
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1900                                    UNITED STATES,                                      Appellee,                                          v.                                NELSON CRUZ-SANTIAGO,                                Defendant, Appellant.                                      __________        No. 92-1917                                    UNITED STATES,                                      Appellee,                                          v.                                  EDGAR ARCE-RAMOS,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                  Breyer, Chief Judge                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                            and Torruella, Circuit Judge.                                           _____________                                 ____________________            Rachel  Brill with  whom  Norberto Colon,  By  Appointment  of the            _____________             ______________        Court, was on joint brief for appellants.            Edwin O.  Vazquez, Assistant  United  States  Attorney, with  whom            _________________        Charles E. Fitzwilliam,  United States Attorney,  and Jose A.  Quiles-        ______________________                                ________________        Espinosa,  Senior Litigation Counsel, Criminal Division, were on brief        ________        for appellee.                                 ____________________                                  December 22, 1993                                 ____________________                       BREYER, Chief  Judge.  Appellants  Arce Ramos  and                               ____________             Cruz Santiago, convicted bank robbers, raise one question in             respect to  their sentencing.  They say  that the sentencing             court should not  have counted, as a  robbery-related "loss"             for sentencing  purposes,  the  value  of a  car,  a  Nissan             Sentra, that the robbers seized at gunpoint outside the bank             and drove from  the scene of  the crime to a  second getaway             car.  We think the district court was correct to include the             value of the  car in calculating the loss,  and we therefore             affirm.                       The  appellants concede  the  basic  facts.   Arce             Ramos, along with  two other persons,  entered a bank,  took             $6,160,  shot the assistant  manager, ran outside  the bank,             saw a Nissan  Sentra that happened to be  passing by, forced             its  innocent driver  out  of the  car, and  drove off  to a             rendezvous  point.    A  private  security  guard,  who  had             followed the bank robbers, saw  them park the Sentra and get             into a yellow Volkswagen,  where two confederates (including             appellant  Cruz Santiago) were waiting.  All five then drove             off in the Volkswagen, in  which the police later found, and             arrested, them.                       The  sentencing  court  noted  that  the  relevant             guideline, the  robbery  guideline,  determines  a  sentence                                         -2-                                          2             partly  on  the  basis  of  a  monetary  loss  table,  which             instructs the  court to increase  the offense level  by "one             level" if the  loss was more than $10,000 but  not more than             $50,000.  U.S.S.G.    2B3.1(b)(6)(B).  The  court added that             one level because it added  the Sentra's $4,000 value to the             $6,160 taken in the robbery, yielding a total "loss" of just             over $10,000.  The appellants argue that the court ought not             to have  included the  Sentra's value  in this  calculation;             and,  they say,  the court  would have  (though it  need not             have)  imposed a lesser sentence had the final offense level             been lower by  one.  Because the  court did not say  that it             would have  picked the  same  sentence from  the lower  (but             overlapping) sentencing range, we assume that the difference             in calculation would have made a difference to the sentence.             And,  we  proceed  to consider  appellants'  argument.   See                                                                      ___             United States  v.  Ortiz, 966  F.2d  707, 717-18  (1st  Cir.             _____________      _____             1992), cert.  denied, 113  S. Ct.  1005  (1993); cf.  United                    _____________                             ___  ______             States v. Concemi, 957 F.2d 942, 952-53 (1st Cir. 1992).             ______    _______                       The  appellants' argument is  a simple one.   They             note that the  robbery guideline Commentary tells  the court             that "[v]aluation of loss is discussed in the Commentary" to             the  guideline  entitled  "Larceny, Embezzlement  and  Other             Forms of  Theft."  They  concede that this  latter guideline                                         -3-                                          3             defines "loss" as  including "the value of  property taken."                                                                  _____             U.S.S.G.    2B1.1, comment.  (n.2) (emphasis  added).   And,             they concede that they took the Sentra.  But, in their view,                                    ____             the court must read the  word "taken" as embodying a special             meaning,  derived   from  the   common  law   definition  of             "larceny,"  namely,  "taken   with  intent  permanently   to             deprive."  And, they say they did not intend to  deprive its             owner of his Sentra permanently.  (After all, they parked it                                 ___________             before  they  got into  the  yellow Volkswagen.)    For this             reason, they conclude, the "loss" was $6,160, not $10,160.                       We  disagree with appellants.   For one  thing, on             their own reasoning,  the facts offer sufficient  support of             the district court's apparently implicit conclusion that the             Sentra's  taking  met  most  criminal  law   definitions  of             "larceny."  Although there is some dispute among authorities             whether common law larceny requires an intent permanently to             deprive an owner of his property,  see S. Rep. No. 307, 97th                                                ___             Cong., 1st Sess.  at 714 (1981),  it has long been  the case             that  "if one takes  another's property intending  to use it             recklessly and  then abandon it,  the obstacles to  its safe             return are such that the taker possesses the required intent             to  steal."   2  Wayne R.  LaFave  & Austin  W.  Scott, Jr.,             Substantive Criminal Law   8.5, at 360-61 (1986).             ________________________                                         -4-                                          4                       Some   states  say   that   a  defendant   who  is             indifferent or reckless in respect to an owner's recovery of             property is "willing"  to have the  owner lose his  property             permanently,  and,  for  that  reason,  "the  wrongdoer  may             appropriately  be held to entertain specific intent that the             deprivation to the  owner be permanent."   State v.  Gordon,                                                        _____     ______             321 A.2d 352,  358 (Me. 1974);  see also State v.  Webb, 308                                             ________ _____     ____             S.E.2d 252,  256-57 (N.C. 1983)  (defendant's actions  would             leave owner's recovery  "to mere chance and  thus constitute             such  'reckless exposure to loss' that it is consistent only             with  an intent  permanently  to deprive  the  owner of  his             property" (quoting State v. Smith, 150 S.E.2d 194, 200 (N.C.                                _____    _____             1966)).                       The criminal codes in other states  define larceny             (or  theft)  to include  an  "intent to  deprive,"  and then             define "deprive" as  including disposition of property  in a             way that makes  it unlikely that the owner  will recover it.             See, e.g., Conn. Gen. Stat.   53a-118(a)(3); Mont. Code Ann.             ___  ____                45-2-101(19)(d); N.Y. Penal  Law   155.00[3];  Tex. Penal             Code  Ann.     31.01(3)(C);  see also  Model  Penal  Code                                             ________  __________________             223.0(1).                       Thus, courts often  find the requisite "larcenous"             intent where the evidence shows no more than the abandonment                                         -5-                                          5             of  property  under  circumstances  that  make  the  owner's             recovery unlikely.  See, e.g., State v. Piscattano, 352 A.2d                                 ___  ____  _____    __________             783,  785 (Conn. Super.  Ct. 1976) (factfinder  may conclude             recovery not  likely when  car left on  street with  keys in             car); Brown  v. State,  804 S.W.2d 566,  570 (Tex.  Ct. App.                   _____     _____             1991) (jury may  find "intent" permanently to  deprive where             defendant  parked and abandoned  vehicle in vacant  lot with             windows down); see also State v. Ward, 10 P. 133 (Nev. 1886)                            ________ _____    ____             (factfinder may find larceny when defendant abandoned horses             12 miles from home, though they walked back to their barn).                       The robbers here, at the  time they first took the             Nissan,  subjected it to  significant, known risks  that the             owner would not recover it.  As the sentencing court pointed             out,  the robbers  might have  "had an  accident" in  a high             speed chase, "crashed the car,"  or the car might have "been             riddled  by bullets" shot  by pursuing police.   The robbers             abandoned  the car,  on the  street, some distance  from the             bank.    To  take a  car  unlawfully,  knowing (and  thereby             intending)  that it  be subject  to  these risks  of further             destruction and  theft would seem  to amount to  acting with             sufficient conscious  disregard in  respect to  the risk  of             eventual  non-recovery that  a  trier  of  fact  might  find                                         -6-                                          6             traditional (larcenous)  theft.  See,  e.g., Piscattano, 352                                              ___   ____  __________             A.2d at 785.                       Regardless,  the  Guidelines  do   not  limit  the             Commentary's  word  "taken"  to  circumstances  involving  a             "permanent" deprivation of property.  The Commentary relates              _________             to an entire  guideline, the title of which  makes clear its             application, not only to larceny, but also to "embezzlement"             and  to  "other  forms of  theft."    Embezzlement  need not             involve an intent to deprive permanently.  See, e.g., United                                          ___________   ___  ____  ______             States  v.  Anderson, 850  F.2d  563,  565  (9th Cir.  1988)             ______      ________             (intent   to  deprive  permanently  is  not  an  element  of             embezzlement); United States v.  Shackleford, 777 F.2d 1141,                            _____________     ___________             1143 (6th  Cir. 1985)  (same), cert.  denied, 476  U.S. 1119                                            _____________             (1986); United  States v. Waronek,  582 F.2d 1158,  1161 n.4                     ______________    _______             (7th  Cir.  1978)   (same).    Nor  is  there  a  "permanent                                                                _________             deprivation"  requirement found in  respect to such   "other             forms  of theft,"  as "joyriding,"  which the law  of Puerto             Rico, like that  of several states, criminalizes  along with             larceny  and without distinction.   See P.R.  Laws Ann. tit.                                                 ___             22,    4272 (theft statute similarly prohibits permanent and             temporary  deprivations); Ga. Code  Ann.   16-8-1(1) (same);             S.D. Codified Laws Ann.   22-1-2(12) (same); Wash. Rev. Code               9A.56.020(1) (same); cf. Brown v. Ohio, 432 U.S. 161, 163-                                    ___ _____    ____                                         -7-                                          7             64 (1977) (discussing state law that regarded joyriding as a             lesser  included offense of  larceny); State v.  Reeves, 342                                                    _____     ______             So. 2d 605, 608 (La. 1977) (same); Commonwealth v. Giannino,                                                ____________    ________             358 N.E.2d 1008, 1010 (Mass.  1977) (same); Model Penal Code                                                         ________________             art.  223,    223.9 (discussing  unauthorized  use of  motor             vehicles  in section on  "Theft and Related  Offenses"); see                                                                      ___             also United  States v.  Deggs, 632 F.2d  829, 831  (9th Cir.             ____ ______________     _____             1980) (discussing 18 U.S.C.   1707, referred to by the theft             guideline,  as a "joyriding" statute that requires no intent             to  deprive permanently); United  States v. Henry,  447 F.2d                                       ______________    _____             283, 284-85 (3d Cir.  1971) (discussing 18 U.S.C.   661 as a             theft   statute  that   requires   no   intent  to   deprive             permanently); S. Rep. No. 307,  97th Cong., 1st Sess. at 714             (1981).                       We   recognize   that  the   Guidelines'   similar             treatment of permanent  and temporary takings means  that an             offender's  punishment  will  reflect the  full  value  of a             "taken" car returned  to its owner undamaged.   But, we have             no doubt  that  the Guidelines  intend  this result.    They             specifically provide that "loss is  the value of the vehicle             even if  the vehicle is recovered immediately."   The reason             is that the  Guidelines here are concerned  with punishment,             not  restitution; and, they  consequently focus on  the fact                                         -8-                                          8             that the offender's  behavior created a significant  risk of                                                                  ____             loss  -- a  risk that  existed whether  or not  the property             owner eventually suffered harm.  See, e.g., United States v.                                              ___  ____  _____________             Brach, 942  F.2d 141, 143  (2d Cir. 1991); United  States v.             _____                                      ______________             Cockerham, 919 F.2d 286, 289 (5th Cir. 1990);  United States             _________                                      _____________             v. Parker,  903 F.2d  91, 105 (2d  Cir.), cert.  denied, 498                ______                                 _____________             U.S.  872  (1990).    We  cannot  say   the  Guidelines  are             unreasonable in keying  punishment to risk of  serious loss.             And, in this  case, both  temporary loss  and a  significant             risk of serious (permanent) loss are present.                       For these  reasons, the  judgment of  the district             court is                       Affirmed.                       ________                                         -9-                                          9
