United States v. Sordillo

[NOT FOR PUBLICATION - NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2131
UNITED STATES,
Appellee,
v.
MICHAEL SORDILLO,
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
Lynch, Circuit Judge,
Campbell, Circuit Judge,
and Magill,* Senior Circuit Judge.
Michael A. Tucker, on brief for appellant.
Peter E. Papps, First Assistant U.S. Attorney, with Thomas P.
Colantuono, United States Attorney, on brief for the United States.
March 27, 2002
*
Of the Eighth Circuit Court of Appeals, sitting by
designation.
PER CURIAM. Michael Sordillo was indicted by a federal
grand jury on one count of trafficking in motor vehicle parts in
violation of 18 U.S.C. § 2321 (1994), and one count of operating a
"chop shop" in violation of 18 U.S.C. § 2322 (1994), and thereafter
found guilty by a jury on both counts. The district court
increased Sordillo's base offense level from 12 to 14 based on the
existence of an "organized scheme to steal vehicles or vehicle
parts" pursuant to U.S.S.G. § 2B6.1(b)(3) (1998). The district
court also imposed a special probation condition, which requires
Sordillo to "refrain from engaging in the business of owning or
operating any type of motor vehicle repair shop during the term of
his supervision." Sordillo appeals the district court's increase
in his base offense level and the imposition of the special
probation condition. Because no objection was made at the time of
sentencing to either issue raised on appeal, our review is for
plain error. United States v. Phaneuf, 91 F.3d 255, 262 (1st Cir.
1996). For the reasons stated below, we affirm.
With respect to his first argument, Sordillo contends
that the district court's imposition of the special probation
condition conflicts with 18 U.S.C. § 2322(a)(2), which provides
that the "Attorney General shall, as appropriate, in the case of
any person who violates paragraph (1) [operation of a chop shop],
commence a civil action for permanent or temporary injunction to
restrain such violation." Sordillo essentially argues that this
provision grants the Attorney General the exclusive power to enjoin
future business activities related to motor vehicles, and
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therefore, the district court's special probation condition is an
impermissible exercise of judicial authority.
While Sordillo's argument is novel, he points to no
authority to support his assumption that the court's authority to
impose a special condition of supervised release is limited merely
because it tracks an available civil remedy. Moreover, we are
unable to read into § 2322(a)(2) a provision that suggests that a
civil injunction is the exclusive means of preventing a defendant
from engaging in the same business that provided the means for the
commission of the offenses of conviction.
"A sentencing judge has broad discretion to impose
special conditions of release that are 'reasonably related' to (1)
the defendant's offense, history and characteristics; (2) the need
for adequate deterrence; and (3) the need to protect the public
from further crimes of the defendant." Phaneuf, 91 F.3d at 263.
We find the special probation condition imposed by the district
court to be directly related to the means by which Sordillo
committed the offenses. Sordillo was convicted of operating a
"chop shop"; a shop he operated through his motorcycle repair and
parts sale business. Thus, Sordillo's offense and past employment
history are completely intertwined. In addition, prohibiting
Sordillo from engaging in the business of owning or operating a
motor vehicle repair shop serves the purposes of deterrence and
protection of the public because it was through Sordillo's
operation of such a business that he was able to engage in the
prohibited offenses and cause injury to the public. Thus, we find
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no error in the district court's imposition of the special
probation condition limiting Sordillo's post-incarceration
employment.
With respect to Sordillo's second argument, we conclude
that the district court appropriately complied with section
2B6.1(b)(3) of the United States Sentencing Guidelines, which
provides: "If the offense involved an organized scheme to steal
vehicles or vehicle parts, or to receive stolen vehicles or vehicle
parts, and the offense level as determined above is less than level
14, increase to level 14." Application Note (1) to section 2B6.1
further provides:
Subsection (b)(3), referring to an "organized
scheme to steal vehicles or vehicle parts, or
to receive stolen vehicles or vehicle parts,"
provides an alternative minimum measure of
loss in the case of an ongoing, sophisticated
operation such as an auto theft ring or "chop
shop." (emphasis added).
Because Sordillo was convicted of operating a "chop shop," a base
offense level of 14 was proper.
Accordingly, the judgment and sentence of the district
court is affirmed.
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