United States v. Pando
Opinion of the Court
Without a plea agreement, defendant Michael J. Pando (“defendant”) pleaded guilty to one count of aiding and abetting the interstate transportation of stolen property in violation of 18 U.S.C. § 2314 and 18 U.S.C. § 2. The district court sentenced defendant to twenty-two months of imprisonment followed by two years of supervised release. Pando appeals only the district court’s assessment of a two-point enhancement under then-existing United States Sentencing Guidelines (“U.S.S.G.”) § 2B1.1(b)(4)(A) for a crime involving more than minimal planning.
I. Background
On October 17, 2000, officers with the Taylor, Michigan, police department observed defendant and his co-defendant, William McMullen (“McMullen”), enter a pick-up truck, leave a motel in Dearborn, Michigan, and arrive at a house in Detroit, Michigan.
McMullen admitted that he had loaded the pick-up truck with the stolen merchandise with the intent of driving to Detroit to attempt to sell it there. McMullen conceded that he had placed the jewelry in the “unusual” location of a toolbox in the back of the pick-up truck. Defendant admitted that he had handled the stolen merchandise, that he had helped drive the truck to Michigan, and that he expected to benefit from a percentage of the proceeds from the sale of the merchandise.
Defendant and McMullen were former employees of Service Merchandise stores in Florida. Indeed, McMullen had been a jewelry manager at the Leesburg, Florida, Service Merchandise store, which had been burglarized on October 4, 1998, in a manner similar to the burglary of the Ocala store. Defendant had a significant history of pawning jewelry and other items in Florida. Defendant had pawned jewelry that matched jewelry stolen from the Leesburg Service Merchandise store.
The district court assessed defendant the two-level enhancement under U.S.S.G. § 2B 1.1(b) (4) (A) based upon the following: 1) there was no explanation for why defendant chose to transport the stolen jewelry to Michigan and sell it there, rather than one of the closer metropolitan areas; 2) even if Service Merchandise had individually packaged the jewelry, it had not composed the list, which catalogued only that jewelry present in the truck and not all of the jewelry stolen from the Ocala store; 3) the list cataloguing and pricing the stolen jewelry bore handwriting similar to defendant’s; 4) the trip was “far more than a quick trip across ... state lines to fence the items in an adjoining jurisdiction” because the trip spanned two days traveling to Michigan and a portion of another day in Michigan, and defendant, once in Michigan, was actively involved in an apparent effort to sell the jewelry; and 5) the length of the trip required defendant to take time away from his regular activities. The district court concluded that defendant’s commission of the offense of interstate transportation of stolen property was more than a simple, opportunistic event, but involved more effort and more planning than is typical for its commission in its simplest form.
II. Analysis
We review a district court’s interpretation of a sentencing guideline de novo, United States v. Adu, 82 F.3d 119, 124 (Qth Cir. 1996), and its factual determinations underlying an application of a sentencing guideline for clear error. United States v. Jackson-Randolph, 282 F.3d 369, 390 (6th Cir. 2002). We review for clear error a district court’s application of a sentence enhancement for a crime involving “more
U.S.S.G. § 2B1.1(b)(4)(A) provides for a two-level sentence enhancement “[i]f the offense involved more than minimal planning.”
Defendant contends that his commission of the offense of interstate transportation of stolen property involved no more planning than is typical for the commission of that offense in its simplest form, no repeated acts over a period of time, or affirmative steps to conceal the offense. As to the first factor of whether the crime was committed in its simplest form, the factor upon which the district court relied, defendant contends that the offense simply involved defendant getting in a pickup truck in Ocala, Florida, and taking Interstate 75 all the way to Michigan, and that this simple crime could not have involved anything more than minimal planning. Defendant maintains that the record is devoid of any evidence of planning, let alone more than minimal planning. In support, defendant underscores that the district court was “left to speculate” that defendant had to have taken off from his normal activities to take the trip. Defendant also points out that the offense of conviction is for interstate transportation of stolen property, not for either the theft or disposal of that property.
The following elements comprise a violation of 18 U.S.C. § 2314: 1) transporting or causing the transportation, 2) in interstate commerce, 3) of property valued at $5,000 or more, 4) with knowledge that it has been stolen, converted, or fraudulently taken from its rightful owner. United States v. Monus, 128 F.3d 376, 384 (6th Cir. 1997). To violate this statute, one need not know the value of the property— that it is over $5,000—or that the property is being transported in interstate commerce. United States v. Kierschke, 315 F.2d 315, 317 (6th Cir. 1963). Thus, the simplest form of this crime might comprise a scenario like the following: a defendant opportunistically steals some property, or buys it from someone he sees stealing it, and then sells the property at the first pawn shop on the other side of the state line.
Here, however, the evidence supports the district court’s finding that defendant’s offense of the interstate transportation of stolen goods involved more than minimal planning. First, the record evidences planning and preparation for the sale of the stolen jewelry in Michigan. Defendant admitted that he and McMullen had transported the jewelry from Florida to Michigan with the intent of selling it there. Given this admission, it is especially likely that the list cataloguing the stolen jewelry by description and price, written in handwriting similar to defendant’s, was to serve
Second, the record evidences planning and preparation for the transportation of the high-end jewelry, valued at approximately $700,000. McMullen admitted that he had placed the jewelry in the “unusual” location of a toolbox in the back of the pick-up truck. Presumably, McMullen did so to conceal the jewelry and to transport it safely. Defendant also admitted to having known of the stolen jewelry’s location in the truck and to having handled it. Moreover, the tool box also contained a loaded handgun; presumably, given the value of the jewelry, defendant and McMullen believed that a gun was necessary to protect both themselves and the jewelry from any robbers.
Third, the record evidences planning and preparation made necessary by the length of the trip.
For the preceding reasons, we AFFIRM the district court’s application of a sentence enhancement for a crime involving more than minimal planning under U.S.S.G. § 2B1.1 (b)(4)(A).
. Sentencing calculations relied upon the 2000 edition of the United States Sentencing Guidelines Manual.
. Another male was present, but drove to the house separately.
. The government is correct that, while defendant cites to U.S.S.G. § 2F1.1(b)(2)(A) as the relevant guideline, the proper guideline for a violation of 18 U.S.C. § 2314 is U.S.S.G. § 2B 1.1 (b)(4)(A). In any event, because both of these guidelines incorporate the definition of “more than minimal planning” under U.S.S.G. § 1B1.1, comment (f), our legal analysis would, nevertheless, be the same.
. To the extent that the government now suggests that defendant was involved with the burglaty of the Ocala. Florida, Service Merchandise store, it had conceded before the district court, however, that there is not a preponderance of the evidence by which to establish this. Likewise, there is not a preponderance of the evidence by which to demonstrate defendant’s participation in the burglary of the Leesburg, Florida, Service Merchandise store. The government relies on defendant's and McMullen’s status as former employees of the Ocala and Leesburg stores, respectively, and defendant's prior pawning of jewelry stolen from the Leesburg store. Given the lack of sufficient evidence inculpating defendant in the stores’ burglaries, it is unclear what weight, if any, these facts should have in the more-than-minimal-planning analysis. Perhaps, however, these facts, in demonstrating defendant’s and McMullen’s connections both to each other and to the stores, give rise to a reasonable inference that defendant and McMullen must have engaged in some form of planning regarding the transportation of the stolen jewelry to Michigan.
. We note that, although we do not have the individual list prices for the 150 pieces of stolen jewelry, each price would be valued at over $4,600.00 if all of the pieces were of the same value.
. Because the offense requires that the stolen property travel in interstate commerce—and, thus, at a minimum, entails traveling between two states—and because not all travel across more than two states requires planning or preparation—as perhaps with the closely adjoining states on the East coast—the bare fact that the travel spanned more than two states is insufficient, in itself, to trigger the more-than-minimal-planning enhancement. See Ludlow, 2001 WL 1299251, at *2 (holding that "simple, necessary, adjuncts to the elements of the offense cannot provide a sole basis for the enhancement”).
. In finding that the drive to Michigan spanned two days, the district court relied on what it perceived to have been a concession on this issue by defendant. However, at the plea hearing, defendant had simply assented to the statement that the drive had taken "one or two days,” thereby leaving open the possibility that it had taken only one day.
Reference
- Full Case Name
- United States v. Michael J. PANDO
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- 1 case
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- Published