977 F.2d 698 (1st Cir. 1992), 92-1639, United States v. St. Cyr

Docket Nº:92-1639.
Citation:977 F.2d 698
Party Name:UNITED STATES of America, Appellee, v. John L. ST. CYR, Defendant, Appellant.
Case Date:October 15, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 698

977 F.2d 698 (1st Cir. 1992)

UNITED STATES of America, Appellee,

v.

John L. ST. CYR, Defendant, Appellant.

No. 92-1639.

United States Court of Appeals, First Circuit

October 15, 1992

Heard Sept. 10, 1992.

Page 699

[Copyrighted Material Omitted]

Page 700

Jeffrey D. Clements, with whom Jensen Baird Gardner & Henry, Portland, Me., was on brief, for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Jonathan R. Chapman, Asst. U.S. Atty., Portland, Me., were on brief, for appellee.

Before SELYA, Circuit Judge, ALDRICH, Senior Circuit Judge, and BOYLE, [*] District Judge.

SELYA, Circuit Judge.

After twice visiting a famed New England clothier and successfully exchanging stolen sweaters for cash, defendant-appellant John L. St. Cyr botched his third attempt. Confronted with the irrefragable threads of his criminality, St. Cyr pled guilty to two counts of possessing stolen property (each count representing a successful exchange). Although the two offenses occurred only four months apart, the federal sentencing guidelines intervened. 1 Appellant received a pre-guidelines sentence on the first count (two years) and a concurrent guideline-driven sentence on the second count (fourteen months). He will be eligible for parole on the two-year sentence after approximately eight months. No parole is possible on the other sentence.

St. Cyr appeals the lower court's judgment in its entirety. We affirm with respect to the first count. However, after studying the district court's construction of U.S.S.G. § 2B1.2(b)(4)(A), a guideline never before interpreted by this court, we vacate the sentence imposed on the second count and remand for resentencing on that count. The yarn follows.

I. FACTS

In late 1986, thieves snatched a trailer load of pre-labelled sweaters and dresses bound for two retail clothing stores. The trailer soon reappeared in Methuen, Massachusetts. By then, it was under the apparent control of Thomas Flaherty. Flaherty sold most of the loot to Francis McKay, the proprietor of A & M Auto Wholesalers, Lawrence, Massachusetts (and, in that capacity, St. Cyr's employer).

In time, appellant bought twenty-two stolen sweaters from McKay. 2 He divided the sweaters into three roughly equal groups and "returned" them to an affected retailer, L.L. Bean Co., requesting that Bean "refund" the retail price. Appellant received $399.20 in refunds for the first two batches of sweaters. On his third attempt, a store employee refused to give him cash and asked him for a mailing address. Police traced the address and confronted St. Cyr. He confessed.

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II. THE SENTENCE ON COUNT I

In what amounts to a passing reference, St. Cyr suggests that his sentence on count I was "plainly unreasonable" and should be vacated. We refuse to give this point substantive consideration for two reasons. First, Congress created appellate jurisdiction with respect to "plainly unreasonable" criminal sentences on December 7, 1987, and made the grant of jurisdiction applicable only to criminal acts committed after that date. See Sentencing Act of 1987, Pub.L. No. 100-182, § 26, 101 Stat. 1266, 1272 (1987), codified at 18 U.S.C. § 3742(a)(4) (1988). Count I targets St. Cyr's first trip to L.L. Bean. That trip took place in October of 1987. Hence, section 3742(a)(4) does not avail him here.

Second, appellant has offered no meaningful rationale as to why the sentence imposed on count I was unreasonable or otherwise defective. It is settled in this circuit that "issues adverted to on appeal in a perfunctory manner, unaccompanied by some developed argumentation, are deemed to have been abandoned." Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir.1990); accord United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990). That principle is fully apposite here.

III. THE SENTENCE ON COUNT II

With reference to count II, the base offense level (BOL) applicable to the offense of conviction was four. See U.S.S.G. § 2B1.2(a). The district court elevated the BOL by one level because the value of the twenty-two sweaters was $572.70. See U.S.S.G. §§ 2B1.1(b)(1)(B), 2B1.2(b)(1) (directing a one-level increase for goods worth more than $100 but less than $1000). The court added four more levels because St. Cyr was "in the business of receiving and selling stolen property...." U.S.S.G. § 2B1.2(b)(4)(A). The court explained that it utilized the four-level enhancement because it "infer[red] that from [St. Cyr's] willingness and [the] easy manner in which he came into participation in this [affair] ... he was a person predisposed in buying and selling stolen property." Finally, the court made two offsetting adjustments. It went up two levels for obstruction of justice, see U.S.S.G. § 3C1.1, and down two levels for role in the offense. See U.S.S.G. § 3B1.2(b) (adjustment for minor participation).

Given St. Cyr's checkered past, these calculations resulted in a guideline range of 8-14 months. See U.S.S.G. Ch. 5, Pt. A (sentencing table) (offense level 9; criminal history category III). The judge imposed the maximum authorized sentence within the range. On appeal, St. Cyr challenges the four-level enhancement for being "in the business of receiving and selling stolen property" and the two-level enhancement for obstruction of justice.

  1. Standard of Review.

    Appellate review of a district court's application of the sentencing guidelines is ordinarily a dichotomous process. First, the court of appeals determines de novo the reach of the relevant guideline to ascertain whether it applies in a given case. See, e.g., United States v. Tardiff, 969 F.2d 1283, 1289 (1st Cir.1992); United States v. Connell, 960 F.2d 191, 197 (1st Cir.1992). Once the court of appeals has defined the guideline's meaning and scope, it reviews the sentencing court's factfinding only for clear error. See United States v. David, 940 F.2d 722, 739 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2301, 119 L.Ed.2d 224 (1992); see also 18 U.S.C. § 3742(e) (1988). Accordingly, we cede no deference to the district court's legal conclusion that a defendant's inferred predisposition toward fencing activities brings him within the ambit of section 2B1.2(b)(4)(A). 3

    Page 702

  2. The Four-Level Enhancement.

    1. The "Fencing Business" Requirement. The master guideline for "receiving, transporting, transferring, transmitting, or possessing stolen property," U.S.S.G. § 2B1.2 (excess capitalization omitted), starts at a BOL of four. The guideline directs the district court to increase the offense level in a variety of circumstances. Section 2B1.2(b)(4)(A) limns one such circumstance, mandating a four-level increase if "the offense was committed by a person in the business of receiving and selling stolen property...." The Sentencing Commission explains this enhancement-which we shall call the "in-the-business" or "ITB" enhancement--on the basis that, when persons receive stolen property for resale, "the amount of property is likely to underrepresent the scope of their criminality and the extent to which they encourage or facilitate other crimes." U.S.S.G. § 2B1.2, comment. (backg'd). As with any other upward adjustment under the sentencing guidelines, the government bears the burden of establishing that the ITB enhancement applies in a given case. See, e.g., United States v. Sklar, 920 F.2d 107, 110 (1st Cir.1990); United States v. Unger, 915 F.2d 759, 761 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1005, 112 L.Ed.2d 1088 (1991).

    There is a dearth of authority concerning the scope of section 2B1.2(b)(4)(A) and the guidelines are silent on the meaning of the pivotal phrase: "in the business of...." We have never spoken to section 2B1.2(b)(4)(A). Courts outside our circuit have dealt with the provision sparingly.

    The government urges that we need not look beyond the background commentary, quoted supra p. 702, to resolve the essential meaning of the section 2B1.2(b)(4)(A). The commentary's motivating purpose is apparent. An underworld business causes greater community blight than an intermittently criminal individual. Nonetheless, the commentary leaves more specific issues unresolved; taken literally, it proves too much. For one thing, facilitation of other crime and underrepresentation of criminal activity are probably present whenever stolen property is bought or sold. Like any market, the black market's efficiency is generally proportional to the number of buyers and sellers that enter it. Thus, even purchasers of stolen goods who never sell and sellers of stolen goods who never purchase can strengthen the black market and thereby facilitate other crime.

    For another thing, individuals convicted of any crime--not just those who deal in stolen property--are often presumed to have committed or supported other, non-charged, offenses. Indeed, this presumption is thought to be so strong that Fed.R.Evid. 404(b) prohibits the introduction into evidence of a defendant's prior acts to show his criminal predisposition. It is almost always possible to argue that the conduct for which a defendant has been convicted is likely to underrepresent his entire criminal career or his contribution to a general subculture of criminality. There is no sound basis on which trafficking in stolen property, per se, can be singled out in this respect.

    Finally, and perhaps most tellingly, it would be senseless to presume that the enhancement identifies exactly the same conduct as the base offense itself. If the Sentencing Commission wished to ensure stiffer sentences for all those who receive and sell stolen property, it could have simply raised the base offense level. There must, then, be a...

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