U.S. v. Smith, 02-3481.

• Decision Date: 10 June 2003
• Docket Number: No. 02-3481.,02-3481.
• Citation: 332 F.3d 455
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Curtis W. SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

332 F.3d 455

UNITED STATES of America, Plaintiff-Appellee, v. Curtis W. SMITH, Defendant-Appellant.

No. 02-3481.

United States Court of Appeals, Seventh Circuit.

Argued April 16, 2003.

Decided June 10, 2003.

Brian Hayes (argued), Office of U.S. Atty., Chicago, IL, for Plaintiff-Appellee.

Gareth G. Morris (argued), Chicago, IL, for Defendant-Appellant.

Before POSNER, COFFEY and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Curtis Smith is a truck driver with a two million mile accident-free driving record. Unfortunately, his record for theft-free driving is considerably less impressive. Smith pled guilty to one count of theft of interstate freight in violation of 18 U.S.C. § 659. He now raises several challenges to his sentence, and we vacate and remand for re-sentencing.

I.

In early November 2001, Hirschbach Motor Lines hired Curtis Smith, a licensed commercial truck driver, to transport a load of toys from a Hasbro toy distribution center in Massachusetts to a Wal-Mart store in Iowa. On November 2, 2001, Smith picked up more than $64,000 worth of toys from Hasbro Distribution. Because the value of the load and the tractor-trailer is relevant to Smith's sentencing, we add that the toys were being transported in a Hirschbach-owned semi-trailer, which was valued at approximately $21,000. Smith hauled the trailer with a semi-tractor also owned by Hirschbach, and valued at approximately $26,000. The cargo never arrived at its planned destination, however, because Smith pulled off the road at various points between Massachusetts and Iowa and sold toys off the back of the truck. He used the money from this ill-conceived venture to buy crack cocaine for personal consumption. He was apprehended in Bridgeview, Illinois on November 20, 2001, after a local resident called police to report that a man was selling toys from the back of a truck at 1:30 in the morning. At the time of his arrest, Smith was more than two weeks late for the scheduled delivery at the Iowa Wal-Mart. Hirschbach had tried to contact him along the way using the global positioning and text-messaging system installed in the truck, but Smith had disabled the system shortly after departing the Hasbro Distribution center.

Smith was charged with one count of theft of interstate freight and entered a blind guilty plea after he was unable to agree with the government on the value of the theft loss. The court determined that the amount of the loss should include the value of the tractor-trailer as well as the contents, a total of approximately $111,438. The court accepted the government's recommendations to depart upward three levels because Smith's criminal history category of VI under-represented his criminal past and the likelihood for recidivism. The court enhanced Smith's sentence an additional two levels because the theft was facilitated by special skill and training, namely Smith's skill in driving commercial-sized trucks. Smith was credited with a two-level reduction in his sentence for acceptance of responsibility. The court imposed a special condition on Smith's period of supervised release, ordering him to relinquish his commercial driver's license and refrain from being employed as a truck driver. Finally, Smith was ordered to pay $51,245 in restitution, representing the value of the toys missing at the time the truck was recovered by law enforcement. All of this added up to 63 months in prison and three years of supervised release, plus restitution. Smith appeals.

II.

On appeal, Smith contends that the district court erred in including the value of the tractor/trailer in the amount of the theft loss, that the court was obliged to grant a three-level rather than a two-level reduction for acceptance of responsibility under the circumstances, that the special condition of barring him from driving a truck was an excessive deprivation of liberty, and that the court erred in finding that truck driving is a special skill that significantly facilitated the crime.

A.

Smith complains that the court erred in including the value of the tractor/trailer (for ease, we will call this the truck) in the amount of the loss because, he maintains, the evidence was insufficient to demonstrate an intent to steal the truck. Although Smith admitted that he intended to steal the contents of the truck, he made no such admission regarding the truck itself. He points to the fact that his own truck, a newer model, was being repaired at Hirschbach's facility while he was driving a Hirschbach loaner truck. Because his own truck was essentially serving as collateral for Hirschbach's truck, he contends it is counter-intuitive to conclude that he intended to steal Hirschbach's truck. The district court's determination of the amount of loss is a question of fact that we review for clear error, although the application of the sentencing guidelines is a legal question that we review de novo. United States v. Mei, 315 F.3d 788, 792 (7th Cir.2003); United States v. Rosalez-Cortez, 19 F.3d 1210, 1218 (7th Cir.1994).

Although it is true that a rational person is unlikely to steal an older, loaner vehicle while the owner of the loaner is repairing his new vehicle, the court was not obliged to find that Smith was acting as a rational person would act. Smith, after all, was caught in the dead of night selling hot Mr. Potato Heads out of the back of a truck in order to support his crack cocaine habit. Moreover, Smith was more than two weeks late in delivering the truck and the goods to their intended destination, and he had disabled the truck's global positioning device. Having sold the contents of the truck, it was just as counter-intuitive to assume that he would return the empty truck to his employer with no explanation about the missing load of toys. Smith also fails to mention that he had only $4000 in equity in the truck he left behind for repairs at Hirschbach, considerably less than the estimated $47,000 market value of Hirschbach's truck. We cannot find that the district court erred in concluding that Smith intended to steal the truck as well as the contents. The amount of the loss was properly calculated to include the truck as well as the goods.

B.

The court imposed an enhancement under section 3B1.3 for the use of a special skill:

If the defendant ... used a special skill in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.

U.S.S.G. § 3B1.3. The commentary to the guideline explains that a "special skill" is a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. "Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts." U.S.S.G. § 3B1.3, Commentary at ¶ 3. The court imposed this enhancement because Smith's thefts and the delay in detecting the thefts were facilitated by Smith's training and licensing as an over-the-road truck driver. Sentencing Tr. at 29. Smith now argues that truck driving, although admittedly more difficult than driving a sedan, is not a special skill. He maintains that his crime could have been committed by anyone able to open the back of a trailer, remove toys and hawk them on the street. He also urges us to find that, even if truck driving is a special skill, he did not use that skill in a significant way to facilitate his crime.

The government argues that Smith waived this objection, or at best forfeited it, and that we should review the enhancement for plain error. We believe Smith adequately preserved his objection by raising it in a pro se letter to the court, and then indicating at the sentencing hearing through counsel that he had no more objections other than the ones already argued. Although this was not an ideal method for preserving an objection, we believe both the court and the government were aware that Smith contested this point. See, e.g., United States v. Sumner, 265 F.3d 532, 538 (7th Cir.2001) (written objection to PSR and argument at sentencing hearing sufficient to preserve issue for appeal, even in absence of objection to the sufficiency of the court's findings). We therefore review the district court's factual findings under section 3B1.3 for clear error, and we determine de novo the legal meaning of "special skill." United States v. Lewis, 41 F.3d 1209, 1214 (7th Cir.1994). As Smith concedes, we have previously held that the skills necessary to operate an eighteen-wheeler justify enhancement under this section. Lewis, 41 F.3d at 1214. "An over-the-road commercially-employed truck driver is required to have a special operator's license. Members of the general public would have more than a little trouble successfully maneuvering a loaded eighteen-wheeler along roads and through parking lots." Id. Smith offers no real reason why we should reconsider that holding now. See also United States v. Mendoza, 78 F.3d 460, 465 (9th Cir.1996) (driving an eighteen-wheeler without any reported mishap over several years is a skill well beyond that possessed by the general public and constitutes a special skill under the guidelines).

The only question that remains then is whether Smith's special skill in operating an eighteen-wheeler significantly facilitated the commission or concealment of the crime. We cannot find that the district court clearly erred in answering this question in the affirmative. First, by Smith's own admission, his extraordinary skill in driving a truck, including his record of two million miles of accident-free driving, gave him access to the load of toys. As Smith himself explained to the court:

I got 2 million miles accident-free — that's more than most people in here ever drive in their life — in a tractor trailer. That's why I get hired. That's why I can go right out the door and get hired now with a felony — with ten felonies under my belt. Because they look at my driving record. They don't look at the things I did ... when...