United States v. John Doe 2

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUG 28, 2008
No. 07-15918
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 06-00440-CR-06-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN DOE #2,
a.k.a. MAURO SANCHEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 28, 2008)
Before TJOFLAT, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Mauro Sanchez appeals his 32-month sentence for conspiracy to transport
stolen goods in interstate commerce, in violation of 18 U.S.C. §§ 371 and 2314.
After review, we affirm.
From January 2005 to October 2006, Sanchez was a cashier at a grocery
store that was part of a “fencing” operation, in which professional shoplifters
would steal infant formula and other pharmaceutical items from retailers and
deliver them to the grocery store in exchange for payment. Sanchez was one of
five co-defendants charged in the conspiracy. Sanchez’s role in the conspiracy
was to receive the stolen goods from the shoplifters. The stolen goods were
subsequently loaded onto trucks behind the grocery store and transported by
Sanchez’s co-conspirators to New York, where they were sold.
At sentencing, the district court determined that Sanchez was accountable
for a loss amount of $1.8 million based on its findings that, during the months in
which Sanchez was involved in the conspiracy, an average of two truckloads per
month were delivered to New York, each containing goods with a retail value of
approximately $75,000. See U.S.S.G. § 2B1.1(b)(1)(I) (adding 16 levels to a
defendant’s offense level if the loss exceeded $1,000,000).
On appeal, Sanchez contends that the district court erred in holding him
accountable for the full value of the merchandise shipped to New York because
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his role was limited to paying for stolen merchandise brought into the grocery
store and he did not handle all of the merchandise that was shipped.
Under the advisory sentencing guidelines, a defendant may be held
accountable for “all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity.” U.S.S.G.
§ 1B1.3(a)(1)(B). To be held responsible for the conduct of others, the conduct
must be both (1) “in furtherance of the jointly undertaken criminal activity” and
(2) “reasonably foreseeable in connection with that criminal activity.” U.S.S.G.
§ 1B1.3 cmt. n.2; United States v. Hunter, 323 F.3d 1314, 1319-20 (11th
Cir. 2003). When determining the loss amount attributable to a particular
defendant convicted of a conspiracy offense, the district court must “first
determine the scope of criminal activity the defendant agreed to undertake, and
then consider all reasonably foreseeable acts and omissions of others in the jointly
undertaken criminal activity.” United States v. McCrimmon, 362 F.3d 725, 731
(11th Cir. 2004) (quotations marks omitted).1
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Although we review for clear error findings as to the loss amount, whether the district
court misapplied the relevant conduct provisions of § 1B1.3 in attributing loss to a defendant is
reviewed de novo. See McCrimmon, 362 F.3d at 728. On appeal, Sanchez does not challenge
the district court’s calculation of the loss amount resulting from the conspiracy, merely the
attribution of the full loss amount to him.
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The district court did not err in concluding that Sanchez was accountable for
the full amount of the loss resulting from the fencing conspiracy while he was a
member. By pleading guilty and not objecting to the facts set forth in the
presentence investigation report, Sanchez conceded that the scope of the
conspiracy he joined was to pay professional shoplifters for stolen retail goods and
to transport those goods from the grocery store to New York, where they would be
sold. See United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005).
Further, as a “stand-in” manager at the grocery store, who also directly
participated in the intake of the stolen merchandise, Sanchez was not a low-level
participant who was unaware of the larger conspiracy. It was reasonably
foreseeable that Sanchez was not the only store employee handling stolen
merchandise and that additional stolen merchandise, not just that Sanchez handled
personally, would be included in the shipments delivered to New York.
Thus, the district court did not err in attributing the full amount of loss from
the conspiracy to Sanchez because the acts of Sanchez’s co-conspirators in
furtherance of the conspiracy–purchasing merchandise from professional
shoplifters and transporting it to New York to be sold–were “reasonably
foreseeable” to him.
AFFIRMED.
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