Opinion
CASE NO.: 2:11-CR-010(1).
October 3, 2011
OPINION AND ORDER
This matter is before the Court on the Defendant's Motion to Apply the Burglary Guidelines in place of Larceny Guidelines (Doc. 101). The Government has responded (Doc. 102) and this matter is ripe for review. For the reasons that follow, Defendant's Motion to Apply the Burglary Guidelines is DENIED.
Defendant requests the Court Order the U.S. Probation Office to apply the Burglary Guidelines (§ 2B2.1) to this case, in place of the Larceny Guidelines (§ 2B1.1), if he is convicted on Count 4 of the Indictment. Count 4 of the Indictment specifically states:
The U.S. Probation Office has applied § 2B1.1 to the co-defendants in this case and has indicated in a guidelines predetermination that it will apply § 2B1.1 in Defendant Murphy's case as well.
On or about January 18, 2009, in the Southern District of Ohio, the defendants, SEAN D. MURPHY, JOSEPH M. MORGAN and ROBERT DOUCETTE, did unlawfully transport stolen merchandise and money in interstate commerce, that is, miscellaneous items of some value and more than $5,000.00 in U.S. currency, from Columbus, Ohio to locations outside of the State of Ohio, knowing that the merchandise and money had been stolen.
In violation of Title 18 U.S.C. §§ 2314 and 2.
(Doc. 4, p. 6).
In support of his Motion, Defendant cites the following language from the United States Sentencing Guidelines:
(1) Section 1B1.2 of the Sentencing Guidelines states: "The Court will determine which guideline section is most appropriate for the offense conduct charged." The Court is to consider the `actual conduct' of Defendant.
(2) Section 2X5.1 of the Sentencing Guidelines states: "The Court is required to determine the guideline that is most analogous to type of criminal behavior."
(3) Section 2B1.1(c)(3) of the Sentencing Guidelines states: "Where the indictment . . . establishes an offense more aptly covered by another guideline, apply that guideline." Note 15 refers to several instances where `other guidelines' would be more appropriately applied rather than the Larceny Guidelines. e.g., "Where the actual conduct is: 1. false entries regarding currency transactions, the 2S1.3 (Structuring Transactions to Evade Reporting Requirements) would be more apt than Larceny Guidelines; 2. False Statements to a Customs, the 2T3.1 (Evading Import Duties on Restrictions (Smuggling), Receiving or Trafficking in Smuggled Property) would be more apt than Larceny Guidelines; 3. Fraud involving the deprivation of the intangible right of honest savings, the 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe) would be more apt than the Larceny Guidelines."
(Def.'s Mot. at 1-2, Doc. 101).
The Defendant is essentially arguing that § 2B2.1 is more appropriately applied to Count 4 than § 2B1.1 because the `actual conduct' alleged in the Indictment was a burglary. In support, Defendant attaches exhibits from the FBI and Columbus Division of Police investigations specifically referring to the offense as a burglary.
Further the Defendant relies on U.S. v. Couch, 65 F.3d 542 (6th Cir. 1995), where the Court noted that:
At the sentencing hearing, the District Court considered both the burglary and theft guidelines. It concluded that the burglary guideline was most analogous because the Tennessee statute defined defendants offense as `burglary,' and alternatively, because a statute to which the guideline explicitly relates, Breaking or Entering Carrier Facilities, 18 U.S.C. § 2117, is similar to defendants' offense.Id. at 544.
In Couch, the defendants pled guilty to breaking into, and stealing property from, motor vehicles parked in the Cherokee National Forest, in violation of 18 U.S.C. § 13, which assimilated the burglary statute under the laws of Tennessee. The Sixth Circuit held that the district court erred by utilizing the burglary guidelines under U.S.S.G. § 2B2.1, reasoning that the court should have utilized the theft provisions under U.S.S.G. § 2B.1.1. Id. at 545. The Court further stated that the theft provision was most appropriate since it addressed both the value of the property stolen and the damage done to the property during the theft. Id. While this case is factually distinguishable, the Government notes that the Brinks facility, like the vehicles in Couch, suffered significant damage resulting in a substantial loss due to the break-in, in addition to the loss from the property taken.
The Government argues that while a burglary did occur at the Brinks Warehouse on January 17, 2009, that break-in followed the careful planning to burglarize the contents of that facility to obtain a substantial amount of money and then to take that stolen property in interstate commerce from the Southern District of Ohio to the State of Massachusetts. The Government notes that it
expects the evidence to reveal very careful planning prior to the actual theft from the Brinks facility. Murphy and his co-conspirators traveled in interstate commerce in two vehicles, a 24 foot truck and a sedan, and stopped in Warrendale, Pennsylvania in order to obtain a variety of items and tools, which had previously been stored there, to be utilized in the break-in and theft within the Brinks facility. Murphy and his co-conspirators ultimately arrived in Columbus, Ohio, drove to the Brinks facility, broke into that facility, and proceeded to steal coins and currency. They then transported the coins and currency, along with the tools utilized for the break-in, back to Warrendale, Pennsylvania where they unloaded the coins and tools. They then continued their travel on the interstate highways from Pennsylvania to Massachusetts with the currency.
(Gov't Response at 3-4, Doc. 102). Accordingly, the Government argues that the aforementioned activity "represents a classic case of the interstate transportation of stolen property; conduct which Title 18 U.S.C. § 2314 expressly forbids."
The Government also references two additional cases that are more directly on point: U.S. v. Pando, 102 Fed. Appx. 944 (6th Cir. 2004), and U.S. v. Onyiego, 286 F.3d 249 (5th Cir. 2002). In Pando, the defendant pled guilty to aiding and abetting the interstate transportation of stolen property in violation of 18 U.S.C. §§ 2314 and 2. The defendant aided and abetted an individual who had burglarized a jewelry store in Florida and then drove to Michigan with the stolen jewelry, with plans to sell it there. The defendant admitted that he helped drive the stolen merchandise to Michigan and that he expected to benefit from the sale of the stolen jewelry. Id. at 946. Based on these facts, the District Court sentenced the defendant in accordance with § 2B1.1 of the United States Sentencing Guidelines.
Similarly, in Onyiego, the defendants were sentenced under § 2B1.1 for the interstate transportation of stolen airline tickets. The defendants had broken into a travel agency and stole blank airline tickets, and then sold the airline tickets in interstate commerce.
The Government argues that like Pando and Onyiego, a burglary was committed and stolen goods were transported in interstate commerce sufficient to give rise to an 18 U.S.C. § 2314 conviction, and thus the Court has the authority to sentence the Defendant under § 2B1.1 of the United States Sentencing Guidelines. The Court agrees that if Defendant is convicted on Count 4, it should apply § 2B1.1 of the U.S.S.G., rather than § 2B2.1.
Section 1B1.2 of the United States Sentencing Guidelines, entitled "Applicable Guidelines" also provides guidance on this issue, instructing: "[r]efer to the Statutory Index (Appendix A) to determine the Chapter Two offense guideline, referenced in the Statutory Index for the offense of conviction." Appendix A of the Federal Sentencing Guidelines manual, identifies Title 18 U.S.C. § 2314, the statute cited in Count 4, alleging that Defendant Murphy transported merchandise and money in interstate commerce, as a cross-reference with U.S.S.G. § 2B1.1 and § 2B1.5. U.S.S.G. § 2B1.5 is clearly inapplicable since that section addresses the "Theft of, Damage to, or Destruction of, Cultural Heritage resources or Paleontological Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources or Paleontological Resources." On the other hand, U.S.S.G. § 2B1.1 specifically addresses offenses involving stolen property and other forms of theft. The statutory provisions under the "Commentary" section of § 2B1.1 also cite 18 U.S.C. § 2314 as one of the statutory provisions applicable to that guideline section. However, the statutory provisions under the "Commentary" section of § 2B2.1, the section Defendant argues should be applied in this case, does not list 18 U.S.C. § 2314 as a statutory provision applicable to that guideline section.
Based on the aforementioned caselaw, as well at the actual statute cited in Count 4, 18 U.S.C. § 2314, the Court finds that the applicable sentencing guideline provision that should be applied to the conduct charged in Count 4 of the Indictment is § 2B1.1.
The Clerk of this Court shall remove Document 101 from the Court's pending motions list.