Professional Documents
Culture Documents
United States v. St. Cyr, 1st Cir. (1992)
United States v. St. Cyr, 1st Cir. (1992)
___________________
____________________________
was on brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney,
______________________
with whom Richard S. Cohen, United States Attorney, and Jonathan
________________
________
R. Chapman, Assistant United States Attorney, were on brief, for
__________
appellee.
_________________________
_________________________
___________
*Chief Judge, United States District
Rhode Island, sitting by designation.
defendant-appellant
attempt.
Confronted
criminality, St.
stolen
Cyr
John L.
with
District of
the
pled guilty
Cyr
botched his
irrefragable
to two
threads
counts of
third
of
his
possessing
sentence on
guideline-driven
the first
sentence
the
Appellant received a
count (two
on
the
years) and
second
count
(fourteen months).
year sentence
He will be eligible
two-
No parole
is
Cyr
appeals the
We affirm
after studying
court, we vacate
judgment in
count.
court's construction of
guideline never
the sentence
before
its
However,
U.S.S.G.
interpreted
imposed on the
court's
the district
2B1.2(b)(4)(A),
lower
by this
second count
and
FACTS
FACTS
In
labelled
sweaters
and dresses
bound
for
clothing
____________________
stores.
By
in Methuen, Massachusetts.
of Thomas Flaherty.
the proprietor
time, appellant
McKay.2
groups and
He divided
"returned" them
to an affected
$399.20
sweaters.
bought twenty-two
refunds
retailer, L.L.
for
the
first
price.
two
Bean
Appellant
batches
of
a mailing address.
in
stolen sweaters
He confessed.
what
amounts
to
passing
reference,
St.
Cyr
We refuse to give
jurisdiction
"plainly
with respect
to
unreasonable"
criminal
Sentencing Act of
1266,
Count I
1987, Pub.
____________________
L. No.
at 18
__
100-182,
U.S.C.
first trip to
26, 101
See
___
Stat.
3742(a)(4) (1988).
L.L. Bean.
That trip
took
place in October of
1987.
Hence,
otherwise
defective.
has offered no
imposed on count
meaningful rationale
I was unreasonable
or
adverted to on appeal
by
Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990); accord
____
______________
______
United States v.
______________
Zannino,
_______
895 F.2d
(1990).
1,
17 (1st
Cir.),
That principle is
cert.
_____
fully apposite
here.
III.
III.
(BOL)
reference to
applicable to
U.S.S.G.
count
the offense
2B1.2(a).
II, the
base offense
of conviction
was four.
level
See
___
was $572.70.
See
___
U.S.S.G.
level
increase
$1000).
for goods
2B1.2(b)(1) (directing
worth more
than
$100 but
a one-
less than
The court added four more levels because St. Cyr was "in
the business of
U.S.S.G.
2B1.1(b)(1)(B),
2B1.2(b)(4)(A).
stolen property . .
. ."
it utilized
Cyr's]
manner in which
he came into
adjustments.
It
went
up
two
levels
for
See U.S.S.G.
___
minor participation).
Given
resulted in a
5, Pt.
St. Cyr's
past,
these
A (sentencing table)
category III).
checkered
(offense level 9;
calculations
criminal history
the four-level
Standard of Review.
Standard of Review.
__________________
Appellate review of
the sentencing
guidelines is
a district court's
application of
ordinarily a dichotomous
it applies
process.
reach of the
in a
given
(1st Cir. 1992); United States v. Connell, 960 F.2d 191, 197 (1st
_____________
_______
Cir.
1992).
Once
the
court
of
appeals
has
940 F.2d 722, 739 (1st Cir. 1991), cert. denied, 112
_____ ______
18 U.S.C.
the
defined
3742(e) (1988).
S. Ct. 2301
Accordingly,
we
inferred
predisposition
toward fencing
activities
guideline
for
"receiving,
transmitting, or
(excess
directs the
in a
limns one
"the
transporting,
guideline
level
variety
district
of circumstances.
was
committed by
property
is
stolen
likely
to
crimes."
U.S.S.G.
bears
the
in
. ."
The
offense
the business
The
of
Sentencing
call the
for resale,
underrepresent
four.
2B1.2(b)(4)(A)
which we shall
enhancement
property
a BOL of
2B1.2
four-level increase if
person
this enhancement
U.S.S.G.
Section
stolen property . .
"in-the-business" or "ITB"
receive
transferring,
increase the
offense
persons
court to
The master
the
"the
scope
amount
of
of
their
As with
burden
of
establishing
that
the
ITB
Sklar, 920 F.2d 107, 110 (1st Cir. 1990); United States v. Unger,
_____
_____________
_____
915 F.2d 759, 761 (1st Cir. 1990), cert. denied, 111
_____ ______
S. Ct. 1005
____________________
3The government suggests that
(1991).
There is a dearth of
section
2B1.2(b)(4)(A)
and the
are
silent on
the
of . . . ."
We
commentary,
quoted
supra
_____
p.
6,
to
beyond the
resolve
the
essential
meaning
commentary's
of
motivating
the
section
purpose
business
criminal
individual.
one
thing,
underrepresentation
An
underworld
the commentary
leaves more
facilitation
of criminal
apparent.
The
Nonetheless,
is
2B1.2(b)(4)(A).
of
other
activity
crime
are probably
and
present
it.
Thus,
even purchasers of
stolen goods who never sell and sellers of stolen goods who never
purchase can
other crime.
For another thing, individuals convicted of any crime
not just those
to
have
committed or
supported
other,
non-charged, offenses.
404(b)
prohibits
the
introduction into
evidence
of
defendant's prior
predisposition.
It
is
defendant
entire
has been
criminal
subculture
convicted
career
or
trafficking in stolen
is likely
his
of criminality.
contribution
There
is no
property, per
___
to
general
sound basis
se, can be
__
his
on which
singled out
in
this respect.
Finally,
and
perhaps
conduct
as the
Commission wished to
most
tellingly,
it
would
be
base offense
itself.
If
the Sentencing
receive and sell stolen property, it could have simply raised the
base
offense level.
beyond simply
activity
There
facilitation
must, then, be
a limiting principle
or underrepresentation
of
criminal
determine
possibility of
United States
_____________
v. Esquivel,
________
919 F.2d
957, 960
See,
___
(5th Cir.
black
market
speculators who
ease
the buying
stolen
goods
by simplifying
market
entrance
stolen
property,
necessarily
fence" is as
a step
we do
not believe
forward.
chancy as
that
Defining
and
selling of
for supplies
focusing on
the term
of
them is
"professional
of the
guideline
itself.
who
are
"in
the
from those
who
are not
whether to
must
regularity
order
impose the
undertake
totality of
business"
so
dealing in
engaged.
the circumstances,
of
approach,
weighing
the
on the
defendant's operation,
defendant is "in
in
the sentencing
and sophistication
stolen
Therefore,
ITB enhancement,
case-by-case
to determine whether a
of
in
the business" of
this
assessment fits
harmoniously with
the
courts
that
2B1.2(b)(4)(A).
these courts,
defendant
stolen
have
addressed
Despite the
property
engaged in
by
the
surveying
meaning
differences in analytic
either implicitly
was
the
or explicitly, judge
business of
the
overall
buying
of
section
approach,
whether a
and selling
circumstances
and
See, e.g., United States v. Connor, 950 F.2d 1267, 1275 (7th Cir.
___ ____ _____________
______
1991) (stressing
determination);
the importance
Esquivel,
________
characteristics of
of past
919
F.2d
at
criminality to
960
an ITB
(assessing
the
finding it
business" where
he sold
only goods
that he,
himself, had
Under the
approach we
stolen).
9
2.
2.
endorse
Pertinent Considerations.
Pertinent Considerations.
________________________
today,
circumstances
a
in
district
its
court
effort
to
should
weigh
determine
number
of
the
ITB
whether
do not
dominant
activities
business.
merchandise.
suggest
source of
that selling
a
stolen
defendant's income
become sufficiently
prominent
property must
before his
to be
be
the
felonious
regarded as
that
an ITB
earned 25%
enhancement
of his total
Nevertheless,
property
a defendant
selling stolen
who
property).
defendant's past
continuing
income from
for
was appropriate
or
activities, his
expanding the
handled.
Where
demonstrated interest
operation,
there is
no
and the
value
in
of the
indication either
of a
business."
in
fencing will
cf. Esquivel,
___ ________
requirement
merit a
significant illegal
the defendant is
conduct
which
at 1275
have previously
is similar"
But
___
a new,
but very
sophisticated, fencing
operation to be a business).
10
We
to
envision
useful
parallel
between
U.S.S.G.
2B1.2(b)(4)(A)
and
enhancement.
An
another
individual
which
convicted of
allows
tax
. .
."
ITB
fraud rates
U.S.S.G.
See id.,
___ ___
is
one
F.2d
comment.
universal
1319, 1327
2T1.4(b)(3).
The
definitions of business.
(n.3).
an
is "in
thread
denied,
______
(7th
Cir.
to the
RICO
in
virtually
legal
1988) (construing
the
phrase
1952), cert.
_____
v. Lignarolo, 770
_________
1984) (construing a
similar phrase in
statute, 18
1105 (1986);
F.2d
(9th
126
all
of
United States
_____________
preparers or
respect
enhancement
Indeed, regularity
F.2d
an
returns
863
guideline
Cir.
U.S.C.
1961-1968),
United States v.
_____________
1979)
(observing
Van Buren,
_________
that
cert.
_____
593
business
isolated,
to exist.4
Citing Esquivel,
________
919 F.2d
957, the
government argues
____________________
___
____
U.S.S.G.
2E3.1 (discussing defendant's engagement in a gambling
business); U.S.S.G.
2B6.1(b)(2) (discussing an enhancement for
being "in the business of receiving and selling" stolen motor
vehicles or parts).
11
that
regularity
condition
is
sufficient, but
Esquivel, purchased
350
necessary,
of
stolen shoes.
implemented
deliveryman.
961.
sale-by-consignment
He did not
The Fifth
Esquivel had
e.g.,
____
quickly
warehouse
could keep in
operation,
He
an
also
fencing
always
installed
his customers
elaborate
pairs
not
system
and
that, regardless
operation
is
agree that
a second
He
Id. at
___
of whether
be "in the
business" of
hired
Circuit concluded
renting
the sophistication
circumstance
that
of
selling
Id. at 960.
___
the defendant's
may itself
indicate
business
conduct.
fencing
business,
We can
although
very
much
in which a
business,
has
been
In
government must at
regularity, say,
by
least offer a
showing that
meaningful proxy
the operation
crossed a
court could
sophistication.
Cyr
not
plausibly find
either regularity
or
12
L.L.
constitute
a business.
primitive:
he
system,
did not
he
regularity to the
had no
sizable inventory
By
token, his
elaborate communication
employ assistants,
of stolen goods.
the same
scheme.
degree necessary to
he
operation was
or distribution
did not
maintain a
some point,
the scheme
Cyr not
fraudulent
might have
become
sufficiently
institutionalized
requirement.
But
possibility,
finding St.
to
to be
meet
the
ITB
responsible, for
relevant
for the
will light
has
sufficient to
was engaged
that
St.
simply
show, by
no
not
had
produced
on
this cake.
quantum
in a business.5
Cyr
more candles
In the
installed or
was
absence of
developing
of
The
evidence
that appellant
any indication
a
systematic
in sweaters insufficient, in
circumstances, to
justify an
the totality of
enhancement under
U.S.S.G.
____________________
2B1.2(b)(4)(A).
C.
C.
Obstruction of Justice.
Obstruction of Justice.
______________________
Appellant asserts
applied
a two-level
court incorrectly
enhancement for
obstruction of
the sentencing
route to establishing
justice en
II.
The
3C1.1.
conduct
warranted
because
he
The district
an
court
found that
upward adjustment
"provid[ed]
materially
under
false
appellant's
this
guideline
information
to
U.S.S.G.
pivotal
facts are
these.
Following St.
Cyr's
the
criminal
presentence
record, St.
Cyr
report.
did not
failure
resulted
report.
rectified,
to provide
in a
recounting
mention three
occurred in
1978.
He
the
prior
Massachusetts
to
a year earlier
officer
a complete record
substantial delay
his
also failed
In
testified
of his
in completing
that
St.
Cyr's
prior convictions
the presentence
St. Cyr's
14
to the
omissions
occurred.
Presentence
ingredients of
the sentencing
administration
of
defendant
has
probation
officer to
the
process and,
criminal
justice
solemn obligation
ensure that
accurate information.
Providing
in
probation
officer
reports
to
be
the court
are
important
thus, vital to
system.
the
Hence,
forthcoming
with a
receives complete,
respect to
presentence
report
is
of actual prejudice.6
F.2d 164, 167 (11th Cir. 1992); United States v. Baker, 894
_____________
_____
F.2d
prove
appellant also
materiality.
Tabares,
_______
government did
a codefendant,
Ramirez,
We reversed.
no evidence
that Ramirez
security number.
Id. at 411.
___
Id. at 411-12.
___
willfully lied
We noted there
about his
We then theorized
social
that, even if
____________________
Ramirez had
prevaricated, his
the investigation
in any material
case at bar is
its
face.
See,
___
e.g.,
____
U.S.S.G.
had been
Id.
___
easily distinguishable.
have impeded
Unlike in
material
3C1.1, comment.
(n.5)
(defining "material . .
believed, would
tend
determination").
. information" as "information
to influence
or
affect the
issue
under
that, if
the test
of materiality
for purposes
Bearing in
of Application
Note 3(h) is not a stringent one, see, e.g., Dedeker, 961 F.2d at
___ ____ _______
information about
for
purposes of
United States v.
______________
his criminal
U.S.S.G.
Delgado, 936
_______
record is
3C1.1.
F.2d 303,
a material
See
___
id.; accord
___ ______
306 (7th
Cir. 1991),
brings
that the
oversee
from
the
to
appellant's
district
willful. While
scope of U.S.S.G.
955 F.2d 770,
us
third,
court erred
in
we review questions
and
last,
branding his
addressing the
1992), we are
to
the inferences the court drew from St. Cyr's conduct and
witnesses' credibility.
Factbound
determinations of
inadvertent; he
convictions
claimed
St.
provide a
that . .
. [his]
different
the
account
reaction
to
unmentioned
complete record
The district
the
of
the
interview
officer's
convictions.
who
and
independent
In the
and credible
of those circumstances."
officer,
of his
court listened to
probation
previous
On that basis, he
about his
of the moment.
failure to
heard
simply forgotten
that his
criminal
had
The
provided
of
St.
court also
a
markedly
Cyr's later
discovery
with
of
the
Cyr had
intentionally misled
several
criminal history;
by omitting
and that,
as a
result,the preparationofthepresentencereportwasneedlesslydelayed.
court.
will
legitimate reason to
do so here.7
Only rarely
Thus, this
and in
vista of
There is no
issue assumes
____________________
7U.S.S.G.
3C1.1, comment. (n.1) suggests that, in applying
the obstruction-of-justice guideline, the defendant's "testimony
or statements should be evaluated in a light most favorable to
[him]."
St. Cyr says that the proper application of this
language requires that all evidentiary conflicts be resolved in
favor of the defendant. We have held many times, however, that
the Sentencing Commission did not mean to give defendants so
dazzling a prize. See United States v. Torres, 960 F.2d 226, 228
___ _____________
______
(1st Cir. 1992); United States v. Brum, 948 F.2d 817, 819 (1st
_____________
____
Cir. 1991); United States v. Rojo-Alvarez, 944 F.2d 959, 969 (1st
_____________
____________
Cir. 1991); United States v. Aymelek, 926 F.2d 64, 68 (1st Cir.
_____________
_______
1991); Akitoye, 923 F.2d at 228-29. Rather, the language means
_______
that, in a borderline case
one where the judge, after
scrutinizing the evidence, has no firm conviction one way or the
17
familiar cast:
the
sentencing
court's adoption
of
one
such view
clearly erroneous.
(1st Cir.
The
1990).
cannot
be
obstruction-of-justice enhancement
must
stand.
IV.
IV.
CONCLUSION
CONCLUSION
We need go no further.
affirmed,
as is
his
sentence on
in the business of
But, because
dealing in stolen
property, we vacate
the
resentencing in
____________________
other
the defendant should be given the benefit of the doubt.
In light of the district court's emphatic findings, the quoted
language has no applicability here.
18