United States v. Misencik ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5009
DAVID LEE MISENCIK,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-94-50095)
Submitted: December 29, 1995
Decided: January 30, 1996
Before WIDENER and WILKINS, Circuit Judges,
and CHAPMAN, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Hunt L. Charach, Federal Public Defender, C. Cooper Fulton, Assis-
tant Federal Public Defender, Charleston, West Virginia, for Appel-
lant. William D. Wilmoth, United States Attorney, Robert H.
McWilliams, Jr., Assistant United States Attorney, Wheeling, West
Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
David Lee Misencik entered a guilty plea to one count of con-
spiracy to transport stolen property, 18 U.S.C.A.§ 371 (West Supp.
1995), and received the statutory maximum sentence of 60 months.
The district court imposed a 57-month sentence for the conspiracy
and a consecutive 3-month sentence under 18 U.S.C.A.§ 3147 (West
Supp. 1995) because the district court found that Misencik committed
part of the offense while he was released on bond. United States Sen-
tencing Commission, Guidelines Manual § 2J1.7 (Nov. 1994). Misen-
cik challenges this ruling on appeal. He also contends that the district
court erred in finding that he was in the business of receiving and sell-
ing stolen property, USSG § 1B1.1(b)(5)(B), and that he was a man-
ager or supervisor in the offense, USSG § 3B1.1(b). We affirm the
sentence.
The indictment to which Misencik pled guilty charged that between
November 1, 1992, and March 1994 he and co-defendant Robert Dorn
employed "boosters," teams of shoplifters who ranged the eastern and
southeastern states shoplifting merchandise. Misencik and Dorn
bought the stolen merchandise from the boosters, many of whom
were drug addicts, and resold it to fences in Ohio and Pennsylvania.
From July 1993 until March 1994, Misencik and Dorn bought stolen
merchandise from boosters and resold it to Jayantilal Shah, a fence in
Cleveland, Ohio. Shah entered a guilty plea to a separate information
and received a probationary sentence. Shah, as well as Herbert Levy
and William Haines (both fences in Pittsburgh) all gave statements to
Federal Bureau of Investigation agents. Co-conspirators identified in
the presentence report in addition to Dorn included Shah, Levy,
Haines, at least nine boosters, and two others who repackaged stolen
goods.
In December 1993, Misencik was indicted in Pennsylvania for con-
spiracy to transport stolen property. He was apparently arrested in
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West Virginia and released the same day on bond so that he could
appear in federal court in Pennsylvania. However, Misencik did not
appear in court in Pennsylvania until after his arrest in March 1994
in West Virginia for the instant offense. He was sentenced to a one-
year term of imprisonment for the Pennsylvania conspiracy.
To determine whether an enhancement under USSG
§ 2B1.1(b)(5)(B) is warranted, the sentencing court should make a
case-by-case examination of the totality of the circumstances, consid-
ering especially the regularity and sophistication of the defendant's
operation. United States v. St. Cyr, 977 F.2d 698, 703 (1st Cir. 1992);
see also United States v. Zuniga, 66 F.3d 225, 228 (9th Cir. 1995);
United States v. King, 21 F.3d 1302, 1306 (3d Cir. 1994). The court's
legal conclusion is reviewed de novo. St. Cyr , 977 F.2d at 701.
Although Misencik stipulated in his plea agreement that the value
of the stolen property attributable to the instant conspiracy was
between $500,000 and $800,000, he argued that he was not in the
business of receiving and selling stolen goods. At his sentencing hear-
ing, he attempted to establish that he devoted most of his time to a
legitimate business, a video store he operated in West Virginia, and
that his criminal activities were simply a "hobby." Misencik's daugh-
ter, Michelle, the only employee at the store before his arrest, and his
girlfriend, Lynda Cox, who worked there after his arrest, testified that
he put in regular hours working at the video store before his arrest.
Called by the government as a witness, Misencik testified that he did
not keep records of his income from the video store and thus did not
know whether he made more from legitimate or illegal activities. He
agreed that he supervised more people in his criminal activities than
he did at the video store. Citing St. Cyr, 977 F.2d at 702-04,* the dis-
trict court found that Misencik was in the business of buying and sell-
ing stolen property because the operation demonstrated both
regularity and sophistication.
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*In St. Cyr, the guideline at issue was USSG§ 2B1.2(b)(4)(A) (Nov.
1992). Under the 1993 amendments, section 2B1.2 was deleted and the
"in the business" provision was incorporated into § 2B1.1(b)(5)(B).
USSG App. C, amd. 481.
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The district court found that Misencik's operation demonstrated
sophistication and regularity in that a large number of people were
involved in an enterprise which continued for a long time and took
in a great deal of money. Misencik argues that the court erred because
the business practices used were primitive and the government could
not establish how much of Misencik's income came from criminal
activity and how much from his legitimate business.
We find that the court's determination was correct. Misencik and
Dorn coordinated the efforts of about a dozen boosters and acted as
middlemen between the boosters and the fences. When necessary,
Misencik bailed the boosters out of jail. The merchandise acquired
from the boosters was sold to new fences as old ones were arrested,
and Misencik and Dorn kept the business going for several years.
According to Misencik's stipulation, they handled over a half-million
dollars worth of goods. This evidence amply supports the court's
finding that Misencik was engaged in the business of selling stolen
goods.
In addition to the boosters whose services Misencik and Dorn used,
several individuals were employed to remove retail stickers from
stolen merchandise. This evidence alone supports the district court's
factual finding that Misencik was a manager or supervisor in the
offense.
Misencik argued at sentencing that he should not be penalized for
committing a part of the offense while on release because the order
entered December 15, 1993, did not give him notice that he had to
withdraw affirmatively from the ongoing conspiracy with Dorn to
avoid being held responsible for the criminal actions of others in the
conspiracy. He relies on United States v. Cooper , 827 F.2d 991, 994-
95 (4th Cir. 1987). Cooper holds that a defendant who is not advised
that conviction of another crime committed while he is on release will
result in an enhanced penalty may not be subjected to the enhanced
penalty. The order releasing Misencik advised him of the likelihood
of enhanced penalties if he violated the conditions of bond.
Implicit in Misencik's argument is the assumption that he took no
active part in the Dorn conspiracy after his release in December 1993.
However, in a statement given to the FBI, Jay Shah stated that while
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he was out of the country in early 1994 his son purchased stolen
goods from Misencik and Dorn; after his return, on March 9 and 10,
1994, Shah personally bought stolen goods from Misencik and Dorn.
Given this information, the district court did not clearly err in finding
that Misencik continued to participate actively in the conspiracy, and
did not err in finding that he was adequately advised that to do so
would subject him to heightened penalties.
We therefore affirm the sentence imposed. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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