UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1900
UNITED STATES,
Appellee,
v.
NELSON CRUZ-SANTIAGO,
Defendant, Appellant.
No. 92-1917
UNITED STATES,
Appellee,
v.
EDGAR ARCE-RAMOS,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
Before
Breyer, Chief Judge
Coffin, Senior Circuit Judge,
and Torruella, Circuit Judge.
Rachel Brill with whom Norberto Colon, By Appointment of the
Court, was on joint brief for appellants.
Edwin O. Vazquez, Assistant United States Attorney, with whom
Charles E. Fitzwilliam, United States Attorney, and Jose A. Quiles-
Espinosa, Senior Litigation Counsel, Criminal Division, were on brief
for appellee.
December 22, 1993
BREYER, Chief Judge. Appellants Arce Ramos and
Cruz Santiago, convicted bank robbers, raise one question in
respect to their sentencing. They say that the sentencing
court should not have counted, as a robbery-related "loss"
for sentencing purposes, the value of a car, a Nissan
Sentra, that the robbers seized at gunpoint outside the bank
and drove from the scene of the crime to a second getaway
car. We think the district court was correct to include the
value of the car in calculating the loss, and we therefore
affirm.
The appellants concede the basic facts. Arce
Ramos, along with two other persons, entered a bank, took
$6,160, shot the assistant manager, ran outside the bank,
saw a Nissan Sentra that happened to be passing by, forced
its innocent driver out of the car, and drove off to a
rendezvous point. A private security guard, who had
followed the bank robbers, saw them park the Sentra and get
into a yellow Volkswagen, where two confederates (including
appellant Cruz Santiago) were waiting. All five then drove
off in the Volkswagen, in which the police later found, and
arrested, them.
The sentencing court noted that the relevant
guideline, the robbery guideline, determines a sentence
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partly on the basis of a monetary loss table, which
instructs the court to increase the offense level by "one
level" if the loss was more than $10,000 but not more than
$50,000. U.S.S.G. 2B3.1(b)(6)(B). The court added that
one level because it added the Sentra's $4,000 value to the
$6,160 taken in the robbery, yielding a total "loss" of just
over $10,000. The appellants argue that the court ought not
to have included the Sentra's value in this calculation;
and, they say, the court would have (though it need not
have) imposed a lesser sentence had the final offense level
been lower by one. Because the court did not say that it
would have picked the same sentence from the lower (but
overlapping) sentencing range, we assume that the difference
in calculation would have made a difference to the sentence.
And, we proceed to consider appellants' argument. See
United States v. Ortiz, 966 F.2d 707, 717-18 (1st Cir.
1992), cert. denied, 113 S. Ct. 1005 (1993); cf. United
States v. Concemi, 957 F.2d 942, 952-53 (1st Cir. 1992).
The appellants' argument is a simple one. They
note that the robbery guideline Commentary tells the court
that "[v]aluation of loss is discussed in the Commentary" to
the guideline entitled "Larceny, Embezzlement and Other
Forms of Theft." They concede that this latter guideline
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defines "loss" as including "the value of property taken."
U.S.S.G. 2B1.1, comment. (n.2) (emphasis added). And,
they concede that they took the Sentra. But, in their view,
the court must read the word "taken" as embodying a special
meaning, derived from the common law definition of
"larceny," namely, "taken with intent permanently to
deprive." And, they say they did not intend to deprive its
owner of his Sentra permanently. (After all, they parked it
before they got into the yellow Volkswagen.) For this
reason, they conclude, the "loss" was $6,160, not $10,160.
We disagree with appellants. For one thing, on
their own reasoning, the facts offer sufficient support of
the district court's apparently implicit conclusion that the
Sentra's taking met most criminal law definitions of
"larceny." Although there is some dispute among authorities
whether common law larceny requires an intent permanently to
deprive an owner of his property, see S. Rep. No. 307, 97th
Cong., 1st Sess. at 714 (1981), it has long been the case
that "if one takes another's property intending to use it
recklessly and then abandon it, the obstacles to its safe
return are such that the taker possesses the required intent
to steal." 2 Wayne R. LaFave & Austin W. Scott, Jr.,
Substantive Criminal Law 8.5, at 360-61 (1986).
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Some states say that a defendant who is
indifferent or reckless in respect to an owner's recovery of
property is "willing" to have the owner lose his property
permanently, and, for that reason, "the wrongdoer may
appropriately be held to entertain specific intent that the
deprivation to the owner be permanent." State v. Gordon,
321 A.2d 352, 358 (Me. 1974); see also State v. Webb, 308
S.E.2d 252, 256-57 (N.C. 1983) (defendant's actions would
leave owner's recovery "to mere chance and thus constitute
such 'reckless exposure to loss' that it is consistent only
with an intent permanently to deprive the owner of his
property" (quoting State v. Smith, 150 S.E.2d 194, 200 (N.C.
1966)).
The criminal codes in other states define larceny
(or theft) to include an "intent to deprive," and then
define "deprive" as including disposition of property in a
way that makes it unlikely that the owner will recover it.
See, e.g., Conn. Gen. Stat. 53a-118(a)(3); Mont. Code Ann.
45-2-101(19)(d); N.Y. Penal Law 155.00[3]; Tex. Penal
Code Ann. 31.01(3)(C); see also Model Penal Code
223.0(1).
Thus, courts often find the requisite "larcenous"
intent where the evidence shows no more than the abandonment
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of property under circumstances that make the owner's
recovery unlikely. See, e.g., State v. Piscattano, 352 A.2d
783, 785 (Conn. Super. Ct. 1976) (factfinder may conclude
recovery not likely when car left on street with keys in
car); Brown v. State, 804 S.W.2d 566, 570 (Tex. Ct. App.
1991) (jury may find "intent" permanently to deprive where
defendant parked and abandoned vehicle in vacant lot with
windows down); see also State v. Ward, 10 P. 133 (Nev. 1886)
(factfinder may find larceny when defendant abandoned horses
12 miles from home, though they walked back to their barn).
The robbers here, at the time they first took the
Nissan, subjected it to significant, known risks that the
owner would not recover it. As the sentencing court pointed
out, the robbers might have "had an accident" in a high
speed chase, "crashed the car," or the car might have "been
riddled by bullets" shot by pursuing police. The robbers
abandoned the car, on the street, some distance from the
bank. To take a car unlawfully, knowing (and thereby
intending) that it be subject to these risks of further
destruction and theft would seem to amount to acting with
sufficient conscious disregard in respect to the risk of
eventual non-recovery that a trier of fact might find
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traditional (larcenous) theft. See, e.g., Piscattano, 352
A.2d at 785.
Regardless, the Guidelines do not limit the
Commentary's word "taken" to circumstances involving a
"permanent" deprivation of property. The Commentary relates
to an entire guideline, the title of which makes clear its
application, not only to larceny, but also to "embezzlement"
and to "other forms of theft." Embezzlement need not
involve an intent to deprive permanently. See, e.g., United
States v. Anderson, 850 F.2d 563, 565 (9th Cir. 1988)
(intent to deprive permanently is not an element of
embezzlement); United States v. Shackleford, 777 F.2d 1141,
1143 (6th Cir. 1985) (same), cert. denied, 476 U.S. 1119
(1986); United States v. Waronek, 582 F.2d 1158, 1161 n.4
(7th Cir. 1978) (same). Nor is there a "permanent
deprivation" requirement found in respect to such "other
forms of theft," as "joyriding," which the law of Puerto
Rico, like that of several states, criminalizes along with
larceny and without distinction. See P.R. Laws Ann. tit.
22, 4272 (theft statute similarly prohibits permanent and
temporary deprivations); Ga. Code Ann. 16-8-1(1) (same);
S.D. Codified Laws Ann. 22-1-2(12) (same); Wash. Rev. Code
9A.56.020(1) (same); cf. Brown v. Ohio, 432 U.S. 161, 163-
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64 (1977) (discussing state law that regarded joyriding as a
lesser included offense of larceny); State v. Reeves, 342
So. 2d 605, 608 (La. 1977) (same); Commonwealth v. Giannino,
358 N.E.2d 1008, 1010 (Mass. 1977) (same); Model Penal Code
art. 223, 223.9 (discussing unauthorized use of motor
vehicles in section on "Theft and Related Offenses"); see
also United States v. Deggs, 632 F.2d 829, 831 (9th Cir.
1980) (discussing 18 U.S.C. 1707, referred to by the theft
guideline, as a "joyriding" statute that requires no intent
to deprive permanently); United States v. Henry, 447 F.2d
283, 284-85 (3d Cir. 1971) (discussing 18 U.S.C. 661 as a
theft statute that requires no intent to deprive
permanently); S. Rep. No. 307, 97th Cong., 1st Sess. at 714
(1981).
We recognize that the Guidelines' similar
treatment of permanent and temporary takings means that an
offender's punishment will reflect the full value of a
"taken" car returned to its owner undamaged. But, we have
no doubt that the Guidelines intend this result. They
specifically provide that "loss is the value of the vehicle
even if the vehicle is recovered immediately." The reason
is that the Guidelines here are concerned with punishment,
not restitution; and, they consequently focus on the fact
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that the offender's behavior created a significant risk of
loss -- a risk that existed whether or not the property
owner eventually suffered harm. See, e.g., United States v.
Brach, 942 F.2d 141, 143 (2d Cir. 1991); United States v.
Cockerham, 919 F.2d 286, 289 (5th Cir. 1990); United States
v. Parker, 903 F.2d 91, 105 (2d Cir.), cert. denied, 498
U.S. 872 (1990). We cannot say the Guidelines are
unreasonable in keying punishment to risk of serious loss.
And, in this case, both temporary loss and a significant
risk of serious (permanent) loss are present.
For these reasons, the judgment of the district
court is
Affirmed.
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