plain meaning of guideline § 2B6.1(b)(2) is that the defendant himself, and not just his co-conspirator, must have received and sold stolen property." Id. at 1119. Contrasting the enhancement to a neighboring provision, § 2B6.1(b)(3), which referred only to the offense involved, we concluded that "the (b)(2) enhancement is focused upon the defendant's own activities, in contrast to the (b)(3) enhancement's focus on the offense." Id. However, the probation officer here referenced the correct standard and the court adopted the PSR in its entirety. Also, Maung was discussed in detail at the 8 November 2001 sentencing hearing and, although the court's language may have been inartful and somewhat imprecise, we nonetheless find that the sentence was based on Sharon's personal involvement in the illegal activity and that, therefore, the court did not employ an incorrect standard.

Sharon next argues that, even if the court did not use an incorrect standard, it erroneously applied the standard to the facts of her case. "When a defendant challenges the district court's application of the sentencing guidelines, we review the district court's underlying findings of fact for clear error and application of the guidelines to those facts de novo." Id. at 1118. We have never before had an opportunity to fully develop the appropriate test for applying the enhancement. We do so now.⁶

[T]he circuits have split on the proper test for determining whether a defendant, who was not the actual thief,⁷ was "in the business" or not [under a similar enhancement in § 2B1.1]. Two tests have emerged. The "fence" test, adopted by the Fifth, Sixth, and Seventh Circuits, requires proof that the defendant was a person who bought and sold stolen property, and thereby encouraged others to commit property crimes. The "totality of the circumstances" test, embraced by the First, Third, and Ninth Circuits, and perhaps by the Second Circuit, employs a "case by case approach with emphasis on the `regularity and sophistication of a defendant's [criminal] operation.'"

Maung, 267 F.3d at 1118 (citations omitted).

Effective 1 November 2001, the Sentencing Commission resolved the circuit split and revised the commentary to § 2B1.1, a guideline addressing "basic forms of property offenses." U.S.S.G. Ch.2, Pt. B.1 intro. comment. In doing so, the Commission "clarif[ied] the meaning of `person in the business of receiving and selling stolen property'" and adopted the totality of the circumstances approach.⁸ U.S.S.G.App. C, Amend. 617 at 182 (2001). No such clarification exists for § 2B6.1(b)(2). Thus, as a preliminary matter, we must decide whether the Sentencing Commission intended to extend the meaning it attributed to the enhancement under § 2B1.1(b)(4) to that under § 2B6.1(b)(2).

"[W]here the guidelines provide no indication as to a particular application the Court looks to the language and purpose of the Sentencing Guidelines for instruction." United States v. Pompey, 17 F.3d 351, 354 (11th Cir.1994). Although definitions that appear in one section of the guidelines "are not designed for general applicability," we may also look "on a case by case basis" to similar words, phrases or terms used in other sections for help with interpretation. U.S.S.G. § 1B1.1, comment. (n. 2); accord United States v. Harris, 237 F.3d 585, 588-89 (6th Cir.2001). See also United States v. Honken, 184 F.3d 961, 969 (8th Cir.1999) ("It should generally be presumed that the same word used in different parts of the guidelines has the same meaning."); United States v. Poff, 926 F.2d 588, 591 (7th Cir.1991) (en banc) ("The Guidelines should be read as a whole and when the same word appears in different, though related sections, that word likely bears the same meaning in both instances.") (citation omitted).

Here, however, the clarifying words are not used the same in the two different sections. In fact, the Sentencing Commission amended § 2B1.1 with language clarifying the enhancement but did not similarly amend § 2B6.1, even though its language and structure are virtually identical and the underlying offenses conceptually similar. "`[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.'" Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972) (per curiam)); accord Burton v. Tampa Hous. Auth., 271 F.3d 1274, 1279 (11th Cir.2001). Because the interpretation of the sentencing guidelines is governed by traditional rules of statutory...