U.S. v. Russell

• Decision Date: 01 November 1990
• Docket Number: Nos. 89-2652,s. 89-2652
• Citation: 913 F.2d 1288
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: UNITED STATES of America, Appellee/Cross Appellant, v. Ricky RUSSELL, Appellant/Cross Appellee. UNITED STATES of America, Appellee/Cross Appellant, v. Charles MOORE, Appellant/Cross Appellee. UNITED STATES of America, Appellee, v. Willie WALKER, Appellant. UNITED STATES of America, Appellee/Cross Appellant, v. Gilbert STUMPE, Appellant/Cross Appellee. UNITED STATES of America, Appellant, v. Anthony TAYLOR, Appellee. to 89-2655 and 89-2894.

Page 1288

913 F.2d 1288

UNITED STATES of America, Appellee/Cross Appellant, v. Ricky RUSSELL, Appellant/Cross Appellee.

UNITED STATES of America, Appellee/Cross Appellant, v. Charles MOORE, Appellant/Cross Appellee.

UNITED STATES of America, Appellee, v. Willie WALKER, Appellant.

UNITED STATES of America, Appellee/Cross Appellant, v. Gilbert STUMPE, Appellant/Cross Appellee.

UNITED STATES of America, Appellant, v. Anthony TAYLOR, Appellee.

Nos. 89-2652 to 89-2655 and 89-2894.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 15, 1990.

Decided Sept. 10, 1990.

Rehearing Denied Nov. 1, 1990.

Bradley G. Kafka, Clayton, Mo., for appellant Stumpe.

Valerie M. Benkert, St. Louis, Mo., for appellant Walker.

Timothy P. Leahy, St. Louis, Mo., for appellant Russell.

Michael Dwyer, St. Louis, Mo., for appellant Moore.

David Rosen, St. Louis, Mo., for appellee U.S.

Norman G. Smith, St. Louis, Mo., for appellee Taylor.

Before McMILLIAN, FAGG, Circuit Judges, and STROM, ^* District Judge.

STROM, District Judge.

Ricky Russell, Charles Moore, Willie Walker, Gilbert Stumpe and Anthony J. Taylor (hereinafter sometimes referred to as defendants) pled guilty to possession of stolen property valued in excess of $100 in violation of 18 U.S.C. Sec. 659. They were sentenced under the Federal Sentencing Guidelines (Guidelines). Russell, Moore, Walker, and Stumpe appeal their sentences. Russell also contends that the district court ¹ erred in denying his motion to withdraw his guilty plea. The United States (hereinafter, the government) cross-appeals with respect to Russell, Moore, Stumpe and Taylor. We affirm.

BACKGROUND

These related cases involve possession of stolen goods. In April, 1988, a joint investigation of the sale of stolen goods in East St. Louis was initiated by the Federal Bureau of Investigation, United States Customs Service, several other federal agencies, and state and local authorities. A confidential informant and an FBI undercover agent first met with Ricky Russell in April, 1988, regarding potential future sale of stolen items. In May, 1988, Ricky Russell's brother, Tony Russell, contacted the informant and offered to sell thirty-two (32) cases of stolen Hennessy cognac for $3,200. The retail value of the cognac was $6,326.40. Tony Russell was later arrested while loading the stolen goods in East St. Louis.

On May 5, 1988, the confidential informant, an FBI agent, and Moore and Ricky Russell met, and Ricky Russell, Moore and the informant sold the agent one case of the cognac for $100. Russell told the agent that he could also obtain credit cards and jewelry. On May 17, 1988, the informant and Tony Russell arranged for the sale of six (6) stolen AT & T computers for $300. The computers had been stolen from In June, 1988, Tony Russell and Charles Moore again spoke with the informant regarding the sale of stolen vodka and pants. They negotiated the sale of thirty-five (35) or thirty-six (36) cases of McCormack vodka at $30 per case and sixty (60) pairs of Montgomery Wards men's action pants at $10 per pair. Later that day, the informant met with Tony Russell, Moore, Stumpe, Taylor and Walker. The informant paid $800 for thirty-five (35) cases of vodka and fifty-five (55) pairs of pants. All of these items had been stolen from the Venice, Illinois, rail yards. The vodka had a value of $1,530 and the pants, $1,292.50. The stolen property was then transported from Illinois to Missouri by Tony Russell, Moore, Stumpe, Taylor, and Walker in two vehicles.

a rural freight yard in Venice, Illinois, and had a retail value of $3,600.

On June 10, 1988, the informant again spoke with Tony and Ricky Russell about the sale of forty (40) cases of stolen Remy Martin cognac. During these conversations, Ricky Russell told the informant that he was becoming directly involved in the negotiations because he felt he had been short-changed by Tony Russell on previous transactions. A price of $3,400 for the transaction was agreed upon. Later, Ricky Russell and Moore attempted to deliver the cognac but were arrested.

Defendants were indicted, along with others, in a five-count indictment in connection with the possession and transportation of forty (40) cases of Remy Martin cognac. Pursuant to stipulation, defendants pled guilty to one count and the other charges were dismissed.

Walker agreed to cooperate with the government prior to his plea and Stumpe agreed to cooperate after he and the other defendants had pled guilty. The record shows no other affirmative acts with respect to acceptance of responsibility by defendants.

Prior to sentencing, but subsequent to release of the United States Probation Office presentence report, Ricky Russell moved to withdraw his guilty plea. The motion was denied.

On September 27, 1989, defendants were sentenced. Russell was found to be the manager or supervisor of the group and was sentenced to thirty-six (36) months imprisonment. Gilbert L. Stumpe was sentenced to a prison term of fourteen (14) months. Anthony Taylor was sentenced to a term of twenty (20) months. Charles Moore was sentenced to forty-eight (48) months imprisonment. Willie Walker was sentenced to twenty (20) months imprisonment. The sentence for each includes a period of supervised release following incarceration.

In applying the Guidelines, the district court increased Stumpe's and Walker's offense level from seven (7) to fourteen (14) pursuant to U.S.S.G. Sec. 2B1.2(b)(4) as involving organized criminal activity. The district court also allowed a two-level reduction in each defendant's initial Total Offense Level for acceptance of responsibility under U.S.S.G. Sec. 3E1.1. The district court enhanced Ricky Russell's sentenced by three (3) levels as the manager or supervisor of five or more persons pursuant to U.S.S.G. Sec. 3B1.1(b).

DISCUSSION

I.

For reversal, Stumpe and Walker argue that the district court erred in construing Sec. 2B1.2(b)(4) of the Guidelines to enhance their offense level from seven (7) to fourteen (14). Stumpe and Walker argue that a subsequent clarifying amendment to that section should have been considered with regard to the applicability of the section. Construction of the Guidelines is a question of law which is subject to plenary review. United States v. Ofchinick, 877 F.2d 251 (3rd Cir.1989).

It is clear that 18 U.S.C. Sec. 3553(a)(4) and 3553(b) mandate application of the guideline in effect on the date of sentencing. At the time of their sentencing on September 27, 1989, Sec. 2B1.2(b)(4) provided that "[i]f the offense level involved organized criminal activity, and the offense level as determined above is less than level 14, increase to level 14." U.S.S.G. Sec. 2B1.2(b)(4). "Organized While the sentencing commission characterizes the amendment as a "clarification," see Amendments to Sentencing Guidelines for United States Courts, 54 Fed.Reg. 94, 21355 (1989), it is clear from the language and effect of the amendment that the revision constitutes a fundamental change in the application of the section. Originally, the section was applicable to enterprises "such as motor vehicle theft rings or chop shops." U.S.S.G. Sec. 2B1.1, comment. (n. 8) (emphasis added). Subsequent to the amendment, it is limited to those ventures only. There is nothing in the guideline in effect at the time of the sentencing to lead to a conclusion that offenses such as those at issue here were not included in the section. We find that the district court's construction of the former Sec. 2B1.2(b)(4) is correct.

                criminal activity" was defined in the application notes to the previous section of the Guidelines as referring to "operations such as car theft rings or chop shops, where the scope of the activity is clearly significant but difficult to estimate."    U.S.S.G. Sec. 2B1.1, comment.  (n. 8).  The Guidelines were amended effective November 1, 1989, to provide as follows:  "[i]f the offense involved a organized scheme to receive stolen vehicles or vehicle parts, and the offense level as determined above is less than level 14, increase to 14."    U.S.S.G. Sec. 2B1.2(b)(5)
                

II.

Moore asserts that the district court erred in applying the retail value of the goods stolen as the measure of loss under Guidelines Sec. 2B1.1(b)(1)(G). That section allows for increases in the offense level for the value of the property according to corresponding tables in Sec. 2B1.1. The application notes to that section state:

"Loss" means the value of the property taken, damaged or destroyed. Ordinarily, when property is taken or destroyed, the loss is the fair market value of the particular property at issue. Where the market value is difficult to ascertain or inadequate to measure harm to the victim, the court may measure loss in some other way, such as reasonable replacement cost to the victim. ²

U.S.S.G. Sec. 2B1.1, comment. (n. 2). The application notes further provide that "the loss need not be determined with precision, and may be inferred from any reasonably reliable information available, including the scope of the operation." Id.

With respect to market value, the Sentencing Guidelines do not specify whether wholesale market value or retail market value is appropriate. The offense to which Moore has been convicted is 18 U.S.C. Sec. 659. The value of property is significant in Sec. 659 to determine whether the offense is a misdemeanor or a felony. For purposes of valuation of property under Sec. 659, the definition of value is found in 18 U.S.C. Sec. 641. United States v. Watson, 570 F.2d 282, 283 (8th Cir.1978). That statute provides that "[t]he word 'value' means face, par, or market value, or cost price, either wholesale or retail, whichever is greater." 18 U.S.C. Sec. 641 (emphasis added). ³ Accordingly, the district properly used the retail value in sentencing Moore.

Moore stipulated in his plea agreement that the value of the stolen goods was over $24,000. Moore contends however that the value used for...