United States v. Terry Al Collins ( 1997 )

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No. 96-2475
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Terry A. Collins, *
*
Appellant. *
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Submitted: December 10, 1996
Filed: January 9, 1997
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Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
Terry A. Collins pled guilty to one count of interstate
transportation of stolen property in violation of 18 U.S.C. §
2314 and was sentenced by the district court1 to 24 months.
Collins argues on appeal that his sentence was improperly
enhanced and that the court erred in departing upward. We
affirm.
From September to December of 1993, Collins broke into and
stole items from numerous locked storage units located in
Arkansas, Oklahoma, Texas, Kansas and Missouri. When interviewed
while in custody by authorities in Bixby, Oklahoma, Collins
identified Truman Burgess as his partner in his criminal
activity. Burgess was the owner of Truman’s Auction in
Tallequah, Oklahoma. Collins and Burgess would travel to an
1
The Honorable Russell G. Clark, United States District Judge
for the Western District of Missouri, presiding.
area, commit several burglaries, load the stolen goods into a
stock trailer, and return to Truman’s Auction in Oklahoma.
Burgess would then sell the items through the auction house and
split the proceeds with Collins. These burglaries resulted in
the present federal charges and five other felony convictions in
the states of Texas and Arkansas. There is evidence that Collins
also participated in approximately 16 other burglaries for which
state or federal charges were never brought.
At sentencing, the district court considered Collins' state
convictions as relevant conduct under U.S.S.G. § 1B1.3, rather
than using them to calculate his criminal history. He thus
received zero criminal history points, but the value of his
thefts was higher which raised his offense level one point. The
district court also imposed a four level enhancement under
U.S.S.G. § 2B1.1(b)(4)(B) because Collins was “in the business”
of receiving and selling stolen goods. Finally, the district
court departed upward under U.S.S.G. § 4A1.3 because Collins’
criminal history category did not adequately represent the
seriousness of his past criminal conduct.
The parties disagree as to the appropriateness of the
enhancement and the upward departure. Collins argues his offense
level should not have been raised four points under U.S.S.G §
2B1.1(b)(4)(B) because he was not in the business of receiving
and transporting stolen goods. Collins also claims that the
upward departure was wrong because it essentially double counted
his state convictions. The United States counters that there is
sufficient evidence to support the four level increase and that
the district court’s decision to depart upward was within its
discretion.
Several standards of review have been developed for
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reviewing a sentence under the guidelines. The correct
application of the guidelines is a question of law subject to de
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novo review. United States v. Werlinger, 894 F.2d 1015, 1016
(8th Cir. 1990). A factual determination of the sentencing court
is reviewed under a clearly erroneous standard. See United
States v. Phillippi, 911 F.2d 149, 152 (8th Cir. 1990). A
decision to depart from the guidelines will be reviewed for an
abuse of discretion. See Koons v. United States, 116 S. Ct. 2035,
2047 (1996).
There is sufficient support in the record for the district
court’s decision to impose the four level increase under U.S.S.G.
§ 2B1.1(b)(4)(B). Truman’s Auction in Tallequah Oklahoma was a
business which received and sold stolen goods. Collins was an
integral part of the scheme by which the auction house received
and sold stolen goods. Since he split the proceeds of sales at
Truman’s Auction house after the sales occurred, Collins was part
of a business which received and sold stolen goods. Collins was
thus in the business of receiving and selling stolen goods within
the meaning of U.S.S.G. § 2B1.1(b)(4)(B).2
The district court’s decision to depart from the guidelines
was not an abuse of discretion. There was ample evidence that
2
Under the circumstances it is not necessary to choose between
the "fence" test and the "totality of the circumstances" test
developed in other circuits for interpreting § 2B1.1(b)(4)(B).
The “fence” test requires proof that the defendant was a person
who buys and sells stolen property, and thereby encourages others
to commit property crimes. See United States v. Warshawsky, 20
F.3d 204, 214 (6th Cir. 1994); United States v. Esquivel, 919
F.2d 957, 959 (5th Cir. 1990); United States v. Braslawsky, 913
F.2d 466, 468 (7th Cir. 1990). The “totality of the
circumstances” test requires examination of all the facts to
assess the "regularity and sophistication of a defendant’s
operation." United States v. Zuniga, 66 F.3d 225, 228 (9th Cir.
1995 (citation omitted); see also, United States v. King, 21 F.3d
1302, 1306 (3d Cir. 1994); United States v. St. Cyr, 977 F.2d
698, 703 (1st Cir. 1992).
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Collins’ criminal history category did not reflect the
seriousness of his criminal activity. There is evidence that
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Collins participated in approximately 16 burglaries for which
neither federal nor state charges were ever brought. Uncharged
conduct can properly be considered when departing under U.S.S.G.
§ 4A1.3. See United States v. Harris, 70 F.3d 1001, 1003 (8th
Cir. 1995). These 16 instances of uncharged conduct were not
considered in calculating his offense level, and there was an
appropriate basis for departure. The district court’s decision
to depart upward was not an abuse of discretion.
Collins also complains that the district court jumped over
several categories in departing upward. The district court
departed from the guidelines by treating Collins’ criminal
history category as category IV instead of I. It concluded that
Collins “stole property from storage units in at least five
states over a lengthy period of time” and that a criminal history
category of I was “not appropriate relative to the amount of
burglaries [he committed].” This court has indicated that a
court should proceed step by step in deciding on the degree of
departure:
To impose an upward departure under § 4A1.3, the
sentencing court first must proceed along the criminal
history axis of the sentencing matrix, comparing the
defendant’s criminal history with the criminal
histories of other offenders in each higher category. .
. . Though our prior cases do not make compliance with
§ 4A1.3 a ‘ritualistic exercise,’ the record must
reflect that this Guideline has been properly applied.
United States v. LeCompte, 99 F.3d 274, 280 (8th Cir. 1996)
(citations omitted). Although the district court did not
specifically mention that it had considered each intermediate
criminal history category, its findings were adequate to explain
and support the departure in this particular case.
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For these reasons we affirm the sentence of the district
court.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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