U.S. v. Myers

• Decision Date: 09 December 1999
• Docket Number: No. 98-60775,98-60775
• Citation: 198 F.3d 160
• Parties: (5th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RONALD BRUCE MYERS, also known as Richard Davis Parker, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 160

198 F.3d 160 (5th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RONALD BRUCE MYERS, also known as Richard Davis Parker, Defendant-Appellant.

No. 98-60775

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

December 9, 1999

[Copyrighted Material Omitted] Paul David Roberts, Asst. U.S. Atty., Calvin D. Buchanan, Oxford, MS, for Plaintiff-Appellee.

Kent Elliot Smith, Webb, Sanders, Balducci & Smith, Oxford, MS, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Mississippi

Before KING, Chief Judge, REYNALDO G. GARZA and EMILIO M. GARZA, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Ronald Bruce Myers challenges the sentence he received pursuant to his conviction for theft of a recreational vehicle and possession of stolen state securities. For the reasons that follow, we AFFIRM in part, VACATE in part, and REMAND for further consideration consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

In April, 1998 Ronald Myers stole a recreational vehicle (RV) from a dealer's lot in Pensacola, Florida. Shortly thereafter, Myers met up with codefendant Gary Figueroa. Myers and Figueroa decided to commit a burglary and drove the stolen RV to Olive Branch, Mississippi, for that purpose. After the two men selected a particular RV lot, Figueroa remained in the stolen RV as a lookout, while Myers burglarized one of the RV's on the lot. Myers was arrested at that time. Figueroa was arrested the following day in Batesville, Mississippi, driving the stolen RV. Inside the stolen RV, officers found blank identification documents; counterfeit identification documents; 347 blank, authentic State of Virginia vehicle titles; and various document-making devices.

A grand jury in the Northern District of Mississippi subsequently returned a five-count indictment against Myers and Figueroa. Count One of the indictment charged Myers and Figueroa with conspiracy to transport stolen motor vehicles that had been transported across state lines, to possess stolen motor vehicles that had been transported across state lines, to make and possess forged state securities, to produce false identification documents in and affecting interstate commerce, and to possess implements for making forged state securities and false identification documents. The remaining four counts charged some of the substantive counts associated with the conspiracy. Myers pleaded guilty to the conspiracy count pursuant to a written plea agreement with the Government in exchange for the dismissal of the remaining counts. The district court sentenced Myers to 44 months imprisonment, three years' supervised release, restitution in the amount of $40,256.02, and a special assessment of $100. Myers timely filed a notice of appeal.

II. DISCUSSION

Myers alleges four bases of error: (1) that the district court erred in imposing a four level enhancement under the United States Sentencing Guidelines; (2) that the district court erred when it used the value of the stolen recreational vehicle as the amount of loss under both the theft guideline and the fraud guideline in calculating Myers' sentence; (3) that Myers' was sentenced in violation of Fed.R.Crim.P. 32; and (4) that the district court plainly erred in failing to make adequate findings regarding Myers' ability to pay restitution and in ordering him to pay restitution immediately. For the reasons that follow, we affirm the district court on all grounds except the immediate payment of restitution, which we remand for further proceedings to consider his ability to pay immediately.

1. The Four Level Sentencing Enhancement.

Myers contends that the district court misapplied the United States Sentencing Guidelines (Guidelines) when it enhanced his offense level under U.S.S.G. 2B1.1(b)(4)(B).¹ That section authorizes a four-level enhancement "[i]f the offense involved receiving stolen property, and the defendant was a person in the business of receiving and selling stolen property." Id. This court reviews a district court's findings of fact under a clearly erroneous standard and its application of the Guidelines to those findings de novo. See United States v. Brown, 7 F.3d 1155, 1159 (5th Cir. 1993). A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole. Id.

An enhancement under 2B1.1(b)(4)(B) is intended as a "punishment for fences, people who buy and sell stolen goods, thereby encouraging others to steal, as opposed to thieves who merely sell the goods which they have stolen." United States v. Sutton, 77. F.3d 91, 94 (5th Cir. 1994) (emphasis added). See also united States v. Mackay, 33 F.3d 489, 497 (5th Cir. 1994) (upholding enhancement under former 2B1.2(b)(4)(A) because there was sufficient evidence to support the district court's finding that the defendant bought stolen item from another person, even though there was evidence which contradicted that finding); United States v. Esquivel, 919 F.2d 957, 960 (5th Cir. 1990) ("it is because someone else stole the shoes sold by Esquivel that . . . the fencing operation falls within the intended purview of the background to and text of former section 2B1.2(b)(3)(A).").

We note that Myers alleges that the district court erred in considering his theft of motor homes, which he later sold, in his four-level sentence enhancement under 2B1.1(b)(4)(B). Such conduct would not be a proper basis for a sentencing enhancement under that section as interpreted by Sutton, 77 F.3d at 94 (noting that 2B1.1(b)(4)(B) is not intended to punish thieves who merely sell the goods which they have stolen). Myers also alleges the district court erred in relying on his admission that he had previously created counterfeit titles for people who had stolen motor homes. Such conduct was the basis of a prior conviction for which Myers had already been sentenced. Thus such conduct, on its own, would not be a proper basis for a sentencing enhancement under 2B1.1(b)(4)(B). However, these alleged errors are without consequence because, as noted below, there is sufficient evidence on the record on which to conclude that the 2B1.1(b)(4(B) sentencing enhancement should apply.

Three hundred forty-seven blank, authentic State of Virginia vehicle titles were found in the stolen RV at the time of Figueroa's arrest. According to the Presentence Report (PSR), the vehicle titles were stolen from the Virginia Department of Motor Vehicles. Although it is not entirely clear from the PSR who actually stole the vehicle titles, it appears as if an employee of the Virginia Department of Motor Vehicles gave them to Figueroa in exchange for drugs. Myers pleaded guilty to, among other things, conspiracy to making, uttering, and possessing forged state securities. Thus, if Myers and Figueroa received the stolen Virginia vehicle titles from a third person, as the PSR suggests, then Myers' offense would involve "receiving stolen property." See Sutton, 77 F.3d at 94 (noting that we have repeatedly stated that a person can receive the "in the business" enhancement when the only goods he has fenced are those for which he is convicted) (citations omitted). Moreover, Myers' admission at sentencing that he previously sold counterfeit titles to people who had stolen motor homes supports a finding that he intended to sell the Virginia vehicle titles and, consequently was "in the business of receiving and selling stolen property." Accordingly, it was not clearly erroneous for the district court to conclude that Myers received stolen property and was in the business of selling stolen property. Nor can there be any doubt that the theft and sale of vehicle titles encourages the theft of vehicles. Thus we affirm the four-level sentencing enhancement on that basis.

2. Amount of Loss

Next, Myers contends that the district court misapplied the guidelines when it used the value of the stolen RV as the amount of "loss" under both the theft guideline ( 2B1.1) and the fraud guideline ( 2F1.1) in calculating his sentence. Because Meyer's contention involves the district court's application of the guidelines, it is subject to de novo review. See Brown, 7 F.3d at 1159.

Myers pleaded guilty to a multiple count conspiracy. In the PSR, the probation officer noted that Myer's conspiracy conviction included offenses under U.S.C. 513 (possessing forged state securities and implements for making forged state securities); 18 U.S.C. 1028 (producing false identification documents and possessing implements for making false identification documents); 18 U.S.C. 2312 (transporting a stolen motor vehicle across state lines); and 18 U.S.C. 2313 (possessing a stolen motor vehicle that had been transported across state lines). The probation officer calculated the offense levels for the 513 and 1028 offenses under the fraud guideline ( 2F1.1) and the offense levels for the 2312 and 2313 offense levels under the theft guideline ( 2B1.1). Myers' base offense level under the theft guideline was increased by nine levels because the loss (the value of the stolen RV, which was $156,405) exceeded $120,000. Myers' based offense level under the fraud guideline was increased by seven levels based on the same loss amount. After further adjustments were made, Myers' total offense level under the theft guideline was 14, and his total offense level under the fraud guideline was 13. Because the offenses were grouped under 3D1.2(d), the highest offense level, i.e. the offense level of 14 from the theft guideline, was used in calculating Myers' guideline range.

Myers objected prior to and at sentencing, contending that the stolen motor home had nothing to do with the offenses calculated under the fraud guideline. Consequently, he maintained that the value of the stolen RV should not have been used as the loss amount under that guideline. The district court overruled Meyer's objection, stating that the value of the stolen RV could be considered...