77 F.3d 91 (5th Cir. 1996), 95-40184, United States v. Sutton
|Citation:||77 F.3d 91|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Timothy Lee SUTTON, Defendant-Appellant.|
|Case Date:||February 16, 1996|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Randall Lynn Fluke, Assistant U.S. Attorney, Sherman, TX, for plaintiff-appellee.
Ronald Wayne Uselton, Sherman, TX, for defendant-appellant.
Appeal from the United States District Court For the Eastern District of Texas.
Before DeMOSS and DENNIS, Circuit Judges, and DUPLANTIER, 1 District Judge.
DeMOSS, Circuit Judge:
Defendant Timothy Lee Sutton appeals the application of the sentencing guidelines to his conviction for conspiracy to sell stolen vehicles. Sutton appeals (1) the district court's enhancement of his base offense level because he was "in the business of receiving and selling stolen property" and (2) the method the district court used in calculating the amount of the loss.
Sutton ran Elite Car Sales, a used car dealership, out of his mother's home, where he lived. From September 1993 until February 1994, Sutton and two other individuals 2 engaged in a conspiracy to transport and sell stolen vehicles. Sutton sold at least ten stolen cars and trucks.
Sutton acted as the middleman in the conspiracy, taking orders for particular vehicles, contacting people to steal them, and then delivering the stolen vehicles to the buyers. During the five months of the conspiracy, Sutton made $10,800 from his illegal activities, while he earned only $330 per month from his legitimate car business.
Sutton was charged in a one count information with Conspiracy to Transport and Sell Stolen Vehicles in Interstate Commerce (18 U.S.C. § 2312) and Conspiracy to Sell or
Receive Stolen Vehicles (18 U.S.C. § 2313). Sutton entered into a plea agreement with the government in which he agreed to plead guilty to the charge and assist the FBI in its investigation.
The Presentence Report ("PSR") recommended, and the government sought and received, a four point increase in Sutton's base offense level under U.S.S.G. § 2B1.1(b)(5)(B), because Sutton was "in the business of receiving and selling stolen property." Because the loss was between $120,000 and $200,000, 3 his base offense level of four was increased nine points. The government filed a motion for downward departure under U.S.S.G. § 5K1.1, which was granted, reducing Sutton's total offense level from 17 to 13. His criminal history category was I, so the guideline range after the downward departure was 12 to 18 months. Sutton was sentenced to 12 months imprisonment, three years supervised release and restitution of $46,560.65. Sutton filed a timely notice of appeal.
STANDARDS OF REVIEW
We review the district court's factual findings for clear error. United States v. Washington, 44 F.3d 1271, 1280 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2011, 131 L.Ed.2d 1010 (1995). "The district court may base the findings underlying its sentence on facts in the record that have been proven by a preponderance of the evidence." United States v. Mackay, 33 F.3d 489, 496 (5th Cir.1994). The district court's application of the guidelines to the findings is reviewed de novo. United States v. Gaitan, 954 F.2d 1005, 1008 (5th Cir.1992).
The "In the Business" Enhancement
Sutton argues that the district court erred in finding that he was "in the business of receiving and selling stolen property," thus raising his base offense level pursuant to U.S.S.G. § 2B1.1(b)(5)(B). 4 Sutton contends that this section is intended to enhance the punishment of "professional fences whose lifetime vocation...
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