U.S. v. Vickers

• Decision Date: 20 June 2008
• Docket Number: No. 07-2184.,07-2184.
• Citation: 528 F.3d 1116
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian VICKERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

528 F.3d 1116

UNITED STATES of America, Plaintiff-Appellee, v. Brian VICKERS, Defendant-Appellant.

No. 07-2184.

United States Court of Appeals, Eighth Circuit.

Submitted: December 10, 2007.

Filed: June 20, 2008.

Beau Gavin Finley, argued, Omaha, NE, for appellant.

Russell X. Mayer, AUSA, argued, Joe W. Stecher, on the brief, Omaha, NE, for appellee.

Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.

LOKEN, Chief Judge.

Brian Vickers appeals his conviction and sentence for four counts of knowing possession and interstate transportation of stolen property in violation of 18 U.S.C. §§ 2314 and 2315, and for conspiracy to possess and transport stolen items across state lines. Vickers contends that the evidence was insufficient and that the district court¹ erred in imposing two-level sentencing enhancements for being in the business of receiving and selling stolen property and for obstruction of justice. We affirm.

I. Sufficiency of the Evidence

At trial, the government's first witness was Investigator Eugene True of the Nebraska State Patrol's auto fraud division, who described his investigation. Zach Bryant, Vickers's friend and former coworker, told a Nebraska state patrolman that Vickers was dealing in stolen tractors and trailers. True visited Vickers's residence in Elmwood, Nebraska, to engage in a "knock and talk" interview. Vickers's mother, who lived with her son, gave True permission to search the premises. After determining that thirteen other tractors were not stolen, True examined a Talbert flatbed trailer that Bryant had reported as possibly stolen. True observed that the vehicle identification number ("VIN") plate was attached with barn screws, suggesting the original VIN plate had been removed, and he found grind marks on the underside of the trailer where the secondary VIN number should have been located.

Contacted by phone, Vickers explained that he had purchased the trailer from Bryant for $7,500 and obtained a replacement VIN plate from its manufacturer. At the Department of Motor Vehicles, True learned that Vickers misidentified the model year and submitted a bill of sale stating that Bryant had traded the trailer to Vickers in exchange for a John Deere tractor. Confronted with the bill of sale, Bryant denied ever owning the trailer and said his signature on the bill of sale was forged. True fitted Bryant with a wireless transmitting device, and Bryant met Vickers at a Wendy's restaurant. Vickers made incriminating statements, instructed Bryant to "stick with the story" that he had sold Vickers the trailer, and offered Bryant a John Deere tractor or "a couple thousand bucks" for his trouble. The tape of this conversation was played for the jury later in the trial. True located the owner of the Talbert trailer in south central Illinois, where it had been reported stolen.

After Vickers was arrested on Nebraska state charges, True continued his investigation. In an interview with Jeremy Bailiff, a Vickers acquaintance, True learned that Bailiff had obtained a riding lawn mower and an all-terrain vehicle ("ATV") from Vickers. True determined from a law enforcement database that both were stolen in south central Illinois. During another interview, neighbor Marion Wenzel informed True that Wenzel had obtained a John Deere skid loader and a John Deere lawn mower from Vickers. True inspected this equipment. The primary product identification number ("PIN") on the skid loader was missing, but he found a concealed secondary PIN. The PIN on the lawn mower was scratched beyond recognition. A database analysis revealed that all five pieces of equipment — trailer, skid loader, two lawn mowers, and the ATV — were reported stolen within a thirty-mile radius in south central Illinois. Vickers's ex-girlfriend, Jennifer Henson, told True that she had traveled with Vickers to Kinmundy, Illinois, to pick up a trailer from Rodney Armstrong, a business partner. Henson's description of the trailer matched the stolen Talbert trailer True found on Vickers's property. Henson said that when she confronted Vickers with her suspicion that the trailer was stolen, he said she "would go down with him" if she told the authorities.

Testimony by Bryant, Bailiff, Wenzel, and Henson supported True's testimony, and the government presented additional evidence that Vickers had possessed and transported stolen equipment. In his defense, Vickers testified he had no knowledge any of the property was stolen and reasonably relied on assurances by his long-time business partner Armstrong that the property was not illegally obtained. He claimed that most of the government witnesses lied at trial. The jury convicted Vickers on the five counts charged: knowingly transporting, receiving, and possessing the stolen Talbert trailer and the stolen John Deere skid loader, and conspiring to transport, receive, and possess stolen goods in interstate commerce.

In challenging the sufficiency of the evidence, Vickers contends that the jury did not adequately evaluate the credibility of the trial witnesses. He notes that Henson and Bailiff admitted lying to True during the investigation. Henson initially implicated Vickers, then recanted during an interview with True and an Assistant United States Attorney, and then again implicated Vickers when True threatened her with state charges. Bailiff initially lied about possessing the stolen ATV and where he had obtained it, then avoided federal and state charges by agreeing to testify against Vickers. Vickers suggests that Bryant suffered from lapses of memory and that a careful parsing of the tape of his conversation with Bryant at the Wendy's restaurant demonstrates that seemingly incriminating statements were in fact consistent with his claim of innocence.

In considering sufficiency, we review the evidence in the light most favorable to the jury's verdict, giving the government the benefit of all reasonable inferences and upholding the conviction unless no reasonable jury could have found the defendant guilty. United States v. Marquez, 462 F.3d 826, 828 (8th Cir. 2006) (quotations omitted). As credibility determinations are for the jury, they are "virtually unassailable on appeal." United States v. Alama, 486 F.3d 1062, 1065 (8th Cir.2007). On numerous occasions we have upheld jury verdicts based solely on the testimony of cooperating witnesses. See, e.g., United States v. Velazquez, 410 F.3d 1011, 1015-16 (8th Cir.), cert. denied, 546 U.S. 971, 126 S.Ct. 504, 163 L.Ed.2d 382 (2005). Here, the government also presented substantial physical and documentary evidence linking Vickers to the transportation and possession of stolen equipment. The evidence was more than sufficient for a reasonable jury to convict Vickers of all five charges.

II. Sentencing Issues

On appeal, Vickers argues that the district court committed two errors in determining his advisory guidelines sentencing range. Under the current advisory guidelines regime, the district court "should begin all sentencing proceedings by correctly calculating the applicable Guidelines range," because that determination provides an "initial benchmark" that helps "secure nationwide consistency." Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). On appeal, our first task is to "ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range." Id. at 597, 128 S.Ct. 586. A non-harmless error in calculating the guidelines range requires a remand for resentencing. United States v. Weems, 517 F.3d 1027, 1030 (8th Cir.2008). Absent reversible procedural error, we then review the reasonableness of the court's sentence for abuse of discretion. Gall, 128 S.Ct. at 597. Here, after determining the advisory guidelines range, the district court imposed a sentence of twenty-one months in prison, the bottom of that range. Vickers does not raise a separate reasonableness issue.

1. Vickers first argues that the district court erred in determining he was "a person in the business of receiving and selling stolen property" and imposing the two-level enhancement in U.S.S.G. § 2B1.1(b)(4). After the Guidelines became advisory in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we concluded that Booker did not change our procedure for reviewing challenges to the district court's interpretation and application of the Guidelines. Though the Supreme Court in Gall described this as part of our review for "significant procedural error," we find nothing in Gall requiring a change in our manner of review. Therefore, we continue to review the court's factual findings for clear error and its interpretation of the Guidelines de novo. United States v. Mashek, 406 F.3d 1012, 1016-17 (8th Cir.2005). Here, Vickers concedes (perhaps ill-advisedly) that we review the district court's finding that he was in the business of receiving and selling stolen property for clear error.

For many years, several of our sister circuits debated which of two tests to apply in defining the "business of receiving and selling stolen property" for purposes of this enhancement, a debate our court managed to avoid. See United States v. Maung, 267 F.3d 1113, 1117-19 (11th Cir. 2001) (collecting cases); United States v. Collins, 104 F.3d 143, 144 (8th Cir.1997). In a Guidelines amendment effective November 1, 2001, the Sentencing Commission resolved this conflict by adopting application note 5 to U.S.S.G. § 2B1.1, which provides:

For purposes of subsection (b)(4), the court shall consider the following non-exhaustive list of factors in determining whether the defendant was in the business of receiving and selling stolen property:

(A) The regularity and sophistication of the defendant's activities.

(B) The value and size of the inventory of stolen property maintained by the defendant.

(C) The extent to which the defendant's activities...