United States v. White ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4249
WILLIAM DALE WHITE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Lacy H. Thornburg, District Judge.
(CR-01-18)
Submitted: October 1, 2003
Decided: October 14, 2003
Before WILKINSON and NIEMEYER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
G. Bruce Park, NIXON, PARK & GRONQUIST, PLLC, Charlotte,
North Carolina, for Appellant. Robert J. Conrad, Jr., United States
Attorney, Jennifer Marie Hoefling, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
2 UNITED STATES v. WHITE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
William Dale White appeals his thirty-month sentence imposed
after pleading guilty to one count of conspiracy to transport stolen
goods in interstate commerce, in violation of 18 U.S.C. §§ 371, 2314
(2000). Because we find that the district court did not make adequate
factual findings as to one aspect of its sentencing determination, we
affirm in part, vacate in part, and remand for resentencing.
The charges against White arose from an FBI investigation into a
burglary ring that committed various thefts of commercial supplies
and equipment from asphalt plants, aggregate plants and other con-
struction sites in several southeastern states. During the course of the
federal investigation, White gave a signed and dated statement to FBI
agent George Glorioso in which he admitted his illegal activities. In
this statement, White noted that he purchased stolen equipment on fif-
teen to twenty occasions over the course of six to eight years from
Jamie Coleman. He further stated that he became aware that the goods
he bought were stolen on about his second or third purchase from
Coleman. White stated he purchased items such as generators, con-
struction tools, grinders and hand tools at well below fair market
value. In the FBI statement, White also admitted that he purchased
stolen property from his brother, Tommy White, on another fifteen to
twenty occasions. Tommy White had purchased the items originally
from Coleman. White further stated that on one occasion, he bought
stolen items from Richard Averson that were originally stolen by
Coleman. This purchase included two saws and a large socket set.
The presentence investigation report ("PSR") devoted one num-
bered paragraph (¶ 21) and an additional sentence (in ¶ 13) to White’s
specific criminal activities. Paragraph 21 is based on the signed FBI
statement described above. This paragraph, which is critical to the
issues White raises on appeal, reads in full:
UNITED STATES v. WHITE 3
On March 22, 2001, William Dale White gave authorities
[agent Glorioso] a signed statement concerning his involve-
ment in interstate transportation of stolen property. William
White admitted purchasing stolen property (various tools
and equipment) from Frankie Coleman for the past ten years.1
William White also advised he had directly purchased stolen
property from Frankie Coleman on about 15 to 20 occa-
sions. William White also advised he had purchased stolen
property indirectly, through his brother Tommy Mitchell
White, from Frankie Coleman on another 15 to 20 occa-
sions. White gave investigators several receipts that docu-
mented the transactions conducted with Frankie Coleman.2
Evidence indicates the loss amount attributable to William
White is at least $1,000,000.
(JA 137).
The relevant sentence in ¶ 13 of the PSR states that "authorities
determined" that White was the "fence primarily responsible" for the
smaller equipment stolen by Coleman, such as generators, grinders,
and tools. The PSR states that co-conspirators Richard Averson and
Louie Averson were the fence "primarily responsible" for the larger
types of equipment stolen by Coleman, such as electromagnetic start-
ers, reducers and breakers.
In formulating White’s sentence under the 2000 edition of the U.
S. Sentencing Guidelines Manual,3 the probation officer increased
White’s offense level by thirteen levels pursuant to § 2B1.1(b)(1)(N)
because the probation officer concluded the monetary loss amount
1
The ten years figure is apparently an error on the part of the probation
officer. White’s FBI statement indicates that the amount of time in ques-
tion is actually six to eight years.
2
The "receipts" to which the PSR refers are mentioned in somewhat
more detail in the actual statement White gave to the FBI. In the state-
ment, White declares that: "on several occasions, I completed receipts for
the purchases from Coleman or bill of sale. I have furnished the inter-
viewing agent [Glorioso] with the bill of sales for four purchases."
3
White does not contest that this is the proper edition of the guidelines
manual for his sentencing.
4 UNITED STATES v. WHITE
attributable to White was between $800,000 and $1,500,000, appar-
ently representing the entire loss amount caused by the conspiracy as
a whole. The PSR further indicated that White deserved a four-level
enhancement under § 2B1.1(b)(4)(B) for being "in the business"
("ITB") of receiving and selling stolen property.
White filed written objections to the PSR’s determination of both
the attributable loss amount and the ITB enhancement. White also
specifically objected to the PSR’s sentence in ¶ 13, which stated
White was the "fence primarily responsible" for Coleman’s smaller
stolen items, such as welders, generators and hand tools. With regard
to the amount of loss, White argued that he "could not reasonably
foresee the totality of Frankie Coleman’s thefts" and that, while he
purchased small items, "he was not involved in the more sophisticated
items that were stolen." (JA 158). Therefore, he asserted the PSR
improperly attributed the conspiracy’s total loss of between $800,000
and $1,500,000 to him. Despite the objections, no changes were made
to the PSR on these points.
At the sentencing hearing, White noted and argued the same objec-
tions he made to the PSR and testified in support of these objections.
His testimony contradicted, or was at least inconsistent with, some of
the information in his statement to agent Glorioso. Specifically, he
stated at the hearing that he only purchased items from Coleman on
"five" occasions (not "fifteen to twenty occasions") and that the pur-
chases consisted of "four or five" truckloads of items. (JA 96-97).
However, he testified that he did not "make it a business practice" to
purchase Coleman’s stolen items. (JA 97). White estimated that each
time he paid "between $800 to 17-$1,800" for merchandise that was
actually worth "$1,500 [or] $2,500." (JA 98, 107). In total, White tes-
tified that the items he bought from Coleman were worth "around
five, six thousand dollars." (JA 108). The district court summarily
overruled White’s objections and adopted the PSR without making
any separate factual findings.
The standard of review for sentencing decisions operates on a flexi-
ble sliding scale. United States v. Daughtrey, 874 F.2d 213, 217 (4th
Cir. 1989). In general, this Court reviews a district court’s factual
findings for clear error and its application of the guidelines de novo.
Id.UNITED STATES v. WHITE 5
White argues that the district court clearly erred by relying entirely
on the PSR without making any specific findings of fact on the
amount of loss attributable to him. White asserts that under U. S. Sen-
tencing Guidelines Manual § 1B1.3(a)(1)(B) (2000) and its interpre-
tive case law, the district court should have made specific factual
findings on the scope of White’s agreement with the other conspira-
tors and the reasonable foreseeability of their conduct to him. In the
absence of such factual findings, White asserts, the district court
could not attribute the entire loss amount of the conspiracy to him.
Because the district court "declined to assess [his] role in the overall
conspiracy," White argues that the sentence must be vacated and the
case remanded for specific factual findings on the amount of loss. We
agree.
The "relevant conduct" provisions of USSG § 1B1.3 state that the
base offense and specific offense characteristics shall be determined
on the basis of "all reasonably foreseeable acts and omissions of oth-
ers in furtherance of the jointly undertaken activity." As the relevant
conduct determines the offense level for finding the sentencing range,
so too does the loss caused by the relevant conduct. USSG
§ 1B1.3(a)(3); see also USSG § 2B1.1(b).
As the Application Notes to § 1B1.3 point out, "[t]he principles and
limits of sentencing accountability under this guideline are not always
the same as the principles and limits of criminal liability." USSG
§ 1B1.3, comment. (n.1). And although relevant conduct for purposes
of determining the offense level may be broader than the conduct sup-
porting the offense of conviction, it may also be narrower. Thus, the
Application Notes provide:
Because a count may be worded broadly and include the
conduct of many participants over a period of time, the
scope of the criminal activity jointly undertaken by the
defendant (the "jointly undertaken criminal activity") is not
necessarily the same as the scope of the entire conspiracy,
and hence relevant conduct is not necessarily the same for
every participant.
USSG § 1B1.3, comment. (n.2).
6 UNITED STATES v. WHITE
Focusing particularly on the offense of conspiracy, the Application
Notes point out that the defendant’s relevant conduct may not extend
to all the conduct of the conspiracy:
A defendant’s relevant conduct does not include the conduct
of members of a conspiracy prior to the defendant joining
the conspiracy, even if the defendant knows of that conduct
(e.g., in the case of a defendant who joins an ongoing drug
distribution conspiracy knowing that it had been selling two
kilograms of cocaine per week, the cocaine sold prior to the
defendant joining the conspiracy is not included as relevant
conduct in determining the defendant’s offense level).
Id.; accord United States v. Bolden, 325 F.3d 471, 499 (4th Cir. 2003)
(vacating sentence because neither PSR nor district court made "‘par-
ticularized findings with respect to both the scope of the defendant’s
agreement and the foreseeability of his co-conspirators’ conduct
before holding defendant accountable for the scope of the entire con-
spiracy’") (quoting United States v. Campbell, 279 F.3d 392, 400 (6th
Cir. 2002) (emphasis in original)); United States v. Hammond, 201
F.3d 346, 351 (5th Cir. 1999) (vacating sentence which attributed to
defendant losses incurred by third parties because PSR, upon which
district court relied, did not contain the "absolute prerequisite" factual
findings as to the scope of joint undertaking or foreseeability of
losses); see also United States v. Gilliam, 987 F.2d 1009, 1012-13
(4th Cir. 1993) ("in order to attribute to a defendant for sentencing
purposes the acts of others in jointly-undertaken criminal activity,
those acts must have been within the scope of the defendant’s agree-
ment and must have been reasonably foreseeable to the defendant").
We have reviewed the PSR adopted by the district court and con-
clude it contains insufficient information on White’s relevant conduct
under § 1B1.3. The PSR does not, as required by § 1B1.3, make any
particularized factual findings on both "the scope of the defendant’s
agreement" and "the foreseeability of his co-conspirators’ conduct
before holding the defendant accountable for the scope of the entire
conspiracy." Bolden, 325 F.3d at 499 (citations omitted). The failure
to make these particularized findings makes the sentencing court’s
loss determination "inadequate," requiring remand. Id. at 500, 505. As
White points out in his brief, the district court and the probation offi-
UNITED STATES v. WHITE 7
cer apparently concluded that because White was convicted for con-
spiracy, he may be automatically charged with the entire amount of
loss caused by the conspiracy. However, as the commentary to
§ 1B1.3 and Bolden make clear, the amount of loss cannot be decided
in this summary fashion.
The commentary to the 2002 Guidelines Manual clarifies the stan-
dard for determining whether a defendant warrants an ITB enhance-
ment. Specifically, the Sentencing Commission adopted a "totality of
circumstances" test. The district court, in applying this test, is directed
to the following factors: (1) the regularity and sophistication of the
defendant’s activities; (2) the value and size of the inventory of the
stolen property; (3) the extent to which the defendant’s activities
encouraged or facilitated other crimes; and (4) the defendant’s past
activities in stolen property. United States Sentencing Guidelines
Manual § 2B1.1, comment. (n.4) (2002).
We conclude that White’s PSR, and the FBI statement upon which
it is based, contain sufficient factual findings to sustain the ITB
enhancement. White was involved in purchasing stolen property
numerous times over a course of six to eight years. White bought
items from several different people charged in the conspiracy. White
purposely bought the items well below fair market value so that he
could resell them for a profit. In our view, the determination that
White was "in the business" of receiving and selling stolen property
is not clearly erroneous. We therefore affirm that aspect of the district
court’s sentencing determination.
For all of the foregoing reasons, we affirm in part, vacate in part
and remand for resentencing consistent with this opinion. We express
no view on the amount of loss actually attributable to White relative
to his individual role. We affirm the district court’s determination as
to the four-level ITB enhancement. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED IN PART, VACATED
IN PART AND REMANDED