United States v. Londono

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_______________________________

No. 01-10267
_______________________________

UNITED STATES of AMERICA,

Plaintiff-Appellee,

versus

JONATHAN STEVEN LONDONO,

Defendant-Appellant.

_________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________

March 6, 2002

Before KING, Chief Judge, and REAVLEY, and WIENER, Circuit
Judges.

PER CURIAM:

Defendant-Appellant Jonathan Steven Londono pleaded guilty to

theft of an interstate shipment — diamonds, in this instance — in

violation of 18 U.S.C. § 659. He appeals his sentence, contesting

several aspects of the district court’s sentencing methodology as

well as (1) the court’s imposition of a sentence consecutive to his

state sentence, (2) the inclusion of a California conviction for a

crime committed as a juvenile in computing his Criminal History

Category (“CHC”), and his being returned to state custody.

Concluding that the court erred reversibly in enhancing Londono’s
sentence under United States Sentencing Guideline (U.S.S.G.) §

2B1.1(b)(2) for theft from the person of another, we vacate and

remand the case for resentencing consistent with this opinion.

I. FACTS AND PROCEEDINGS

The undisputed facts underlying Londono’s crime of conviction

are were summarized in the factual resume submitted with the plea

agreement:

1. At approximately 4:20 p.m. on Wednesday April 14,
1999, Zvi Ben-Yosef, a diamond salesman for A.
Schartz & Sons, Israel[,] was transporting $550,000
worth of loose diamonds from Dallas-Fort Worth
International Airport, Texas (DFW) to San
Francisco, California....Ben-Yosef placed his black
leather “carry-on” case containing the diamonds (as
well as Ben-Josef’s [sic] passport and airline
tickets) on the x-ray belt at the...security
checkpoint. As Ben-Yosef started through the
magnetometer, a Hispanic female (later identified
as Maria Elvia Charry) stepped in front of him and
dropped her wallet. Charry blocked Ben-Yosef while
Edwin Gomez picked up Ben-Yosef’s bag containing
the diamonds and walked out of the secured area of
the airport through the adjacent exit doors.
Defendant, JONATHON STEVEN LONDONO served as a look
out for Gomez, and had stood next to Gomez as Gomez
stole Ben-Yosef’s bag. Gomez, LONDONO, and Charry
took the diamond laden case from the airport and
transported it to a location outside the airport.
The stolen diamonds were transported out of the
state of Texas by LONDONO, Charry, and Gomez.

2. The theft of the loose diamonds from Ben-Yosef was
planned to by [sic] Charry, LONDONO, and Gomez in
advance of Ben-Yosef’s arrival at the security
checkpoint at the DFW airport.

During the sentencing hearing, the district court heard

testimony from Agent Steven Sumner of the FBI regarding the manner

in which the theft took place, including in particular whether the

2
diamonds were stolen from “the person of Ben-Yosef.” Sumner

testified that, to the extent Ben-Yosef could do so and still

comply with airport security procedures and regulations, he did his

best to maintain direct contact with and control over his carry-on

case that contained the diamonds. Pursuant to the customary

practice of gem dealers, Ben-Yosef attempted to walk through the

magnetometer parallel to and in lock-step with the diamond case

while it was passing through the x-ray machine on a conveyor belt,

so that he would be separated from the case for the minimum

possible time and distance. Sumner testified that, but for

interference by Londono’s accomplice, Ben-Yosef would have remained

in very close proximity to the case and would have recovered it

immediately at the output end of the x-ray machine. Because he was

brought to a stand-still by the tactics of the accomplice, however,

Ben-Yosef was approximately ten feet from the case at the time it

was stolen, a distance described by Sumner as being “within a leap

and a grab.”

Londono had committed a murder in February, 1999. In the

month following his April theft of the diamonds, Londono was

arrested for the murder by Texas authorities, who had been tipped

off by an informant that Londono was involved in the diamond theft

as well as the homicide. Londono pleaded guilty to murder in Texas

state court and received a ten year prison sentence. Pursuant to

a writ of habeas corpus ad prosequendum, Londono was then delivered

into federal custody to answer for his theft of the diamonds.

3
 After Londono pleaded guilty to the federal theft charge, a

Presentence Investigation Report (PSR) was prepared in which the

probation officer recommended that (1) Londono’s base offense level

of four for theft be increased by 12 levels based on the value of

the stolen diamonds; (2) two more levels be added because the

offense involved more than minimal planning;1 and (3) an additional

two levels be added because the theft was from the person of

another. The PSR then recommended reduction of Londono’s offense

level by two for acceptance of responsibility. The result was a

recommended offense level of 18.

Londono’s criminal history points summed to eight, placing him

in the CHC of IV. His CHC was based in part on a California

conviction for commission of a crime for which Londono had been

arrested when he was sixteen years old.

Londono filed objections to the PSR, challenging (1) the two-

level enhancement for theft from the person of another, (2) the

inclusion of the California conviction in determining his CHC, (3)

any decision the district court might make to cause his federal

sentence to run consecutively to, rather than concurrently with,

the state sentence that he was then serving in Texas, and (4) any

decision by the court to return him to state custody instead of

retaining him in federal custody.

1
The enhancement for more than minimal planning, then
U.S.S.G. § 2B1.1(b)(4), has now been removed from the Guidelines
pursuant to a November 2001 amendment. See U.S.S.G. Appendix C,
Amendment 617.

4
 In an addendum to the PSR, the probation officer maintained

that the two-level enhancement for theft from the person of another

applied, noting that co-defendant Gomez had received the same

enhancement. As for the California conviction, the probation

officer acknowledged that the conviction should have been placed

under the juvenile adjudications section, rather than under adult

criminal convictions, but pointed out that the results would be the

same either way because the Sentencing Guidelines call for

inclusion of that conviction in Londono’s CHC calculation anyway.

Finally, the addendum deferred to the district court’s discretion

regarding the issues of consecutive sentencing and return to state

custody.

During the sentencing hearing (which was held, of course,

after the filing of the PSR, Londono’s objections, and the

addendum), counsel for Londono reiterated the same objections that

he had made in response to the PSR. The district court overruled

all objections and, after discussing each with counsel, sentenced

Londono to a 50 month term of imprisonment, (close to the top of

the calculated guideline range of 41 to 51 months). The court

specified that the federal sentence would run consecutively to the

unserved balance of Londono’s state imprisonment. Londono timely

appealed.

II. ANALYSIS

A. Theft from the Person of Another

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 A district court’s factual findings during sentencing must be

supported by a preponderance of the evidence; they are reviewed for

clear error.2 Although we have yet to decide if theft from the

person of another presents a question of law or fact, the Eighth

Circuit, in United States v. Jankowski,3 held it to be a factual

determination reviewed for clear error. Discerning no reason to

disagree with the Eighth Circuit’s analysis, we adopt that court’s

approach.

Londono contends that the district court’s application of §

2B1.1(b)(2)4 is clear error because, at the time that the diamond

case was snatched, it was neither being held by Ben-Yosef nor

within his reach. Application Note 1 to § 2B1.1 states in relevant

part:

“Theft from the person of another” means theft, without
the use of force, of property that was being held by
another person or was within arms’ reach. Examples
include pick-pocketing and non-forcible purse-snatching,
such as the theft of a purse from a shopping cart.5

The background comment to § 2B1.1 teaches that theft from the

person of another receives enhancement “because of the increased

2
United States v. Nevels, 160 F.3d 226, 229 (5th Cir. 1998)
(determining that district court’s finding that the theft was from
the person of another was not clearly erroneous).
3
194 F.3d 878, 885 (8th Cir. 1999).
4
At the time Londono was sentenced, § 2B1.1(b)(2) was the
“theft from the person of another” enhancement provision. In the
November 2001 amendments, that provision was moved to §
2B1.1(b)(3). U.S.S.G. Appendix C, Amendment 617.
5
U.S.S.G. § 2B1.1, n. 1 (emphasis added).

6
risk of physical injury” presented to the theft victim. Thus, the

announced purpose of this enhancement is to dissuade and punish the

kind of direct or near-direct physical interplay between the

perpetrator and the victim that has the potential of leading to the

injury or even the death of the victim. As with all criminal

statutes and rules, we must construe this sentencing provision

strictly and in the defendant’s favor.6

Here, the facts establish that Ben-Yosef was approximately ten

feet away from the diamond case at the moment of its theft. In

addition to linear separation, at least three impediments separated

Ben-Yosef from his property: Charry, the accomplice; the

magnetometer; and the x-ray machine.7 These facts alone are

sufficient to demonstrate that the diamonds were not “within arms’

reach” of Ben-Yosef when they were stolen. Although there was a at

least a possibility that he might have created a risk of injury by

pursuing the bag-snatcher, Gomez, if Ben-Yosef had observed Gomez

in the act, the risk contemplated by the background comment is not

of that type. Were it that extensive, the Guideline definition of

“arms’ reach” would be rendered meaningless; no matter how

attenuated the victim might be from the property, there is always

6
United States v. Haga, 821 F.2d 1036, 1038 (5th Cir. 1987).
7
Although Gomez, not Londono, actually snatched the carry-on
bag, “a defendant who is part of a jointly undertaken criminal
activity is accountable for all reasonably foreseeable acts...of
others in furtherance of the...activity.” Nevels, 160 F.3d at 229
(citations and internal quotations omitted).

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some possibility that, after the property is taken, the victim will

create a risk to himself by chasing or tracking down the thief.

The risk of injury contemplated by the subject guideline, however,

must result from a virtually contiguous, physical and temporal

interaction between victim and thief. The most attenuated example

of “theft from the person of another” provided in the guideline

commentary is that of theft of a purse from a shopping cart,

clearly an “arms’ reach” situation. The instant situation is

easily distinguishable from that of a person who for convenience

places her purse in a shopping cart and stays within arms’ reach of

the cart and the purse.

The familiar situation of the commercial airline passenger

being separated from his bag when negotiating a security checkpoint

is likewise distinguished from the shopping cart. Despite a

traveler’s best efforts, at the moment his bag starts through the

x-ray conveyer and he starts through the magnetometer, his visual,

temporal, and spatial connection with his carry-on items is lost.

In addition, a number of frequently occurring events beyond the

traveler’s control — such as setting off the magnetometer or being

subjected to a random security “wanding,” not to mention the same

kind of delays being experienced by passengers in line ahead of the

victim — further separate the traveler from his bag.

In addition to explicitly requiring the victim’s spatial

proximity to the purloined article, the guideline provision and the

commentary implicitly require that the victim be aware of the

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theft. Without awareness, the potential for victim injury, which

is the gravamen of this sentence enahancement, does not exist. In

the Ben-Yosef incident, his visual contact with, and physical

accessibility to, the diamond case were terminated momentarily by

the security procedure, eliminating the risk of personal danger

contemplated by the guideline.

Although no controlling precedent guides our analysis here,

the Eighth Circuit’s reasoning in Jankowski is persuasive. There,

the proximity of an armored car driver who was present in the

driver’s seat of the vehicle during the theft of federal security

deposits from the rear compartment, was held to be too attenuated

from the stolen goods to trigger the § 2B1.1(b)(2) enhancement.8

The driver was neither holding the security deposits nor within

arms’ reach of them when they were taken. In addition to his

linear distance from the deposits, the driver’s ability to reach

them was prevented by the presence of a bulkhead with a plexiglass

barrier located between him and the deposits at all relevant times.

We find this situation indistinguishable from that of Ben-Yosef,

who could not possibly have reached his case with an outstretched

arm and whose ten-foot separation from the diamonds was further

impeded by the presence of at least one person (Charry), a

magnetometer, and an x-ray machine.

The district court’s finding in this instance is

8
Jankowski, 194 F3d at 885-86.

9
irreconcilable with the plain wording of § 2B1.1(b)(2) and the

accompanying notes. Regardless whether we treat the district

court’s ruling as a matter of law and review it de novo or as a

factual determination and review it for clear error, we are left

with the distinct impression that it is wrong, leaving us no

alternative but to vacate Londono’s sentence and remand this matter

for resentencing without including a two-level increase for theft

from the person of another.

B. Inclusion of the California Conviction in CHC Calculation

Londono challenges the use of a California conviction as a

juvenile in the calculation of his CHC. He insists that the

government failed to offer reliable evidence to show that his

California conviction was valid. The record evidence demonstrating

the validity of the conviction is its presence in the PSR and the

probation officer’s testimony that she gathered information about

the conviction from a Texas “rap sheet” on Londono. He counters

that an unverified adult rap sheet is not the proper place for a

juvenile conviction to appear. Although somewhat unclear,

Londono’s argument appears to be that the PSR on which the district

court relied contained information extracted from an unreliable

source —— namely, the adult rap sheet.

As a defendant challenging the findings of the PSR, Londono

bears the burden of showing that the information in the PSR “cannot

be relied on because it is materially untrue, inaccurate, or

10
unreliable.”9 In general, the PSR bears “sufficient indicia of

reliability to be considered as evidence” by the district court,

“especially when there is no evidence in rebuttal.”10

Londono does not argue that the California conviction was not

valid or legitimate, or that it was materially untrue. He

contends, instead, that the court cannot use the juvenile

conviction because its only source appears to have been an

unverified adult rap sheet. He reasons that the district court

cannot include the conviction in the CHC calculation because the

evidence of its having been a juvenile court conviction —— the

vague testimony of the probation officer regarding another state’s

“rap” sheet —— is unreliable and therefore insufficient to justify

inclusion. Londono did not, however, adduce evidence or present

support from California penal law to bolster his bald assertion of

unreliability. Noting that many states have provisions for trying

juveniles as adults and that no evidence had been adduced to

demonstrate the invalidity or inapplicability of the conviction,

the court overruled Londono’s objection.

We agree with the court’s ruling on this point. Londono has

failed to carry his burden of showing unreliability; in fact, he

has produced nothing other than his conclusional contention to cast

doubt on the PSR’s findings. Under these circumstances, the

9
United States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991).
10
United States v. Hornsby, 88 F.3d 336, 339 (5th Cir. 1996).

11
district court was justified in relying on the PSR in calculating

Londono’s CHC.

C. Consecutive versus Concurrent Sentences

We review for abuse of discretion a district court’s decision

to make a federal sentence run consecutively to a state sentence.11

At sentencing, counsel for Londono first argued that the case fell

under Guideline § 5G1.3(b) which requires imposition of concurrent

sentences. When the court ruled that Londono’s case falls under §

5G1.3(c), making the decision discretionary, defense counsel urged

the trial court to make the federal sentence run concurrently to

Londono’s state sentence because of his young age and the 10-year

length of the state sentence.

On appeal, though, Londono takes an entirely different

approach, arguing that the trial court erred by not adequately

considering the sentencing factors detailed in 18 U.S.C. § 3553

when making the choice between consecutive or concurrent

sentencing. As Londono never raised this objection in the district

court, however, our review is for plain error only.12 Under this

standard, the error (1) must be clear or obvious, (2) must affect

the defendant’s substantial rights, and (3) seriously affects the

11
United States v. Richardson, 87 F.3d 706, 709 (5th Cir.
1996).
12
United States v. Izaguirre-Losoya, 219 F.3d 437, 441 (5th
Cir. 2000) (“The defendant, however, did not object to the district
court’s failure to explain the reason for its imposition of the
sentence as required under § 3553(c). Thus, our review is for plain
error only.”).

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fairness, integrity, or public reputation of the proceedings.13

The backdrop against which the district court imposed a

consecutive sentence reflects that at the time of his federal

proceedings, Londono had pled guilty to a murder charge in Texas

state court and was serving the undischarged balance of his 10-year

prison sentence there. He was brought to federal court from the

state prison pursuant to a valid writ of habeas corpus ad

prosequendum for the limited purpose of answering for his role in

the theft of the diamonds.14

The court’s decision to make Londono’s newly imposed federal

sentence run consecutively to his previously imposed and as yet

undischarged state term of imprisonment is governed by U.S.S.G. §

5G1.3(c). Application Note 3 to § 5G1.3 requires the court to

consider the factors set forth in 18 U.S.C. § 3584. Section 3584

directs the court to consider the factors detailed in 18 U.S.C. §

3553(a), which lists seven categories of concern, together with

accompanying subcategories, that a district court must take into

account when imposing a sentence. Section 3553(c) mandates that,

at the time of sentencing, the court “shall state in open court the

reasons for its imposition of the particular sentence....”

(emphasis added).

13
Id. (citations and internal quotations omitted)
14
After the district court imposed its sentence to run
consecutively instead of concurrently, he was returned to state
custody, as expressly required by that writ, to serve the remainder
of his state term before commencing to serve his federal sentence.

13
 True, the district court did not expressly mention either §

3584 or § 3553(a); it did, however, enter into an extensive

dialogue with defense counsel about the applicability of §

5G1.3(c), and it entertained all of counsel’s arguments regarding

the relevant sentencing factors. In addition, after the court’s

colloquy with defense counsel and the prosecutor, and before the

court denied Londono’s request for a concurrent sentence, it noted

that (1) the state murder charge was unrelated, (2) the defendant

appeared to have been on a crime spree, and (3) the instant offense

involved considerable money and planning.

We have previously held that the district court need not

rotely mention each of the factors in § 3553(a), or the statute

itself for that matter, to be in compliance with the dictates of §

3553(c).15 In fact, the proceedings in district court need only

“imply consideration of the § 3553(a) factors.”16 Here, the

district court’s protracted discussion of § 5G1.3 and its

explanation of some of the factors underpinning its decision to

make Londono’s sentence run consecutively to his state sentence

evinces consideration of § 3553(a). In the context of our

extremely deferential standard of review of the sentencer’s

election between consecutive or concurrent sentences, Londono has

failed to show plain error in the district court’s ruling on this

15
Richardson, 87 F.3d at 711.
16
Izaguirre-Losoya, 219 F.3d at 440.

14
point.

D. Return to State Custody

Londono also contends that the district court erred when it

returned him to state custody following the federal proceedings.

Londono’s argument fails. According to Causey v. Civiletti:

The law is clear in this Circuit that, if a defendant is
in state custody and he is turned over to federal
officials for federal prosecution, the state government’s
loss of jurisdiction is only temporary. The prisoner
will be returned to state custody at the completion of
the federal proceedings or the federal sentence if the
federal government wishes to execute it immediately. A
writ of habeas corpus ad prosequendum is only a “loan” of
the prisoner to another jurisdiction for criminal
proceedings in the receiving jurisdiction.17

Moreover, having violated both federal and state criminal laws,

Londono “may not complain of the order in which he is tried or

punished for such offenses.”18 Again, the writ of habeas corpus ad

prosequendum pursuant to which Londono was brought to the district

court expressly required that he be returned to state custody after

the federal proceedings were completed. The district court’s

decision to return Londono to state custody is free of error.

III. CONCLUSION

For the foregoing reasons, Londono’s sentence is vacated and

remanded for the sole purpose of resentencing without including an

enhancement under § 2B1.1(b)(2).

17
621 F.2d 691, 693 (5th Cir. 1980)
18
Id. at 694 (citations and internal quotations omitted).

15
VACATED and REMANDED for resentencing.

16