919 F.2d 957 (5th Cir. 1990), 90-5542, United States v. Esquivel

Docket Nº:90-5542.
Citation:919 F.2d 957
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jesse ESQUIVEL, Defendant-Appellant.
Case Date:December 12, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 957

919 F.2d 957 (5th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jesse ESQUIVEL, Defendant-Appellant.

No. 90-5542.

United States Court of Appeals, Fifth Circuit

December 12, 1990

Page 958

John M. Pinckney, III, Matthews & Branscomb, San Antonio, Tex., for defendant-appellant.

Joan E.T. Sterns, LeRoy M. Jahn, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD and WIENER, Circuit Judges, and VELA 1, District Judge.

GARWOOD, Circuit Judge:

Defendant-appellant Jesse Esquivel (Esquivel) pleaded guilty to possession of chattels stolen from foreign commerce, a violation of 18 U.S.C. Sec. 659, and was sentenced in accordance with former sentencing guideline section 2B1.2 2 to twenty-one months' confinement, three years' supervised release, and payment of a fine, special assessment, and restitution. This guideline provides for a four-point offense level enhancement where "the offense was committed by a person in the business of receiving and selling stolen property." U.S.S.G. Sec. 2B1.2(b)(3)(A). On appeal, Esquivel challenges only the district court's application of this section to enhance his guideline offense level, contending that, because

Page 959

there concededly was no evidence he had previously engaged in "fencing" of stolen property other than that he was charged for having possessed, he therefore was not "in the business of" receiving and selling stolen property as required by former section 2B1.2(b)(3)(A).

Facts and Proceedings Below

On or about January 11, 1989, Esquivel was approached by Elistino Rodriguez (Rodriguez) and Augustine Zuliaca (Zuliaca) about purchasing an order of Kaepa athletic shoes. The men had stolen 1,013 cases of the shoes a few days earlier from a freight storage yard in San Antonio, Texas. Esquivel knew that the shoes had been stolen. Esquivel acquiesced, and moved 350 cases of the shoes from Zuliaca's garage into a warehouse which Esquivel leased and controlled. Esquivel sold the shoes on consignment to various parties for $15 per pair, keeping $5 per pair for himself and paying the remainder to Rodriguez.

Esquivel was assisted in the resale of the shoes by his cousin David Vasquez (Vasquez). Esquivel would contact Vasquez through a pager, giving him information regarding the customer, date, and quantity for purposes of making deliveries. Esquivel personally sold fifty to sixty pairs of the shoes. No evidence was ever presented that Esquivel had acted as a fence prior to the initiation of his shoe-selling business. Esquivel normally ran a back-hoe business, from which he derived an annual income of $20,000 to $30,000.

Esquivel pleaded guilty to possession of chattels stolen from foreign commerce, a violation of 18 U.S.C. Sec. 659. On March 15, 1990, the district court sentenced him in accordance with former sentencing guideline section 2B1.2, which is the guideline applicable to section 659. The base offense level for this sentencing guideline is four. The district court added six points for a loss in excess of $20,000 but less than $40,001, added two more points for role in the offense, and subtracted two points for acceptance of responsibility. The district court's four-level increase of Esquivel's offense level in accordance with former section 2B1.2(b)(3)(A)...

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