concurring and dissenting:
I agree with most of what the majority says and I join in parts I-II(A) of the majority’s well-articulated opinion. Nonetheless, because I disagree with the majority’s test for determining whether a receiver of stolen goods is “in the business of receiving and selling stolen property,” I respectfully dissent.
I suggest that our sentencing scheme envisions a considerably simpler test than that employed by the majority. Basically, two types of defendants are prosecuted for receiving stolen goods: those who acquire “hot” merchandise for their own use, and those who do so for resale to others. The commentary to U.S.S.G. § 2B1.2 (1992) states:
Persons who receive stolen property for resale receive a sentence enhancement because the amount of property is likely to underrepresent the scope of their criminality and the extent to which they encourage or facilitate other crimes (emphasis added).
Thus, the person who acquires a stolen television set for his own use is less culpable than the person who acquires one to sell at a profit. A professional fence encourages additional thefts by others, who know their stolen booty has a ready market. This is true regardless of “the length of [the] fence’s resume.” United States v. Esquivel, 919 F.2d 957, 960 (5th Cir.1990).
To my mind, then, the test should be simple: did the defendant acquire the stolen goods with the intent to resell them? If so, the four-level enhancement applies. Intent, not an actual sale, must be the focus of the test, although in many cases, as here, a sale will provide overwhelming evidence of intent. In other contexts, intent will be readily infer-able from the circumstances of the ease. King was apprehended in the act of selling the stolen bonds which were obviously not *1309obtained for his own use; hence, I would affirm the sentence of the district court.
The district court, in applying the “in the business” enhancement, relied largely on Es-quivel. The majority distinguishes that case on the ground that the fencing scheme was considerably more elaborate than in this case. I am not convinced. Although I believe that the monetary value of the goods fenced is irrelevant for purposes of applying the “in the business” enhancement, I note that the value of the stolen goods here was approximately $220,000 and close to the value of the 350 cases of athletic shoes at issue in Esquivel. Like Esquivel, King also had an “assistant” working for him in the fencing operation. Indeed, most of the distinctions relied on by the majority between the two cases spring more from the differences between the goods themselves and the different ways they had to be disposed of. Stolen savings bonds and stolen sneakers are different — the former might be saleable in.two or three transactions while the latter requires a consignment scheme with central storage and electronic communications — but this does not make King any less culpable than Esquivel.
The majority instead relies heavily on United States v. St. Cyr, 977 F.2d 698 (1st Cir.1992). There, the First Circuit Court of Appeals held that the sentencing court must review the totality of the circumstances on a ease-by-case basis. Under this scheme, the most important factor is the regularity of the defendant’s fencing operation, followed by its sophistication. Id. at 703. Following the reasoning of St. Cyr, a sentencing court may apply the enhancement if the defendant has regularly been engaged as a professional fence; failing that, the enhancement may still be applied, even without evidence of past fencing activity, if the scheme is sufficiently complex. Id. at 704.
I think that St. Cyr is simply wrong. Under its needlessly complicated and unpredictable test, a first-time fence (or worse, a skilled, experienced fence who is apprehended for the first time) cannot be given the “in the business” enhancement unless the fencing operation is unusually complex. I think that is nonsense. Following this test, a person might be caught red-handed selling stolen stereo equipment from the back of a van, yet avoid an enhanced, sentence. I would not adopt such a rule.
In sum, I believe whether one is “in the business” is a simple matter of intent, and because it is manifestly clear that King acquired these bonds for resale, I would affirm the district court’s judgment of sentence. Hence, I respectfully dissent.