United States v. McMinn

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1592

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT MCMINN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Torruella, Chief Judge,

Cyr* and Boudin, Circuit Judges.

Matthew J. Lahey, with whom McLaughlin, Hemeon & Lahey, P.A. was

on brief for appellant.
Jean B. Weld, Assistant United States Attorney, with whom Paul M.

Gagnon, United States Attorney, was on brief for appellee.

January 13, 1997

*Cyr, J., was not present at oral argument.

CYR, Circuit Judge. Appellant Robert McMinn mounts
CYR, Circuit Judge.

four challenges to the sentence imposed following his conviction

on several felony counts relating to his acquisition, interstate

transportation, and sale of stolen audio and video components.

See 18 U.S.C. 371, 2314 & 2315. As the sentence enhancement

imposed pursuant to U.S.S.G. 2B1.1(b)(4)(B) for engaging "in

the business of receiving and selling stolen property" ("ITB"

enhancement) constituted error, we vacate the district court

judgment and remand for resentencing.

I
I

DISCUSSION
DISCUSSION

A. Upward Departure (U.S.S.G. 4A1.3)
A. Upward Departure (U.S.S.G. 4A1.3)

The district court granted the government's motion for

an upward departure under U.S.S.G. 4A1.3 (1995), from a Total

Offense Level ("TOL") of 18 and a Criminal History Category

("CHC") of III, to TOL 20 and CHC VI, on the ground that CHC III

would have underrepresented the seriousness of McMinn's prior

criminal conduct and the likelihood of recidivism. McMinn

contends that the three affidavits relied upon by the district

court for its departure-related findings were not reliable.1

First, the district court did not place principal

reliance on the challenged affidavits for its factual findings

1We review factual findings for clear error, see United

States v. Shrader, 56 F.3d 288, 292 (1st Cir. 1995), mindful that

the sentencing court is vested with "wide discretion" to deter-
mine whether sentencing information is reliable. Id. at 294.

2

relating to the seriousness of McMinn's prior criminal conduct.2

Moreover, though McMinn claims that the affidavits were uncorrob-

orated, and the affiants untrustworthy, he chose not to cross-

examine one of the affiants at sentencing. In addition, he had

cross-examined the other two affiants at the earlier trial on

drug-conspiracy charges before the same judge. See supra note 1.

Finally, the district court was presented with unchallenged

police reports, describing various burglaries and corroborating

other information in the affidavits. See United States v.

Shrader, 56 F.3d 288, 294 (1st Cir. 1995). There was no clear

error.

B. Obstruction of Justice Enhancement (U.S.S.G. 3C1.1)
B. Obstruction of Justice Enhancement (U.S.S.G. 3C1.1)

Second, McMinn challenges a two-level enhancement for

obstruction of justice, see U.S.S.G. 3C1.1, based on threaten-

ing letters he sent in February, April and October of 1995 to

Steven Serfass, a prospective government witness. McMinn argues

that Serfass was not connected with the investigation, prosecu-

tion, or sentencing of the "instant" offenses involving inter-

state transportation, receipt, and sale of stolen audio and video

2Rather, the upward departure decision was based upon the
following considerations as well:
(1) five felony drug convictions entered June 13, 1989, and
six convictions based on criminal conduct occurring between 1990
and 1994, which were not taken into account in calculating the
CHC;
(2) an uncharged burglary;
(3) an uncharged conspiracy to distribute large quantities
of marijuana between 1987 and 1995; and, finally,
(4) the fact that McMinn was on bail when he committed the
stolen-property offense, and had also violated parole and commit-
ted various other infractions, including drug use, while incar-
cerated.

3

components, since Serfass neither testified, nor were the threat-

ening letters admitted, at the trial on these charges. Instead,

Serfass testified at an earlier trial on drug charges which were

severed from the stolen-property charges on June 20, 1995. As

the enhancement for obstruction of justice under U.S.S.G. 3C1.1

applies only to obstructing an "investigation, prosecution, or

sentencing of the instant offense," McMinn claims that the

district court erred as a matter of law in concluding that

conduct unconnected with the stolen-property charges could

support the enhancement. We find no error.

At the time McMinn mailed the threatening letters,

Serfass remained a prospective government witness in relation to

the "instant offense"; i.e., the stolen-property charges. It was

not until January 1996, immediately prior to the trial on the

stolen-property charges, that it became clear that Serfass would

not testify. Thus, there was no error in the district court's

determination that McMinn attempted to obstruct the prosecution

of the stolen-property charges by mailing the threatening let-

ters. C. ITB Enhancement (U.S.S.G. 2B1.1(b)(4)(B)(1995))
C. ITB Enhancement (U.S.S.G. 2B1.1(b)(4)(B)(1995))

Third, McMinn contends that the district court erred in

imposing a four-level ITB enhancement under U.S.S.G.

2B1.1(b)(4)(B) (1995). Relying primarily on United States v.

Braslawsky, 913 F.2d 466, 468 (7th Cir. 1990), he argues that an

ITB enhancement is impermissible unless the defendant was in the

business of receiving and selling property stolen by others

(i.e., in the business of "fencing" stolen property). The

4

district court ruling that McMinn's criminal conduct came within

the ITB enhancement guideline is reviewed de novo. See United

States v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992).

The four-level ITB enhancement guideline, by its

express terms, applies only if "the offense involved receiving

stolen property, and the defendant was a person in the business

of receiving and selling stolen property." U.S.S.G.

2B1.1(b)(4)(B) (emphasis added). Thus, on its face at least, the

ITB guideline does not apply to a defendant who makes a business

of stealing property; that is, a professional "thief," as distin-

guished from a professional fence. See Braslawsky, 913 F.2d at

468 (holding that, by its terms, the ITB enhancement does not

apply to a professional thief).

Under the common-law tradition, stealing property from

another normally does not equate with "receiving" property from

its rightful owner. See Milanovich v. United States, 365 U.S.

551, 558 (1961) (Frankfurter, J., dissenting) ("a thief cannot be

charged with committing two offenses that is, stealing and

receiving the goods he has stolen[,] . . . for the

commonsensical, if not obvious, reason that a man who takes

property does not at the same time give himself the property he

has taken.") (citations omitted); Baugh v. United States, 540

F.2d 1245, 1246 (4th Cir. 1976) ("logic . . . instructs us that

there is an inherent inconsistency in treating a taking as a

receipt"); see also United States v. Trzcinski, 553 F.2d 851, 853

(3d Cir. 1976), cert. denied, 431 U.S. 919 (1977). Therefore,

5

statutes which criminalize "receiving" are generally not thought

to target the thief himself, but the wrongdoer who knowingly

acquires the loot from or through the thief. See, e.g.,

Milanovich, 365 U.S. at 729-730; Heflin v. United States, 358

U.S. 415, 419-20 (1959); United States v. Washington, 861 F.2d

350, 352 (2d Cir. 1988). Thus, a fair reading of the plain

language employed in section 2B1.1(b)(4)(B) strongly suggests

that a defendant engaged in selling only the property he is

responsible for stealing has not "received" it in the sense

contemplated by the Sentencing Commission.

Should there be any doubt about the plain language, the

parallel development of the sentencing guideline governing thefts

of property, see U.S.S.G. 2B1.1, and the guideline on receiving

stolen property, see id. 2B1.2, together with the evolution of

the language employed in the ITB enhancement guideline itself,

see id. 2B1.1(b)(4)(B), tend to confirm that the Commission

envisioned that "theft" alone not constitute a "receiving" of

stolen property for these purposes. Under the original Sentenc-

ing Guidelines, U.S.S.G. 2B1.1 (1987) governed "Larceny,

Embezzlement and Other Forms of Theft," whereas U.S.S.G. 2B1.2

(1987) governed "Receiving Stolen Property." The offense of

receiving stolen property was subject to an ITB enhancement, see

U.S.S.G. 2B1.2(b)(2)(A) (1987) ("If the offense [i.e. receiving

stolen property] was committed by a person in the business of

selling stolen property, increase by 4 levels.") (emphasis

added), which clearly applied to the professional fence and not

6

to a defendant who simply sold property he pilfered. See id.

2B1.2, comment (backg'd) (1987) ("Persons who receive stolen

property for resale receive a sentence enhancement . . . .")

(emphasis added);3 Braslawsky, 913 F.2d at 468. The guideline

governing theft crimes included no corresponding ITB enhancement.

See U.S.S.G. 2B1.1 (1987).

The disjunctive treatment required under these two

guideline sections clearly implied that the Commission did not

intend that the ITB enhancement apply to defendants responsible

only for the theft of the ill-gotten property and not its "re-

sale." See supra note 3. At the time the Sentencing Guidelines

were promulgated, the Commission consistently demonstrated its

intention that like enhancements be applicable to both "theft"

and "receipt" offenses by including a parallel enhancement

3The Commission's choice of the word "resale" vividly
suggests a prior sale (by the thief to the fence) conspicuously
lacking between the rightful owner and the thief. Thus, the
commentary provides authoritative definition to the scope of the
original ITB enhancement. See Stinson v. United States, 508 U.S.

36, 38 (1993) (" . . . commentary in the Guidelines Manual that
interprets or explains a guideline is authoritative unless it
violates the Constitution or a federal statute, or is inconsis-
tent with, or a plainly erroneous reading of, that guideline.").
The background commentary to U.S.S.G. 2B1.2 was deleted at the
time U.S.S.G. 2B1.2 was consolidated into U.S.S.G. 2B1.1.
See U.S.S.G. 2B1.1, as amended by amendment 481 (effective Nov.

1, 1993). But though there is no longer any commentary on the
ITB enhancement, see United States v. Richardson, 14 F.3d 666,

674 (1st Cir. 1994), neither is there any reason to believe that
consolidation of the two original guideline sections, and the
consequent deletion of the background commentary, was meant to
alter the scope of the ITB enhancement. Rather, along with the
consolidation and deletion of 24 other guideline sections, the
Commission consolidated 2B1.2 with 2B1.1 because the offenses
were closely related and the Commission wanted to simplify the
Guidelines Manual. See U.S.S.G. App. C, amend. 481 (1995).

7

provision in each guideline. See id. 2B1.1(b)(2); 2B1.2(b)(3)

(1987) (parallel enhancements relating to stealing and receiving

(stolen) firearm, destructive device or controlled substance);

id. 2B1.1(b)(4); 2B1.2(b)(2)(B) (1987) (parallel enhancements

for more than minimal planning relating to stealing and receiving

(stolen) property); id. 2B1.1(b)(6); 2B1.2(b)(4) (1987)

(parallel enhancements for engaging in organized criminal activi-

ty relating to stealing and receiving (stolen) property); see

also U.S.S.G. App. C, amend. 117 (effective Nov. 1, 1989) (adding

ITB enhancement to U.S.S.G. 2B6.1 trafficking in motor

vehicles with altered or obliterated identification numbers

"to resolve an inconsistency between . . . section [2B6.1] and

2B1.2").

The subsequent evolution of the ITB enhancement guide-

line likewise substantiates that it was meant to cover the

professional fence, not the thief. As the Commission broadened

the scope of U.S.S.G. 2B1.2 ("Receiving Stolen Property"), the

language in the ITB enhancement itself was amended to retain its

narrow focus upon defendants who "fence" stolen goods. The

"Receiving Stolen Property" guideline was amended in 1989 to

cover "Transporting, Transferring, Transmitting, or Possessing

Stolen Property." U.S.S.G. 2B1.2, as amended by amend. 102

(effective Nov. 1, 1989). Under the same amendment, the ITB

enhancement guideline was changed to read, "[i]f the offense was

committed by a person in the business of receiving and selling

stolen property, increase by 4 levels." Id. 2B1.2(b)(3)(A)

8

(1989) (emphasis added to amendatory language). Thus, it is

apparent from the context that the words "receiving and" were

included so as to restrict application of the ITB enhancement to

defendants who receive and sell stolen property (i.e. profession-

al fences) and to exclude from its reach others, including the

thief, who transport, transfer, transmit, or possess, and then

sell, stolen property.

In 1993, the separate guideline provisions governing

theft offenses and the receiving of stolen property were consoli-

dated. See U.S.S.G. 2B1.1 as amended by amend. 481 (effective

Nov. 1, 1993). The same 1993 amendment introduced the language

currently found in the ITB enhancement guideline, prescribing a

four-level enhancement "[i]f the offense involved receiving

stolen property, and the defendant was a person in the business

of receiving and selling stolen property." Id. 2B1.1(b)(5)(A)

(1993) (emphasis added to amendatory language).

The historical context in which the 1993 amendment was

adopted thus demonstrates that the reconstructed ITB enhancement

was designed to apply only to defendants who "received" stolen

property and whose offense of conviction would come within the

scope of former U.S.S.G. 2B1.2 ("Receiving Stolen Property"),

as opposed to defendants who pilfered the property and whose

offense of conviction therefore came within the scope of the

original version of U.S.S.G. 2B1.1. It seems reasonably clear,

therefore, viewed in an historical perspective, that the words

9

"receiving and" were added to preserve the limited reach of the

ITB enhancement.

On the other hand, the interpretation propounded by the

government presumes that the Commission twice amended the ITB

enhancement so as to make it applicable only to defendants who

"receive" stolen property, yet intended the term "receiving" to

mean merely "taking possession of," thereby encompassing simple

theft. Though as a literal matter, without regard to its histor-

ical context, the term "receiving" does not necessarily exclude

"theft," we conclude that the references to defendants who

"receive and sell" stolen property were not meant to apply to a

defendant who simply sells only property he has stolen.

Our construction is guided by conventional interpretive

principles. See United States v. DeLuca, 17 F.3d 6, 10 (1st Cir.

1994) (applying customary rules of statutory interpretation to

sentencing guidelines). It avoids interpreting the words "re-

ceiving and" out of the ITB enhancement guideline as surplusage.

See United States v. Campos-Serrano, 404 U.S. 293, 301 n.14

(1971) ("A statute ought, upon the whole, to be so construed

that, if it can be prevented, no clause, sentence, or word shall

be superfluous, void, or insignificant."). Whereas, were we to

adopt the government's view that the language in the current

ITB enhancement ("in the business of receiving and selling stolen

property") reaches both the thief and the professional fence

then the language of the original ITB enhancement ("in the

10

business . . . of selling stolen property") need never have been

amended in 1989.

Our interpretation comports with basic guideline

sentencing policy as well. See 18 U.S.C. 3553(a)(1),(2)

(A),(B),(C)&(5). The services of a professional fence undoubted-

ly facilitate the ready, advantageous disposition of property

stolen by the less well-situated thief, thereby providing a

significant inducement to commit theft offenses. See United

States v. Sutton, 77 F.3d 91, 94 (5th Cir. 1996); Braslawsky, 913

F.2d at 468; United States v. Bolin, 423 F.2d 834, 838 (9th

Cir.), cert. denied, 398 U.S. 954 (1970); Carl Klockars, The

Professional Fence 144 (1974) (discussing the adage, "if there

were no receivers, there would be no thieves"). It is reasonable

to assume, as a general rule, that a professional fencing opera-

tion efficiently can dispose of greater quantities of stolen

goods than could the individual thieves who supply the profes-

sional fence, see Klockars at 69-135, thereby enabling both the

thieves and the fence to realize greater returns. Cf.

Braslawsky, 913 F.2d at 468. Thus, as a rule professional fences

may be expected to induce more stealing.

Furthermore, the interposition of a sophisticated

fencing operation between the thief and the ultimate purchaser of

the stolen property may confound or obstruct the investigation

and prosecution of theft offenses. Often, the stolen property

itself may be the only tangible evidence connecting the thief to

the crime. Since the professional fence is better positioned to

11

move stolen goods quickly into the hands of the ultimate "black

market" consumer, see Klockars at 77 n.2, 106-13, the loot is

more likely to be dispersed before law enforcement agencies can

respond. Consequently, the fence not only affords the thief a

less risky and more efficient alternative for disposing of the

booty, but the increased efficiency comes at the expense of

effective law enforcement.4

The government argues, nonetheless, that the ITB

enhancement guideline should be construed simply to require proof

that McMinn's sales of stolen goods had a certain regularity or

sophistication. Cf. St. Cyr, 977 F.2d at 703 (adopting a "total-

ity of the circumstances" test). For the reasons stated above,

we reject the government's interpretation as less consistent with

the language, history, and purpose of the ITB enhancement guide-

line.5 We think it important to point out that our

opinion in St. Cyr does not support the position advocated by the

4These considerations represent an especially serious hin-
drance to law enforcement when the professional fence utilizes a
legitimate "front," such as a pawn shop or an outlet dealing in
distressed goods at sharply lower prices. See United States v.

Robinson, 698 F.2d 448, 453 (D.C. Cir. 1983); Klockars at 69-135.

The "front" may afford a superficially valid justification for
the low sale prices (i.e. the goods were pawned to the "front" or

acquired as distressed goods) and thus serve to impede an infer-
ence that the fence knew the goods were stolen.

5Nor is the caselaw in other circuits inconsistent with the
requirement that the defendant must be a "fence" in order for the
ITB enhancement to apply. See, e.g., Sutton, 77 F.3d at 94;

United States v. Zuniga, 66 F.3d 225, 229 (9th Cir. 1995); United

States v. Warshawsky, 20 F.3d 204, 214-15 (6th Cir. 1994);

United States v. King, 21 F.3d 1302, 1303 n.2 (3d Cir. 1994);

United States v. Esquivel, 919 F.2d 957, 959 (5th Cir. 1990); see

also St. Cyr, 977 F.2d at 703.

12

government. St. Cyr neither expressed nor implied disapproval of

the basic proposition that the ITB enhancement guideline should

apply only to "professional fences." See id. at 703 ("We think

this assessment fits harmoniously . . . with the decisions of

those few circuit courts that have addressed the meaning of [the

ITB guideline]."). Rather, the St. Cyr panel observed that a

"professional fence" test is not particularly helpful. Id. at

702-03 ("Defining the term 'professional fence' is as chancy as

defining the language of the guideline itself."). Although the

"totality of the circumstances" test announced in St. Cyr did

define the term "in the business," the court never reached the

question squarely presented here; viz., whether a defendant need

have been in the business of "receiving and selling" stolen

property (i.e. acting as a fence) in order for the ITB enhance-

ment to apply. See also United States v. Richardson, 14 F.3d

666, 675 (1st Cir. 1994) ("evidence . . . clearly demonstrates

that defendant was a fence"); cf. United States v. Tutiven, 40

F.3d 1, 8 (1st Cir. 1994) ("As it was stipulated that Tutiven did

not steal the motor vehicles . . . logic pretty much compels the

conclusion that Tutiven knowingly 'received stolen property.'"),

cert. denied, 115 S. Ct. 1391 (1995).

The government in our case points to substantial

evidence that McMinn engaged not only in extensive thievery but

in storing and disseminating stolen property as well. Nothing

prevents a professional thief from also conducting a fencing

operation of sufficient size and continuity to qualify for the

13

ITB enhancement; criminals, too, may have more than one line of

business. For the reasons we have already indicated, however, a

thief would not qualify for the ITB enhancement if the only goods

he distributed were those which he had stolen.

There is nothing in the government's analysis or in the

district court's findings to indicate that McMinn sold property

which he had not stolen. Of course, since reasonable inferences

are always permitted, the case might be quite different if the

only evidence were that McMinn had stored and sold large quanti-

ties of stolen property. Here, however, the evidence revealed

that McMinn had stolen a great deal of property and, as the

record now stands, we have no basis to suppose that he did not

steal it all.

Finally, the government argues in the alternative that

McMinn should be treated as a professional fence because he

neither proffered evidence, nor admitted, that he had pilfered

all the stolen goods he sold. Since it is the government's

burden to prove that McMinn received and sold goods stolen by

others, however, its argument is fundamentally flawed. See St.

Cyr, 977 F.2d at 702 ("the government bears the burden of estab-

lishing that the ITB enhancement applies in a given case").6

II
II

CONCLUSION
CONCLUSION

6As the ITB enhancement is inapplicable to McMinn, it is
unnecessary to resolve the "double counting" claim; that is,
whether it was appropriate to consider the same criminal conduct
in determining the upward departure and the ITB enhancement.

14

For the foregoing reasons, the district court judgment

is vacated and the case is remanded for resentencing consistent

with this opinion.

15