66 F.3d 225 (9th Cir. 1995), 94-50416, United States v. Zuniga

Docket Nº:94-50416.
Citation:66 F.3d 225
Party Name:D.A.R. 12,493 UNITED STATES of America, Plaintiff-Appellee, v. Hector ZUNIGA, Defendant-Appellant.
Case Date:September 18, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 225

66 F.3d 225 (9th Cir. 1995)

D.A.R. 12,493

UNITED STATES of America, Plaintiff-Appellee,

v.

Hector ZUNIGA, Defendant-Appellant.

No. 94-50416.

United States Court of Appeals, Ninth Circuit

September 18, 1995

        Argued and Submitted May 12, 1995.

Page 226

        Myra Sun and Monica Knox, Deputy Federal Public Defenders, Los Angeles, CA, for defendant-appellant.

        Edward B. Moreton, Jr., Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee.

        Appeal from the United States District Court for the Central District of California.

        Before: HALL and LEAVY, Circuit Judges, and HOGAN, [*] District Judge.

        HOGAN, Chief District Judge:

        Hector Zuniga appeals a 30 month prison sentence imposed following his guilty plea to conspiracy to possess stolen goods from interstate shipment in violation of 18 U.S.C. Sec. 371. He charges that the district court erred when it applied section 2B1.1(b)(5)(B) of the Sentencing Guidelines to increase his offense level for being "in the business of receiving and selling stolen property."

        FACTUAL BACKGROUND

        Pursuant to an ongoing investigation of thefts of goods from rail yards and trucking companies around the Los Angeles area, the FBI set up an undercover warehouse available to persons trafficking in stolen goods. The warehouse was equipped with audio and video recording devices. An undercover FBI special agent ("UCA") ostensibly ran the warehouse.

        On April 19, 1992, the UCA received a telephone call from a man named "Juan". Juan told the UCA that he needed the warehouse to store a stolen load of merchandise and he gave Zuniga's pager number to the UCA. Later that same day, Zuniga paged the UCA. When the UCA returned the page, Zuniga asked the UCA to store a load of goods he was planning to steal.

        On the same day, Zuniga and codefendant Fernando Santos Ramirez stole a tractor and trailer containing 254 cases of American Airlines travel kits. The travel kits were worth $77,000.

        Shortly after midnight the next day, April 20, 1992, Zuniga and other unidentified men arrived at the warehouse with the stolen travel kits. Later that day, Zuniga came back to the warehouse with Ramirez and negotiated the sale of the travel kits to the UCA for $5,000. Zuniga told the UCA that five individuals had been involved in stealing the travel kits and that they each would receive $1,000. At that time, Zuniga also told the UCA that Juan owed him $15,000 for a load of female denim jumpsuits. He stated

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that Juan paid him $35,000 for the jumpsuits and an individual known as Pena arranged the deal.

        On July 30, 1992, the UCA returned a page to Zuniga who advised him that he had three loads of stolen goods, two loads of women's hair spray and one load of automobile rims, that he wanted to store at the undercover warehouse. Zuniga also told the UCA he would be involved in the theft of additional loads that evening and would be receiving a stolen shipment of video cassette recorders. In addition, Zuniga stated that a stolen load of Bugle Boy clothing had been sold recently in Mexico.

        Early on July 31, 1992, the UCA returned a page from Juan who told the UCA he had the stolen wheel rims, that were to be stored at the warehouse, parked out on the street. A few hours later, Zuniga arrived at the warehouse. At the same time codefendants Martin Hernandez, Sustroberto Santamaria and Santiago Arias arrived with the stolen tractor and trailer containing the wheel rims, valued at approximately $115,000.

        After the wheel rims were unloaded, Zuniga loaded several of the rims into his truck. He instructed two of the codefendants to drive the tractor and trailer far from the warehouse and abandon it. Zuniga also instructed Juan to follow the men and pick them up. A few days later, Zuniga and the UCA negotiated a $25,000 sales price for the wheel rims.

        Later that same evening, Zuniga met the UCA at the warehouse. He asked the UCA if he was interested...

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