U.S. v. Zuniga, 94-50416

Citation66 F.3d 225
Decision Date18 September 1995
Docket NumberNo. 94-50416,94-50416
Parties95 Cal. Daily Op. Serv. 7329, 95 Daily Journal D.A.R. 12,493 UNITED STATES of America, Plaintiff-Appellee, v. Hector ZUNIGA, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

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 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.

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

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 in purchasing a shipment of shorts in the possession of an individual named Chino. Zuniga offered to provide Chino with the UCA's pager number so they could negotiate a deal regarding the stolen load of shorts.

Zuniga also advised that upon his return from a brief visit to Mexico he would like to steal a load of electronics and bring them to the warehouse. Zuniga also indicated that he had travelled to the San Francisco area to assist another individual in stealing a load of merchandise, which was brought to the Los Angeles area. He stated that he was awaiting payment for that load and his associate was having difficulty finding a warehouse to store it.

PROCEDURAL BACKGROUND

On December 17, 1993, Zuniga and his codefendants were charged by a grand jury in two two-count indictments with one count of conspiracy to possess goods stolen from an interstate shipment, in violation of 18 U.S.C. Sec. 371, and possession of goods stolen from an interstate shipment, in violation of 18 U.S.C. Sec. 659. One of the indictments arose out of possession of the $77,000 worth of stolen airline travel kits. The other indictment arose out of the possession of the $115,000 worth of stolen wheel rims.

On March 15, 1994, Zuniga pleaded guilty to count one of each of the indictments. Count two of each of the indictments was dismissed upon the government's motion at the time of sentencing. The Presentence Report ("PSR") recommended, and the government concurred, that the offense level be enhanced four levels pursuant to section 2B1.1(b)(5)(B) for Zuniga being in the business of receiving and selling stolen property.

The district court determined that Zuniga was in the business of receiving stolen goods and applied a four-offense level enhancement pursuant to section 2B1.1(b)(5)(B) of the 1993 Sentencing Guidelines. The enhanced offense level was then reduced by three levels for acceptance of responsibility under section 3E1.1, resulting in a total offense level of 14. When combined with Zuniga's criminal history category of IV, the resulting sentencing range was 27 to 33 months. The district court sentenced Zuniga to 30 months imprisonment on both counts to which he pleaded guilty, with the sentences to be served concurrently, followed by a three-year term of supervised release.

STANDARD OF REVIEW

The district court's interpretation or application of the Sentencing Guidelines is reviewed de novo. United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 (9th Cir.1994). For example, whether a defendant's prior conviction falls within the scope of the Sentencing Guidelines is reviewed de novo.

United States v. Robinson, 967 F.2d 287, 292 (9th Cir.1992).

The district court's factual findings in the sentencing phase are reviewed for clear error. Buenrostro-Torres, 24 F.3d at 1174; see also United States v. Pinkney, 15 F.3d 825, 827 (9th Cir.1994) (finding that defendant was not a minor participant is reviewed under clearly erroneous standard). Circumstances justifying an increase from the base offense level must be proven by a preponderance of the evidence. United States v. Wilson, 900 F.2d 1350, 1354 (9th Cir.1990).

DISCUSSION

Section 2B1.1(b)(5)(B) provides: "If the offense involved receiving stolen property, and the defendant was a person in the business of receiving and selling stolen property, increase by 4 levels." U.S.S.G. Sec. 2B1.1(b)(5)(B) (1993).

A. Appropriate Standard of Review

As a threshold matter, the parties dispute the appropriate standard of review for the district court's determination that section 2B1.1(b)(5)(B) applied to Zuniga's offense. Zuniga contends that the decision to enhance his sentence under section 2B1.1(b)(5)(B) was purely a legal determination to be reviewed de novo. The government views the district court's decision as following directly from the resolution of a factual dispute and, therefore, to be reviewed under a clearly erroneous standard.

We will apply a de novo standard of review. At a minimum, the determination by the district court that Zuniga was "in the business of receiving and selling stolen property" requires determinations of both of law and fact. Zuniga is not challenging the fact or substance of the conduct relied on by the district court to trigger the enhancement. Rather, he questions, essentially, the sufficiency of the conduct relied on by the district court to support the conclusion that he was "in the business of receiving or selling stolen property."

B. Section 2B1.1(b)(5)(B) Enhancement

This Circuit has not yet considered the proper application of the section 2B1.1(b)(5)(B) enhancement; formerly, section 2B1.2(b)(4)(A). The Background information provides:

The treatment accorded receiving stolen property parallels that...

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