
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-2307                                    UNITED STATES,                                      Appellee,                                          v.                                KEITH ADAM RICHARDSON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________               James  C.  Munch,  III, with  whom  Marvin  H.  Glazier, and               ______________________              ___________________          Vafiades, Brountas & Kominsky were on brief for appellant.          _____________________________               Michael M.  DuBose, Assistant  United States  Attorney, with               __________________          whom Jay P.  McCloskey, United States Attorney, was  on brief for               _________________          appellee.                                 ____________________                                   January 28, 1994                                 ____________________                      BOWNES, Senior Circuit Judge.  Defendant-appellant,                      BOWNES, Senior Circuit Judge.                              ____________________            Keith A.  Richardson, was  tried and convicted  by a  jury of            conspiring to transport, possess, and sell stolen property in            interstate commerce in  violation of 18 U.S.C.     371, 2314,            2315 and 2.   His appeal raises four issues:  (1) whether the            court  erred in admitting into evidence written statements of            a  co-conspirator ; (2) whether there was sufficient evidence            for  defendant's conviction; (3)  whether the court  erred in            giving  the jury  a willful  blindness  instruction; and  (4)            whether the court  erred in sentencing defendant.   We affirm            across the board.                                   Factual Summary                                   Factual Summary                                   _______________                      Defendant  and his  father operated  a  business in            Waterville,  Maine,  called  the  Skowhegan  Coin  and  Stamp            Corporation,  from August 1989 through  June of 1991.  During            this time defendant bought and sold hundreds  of thousands of            dollars worth  of jewelry mailed  to him from Arizona  by one            Chip Bond (a/k/a  John MacLean).   The jewelry packages  were            sent via  Federal Express  with fictitious  return names  and            addresses.  Defendant paid for  the jewelry initially in cash            and then  by postal  money orders made  out to "cash."   Both            types of payment were sent  via Federal Express.  Bond became            the target  of a joint  federal and state  investigation into            numerous residential burglaries  involving thefts of  jewelry            in the  Phoenix area of  Arizona.  Several pieces  of jewelry                                         -2-                                          2            stolen  from the Phoenix vicinity were traced to defendant in            Maine.  In March 1991, Bond telephoned defendant and told him            that  "they"  were  under FBI  surveillance,  and  he accused            defendant  of  being  an  informant.    Defendant steadfastly            maintained  that until  he  received the  phone  call he  was            totally  unaware that  the packages  shipped to  him  by Bond            contained stolen jewelry.                   The Admission of the Alleged Hearsay Statements                   The Admission of the Alleged Hearsay Statements                   _______________________________________________                      The  disputed  statements (Ex.  22-A)  were letters            from Bond  to defendant  sent along with  the jewelry.   They            discussed, described, and evaluated the jewelry contained  in            the packages.  Some of them gave specific directions for sale            and  payment.   The  evidence  showed  the letters  were  all            written by  the same individual,  who signed some of  them as            "Chip."     Defendant  was  addressed  as  "Keith."    Expert            testimony, agreed to  by stipulation,  established that  both            Bond's  and defendant's fingerprints  were on  the documents.            The government obtained  the letters from the  Skowhegan Coin            and Stamp  Corporation pursuant  to a  subpoena for  business            records.                      Fed R. Evid. 801(d)(2)(E) provides:                         (d) Statements which  are not hearsay.                             Statements which  are not hearsay.                      A statement is not hearsay if                          . . .                         (2) Admission by  party-opponent.  The                             Admission by  party-opponent.                      statement is offered against a party  and                      is                         . . .                                         -3-                                          3                         (E) a statement  by a coconspirator of                      a  party   during  the   course  and   in                      furtherance of the conspiracy.                      Defendant attacks the  admission of the  statements            on  procedural and substantive  grounds.  Our  analysis melds            the  objections together.    We  start  with  the  procedural            objection.   In United  States v.  Petrozziello, 548 F.2d  20                            ______________     ____________            (1st Cir. 1977), we held  that Fed. R. Evid. 104(a) requires,            in  a conspiracy  case, that  questions  of admissibility  be            determined solely  by the  judge.  We  further held  that the            civil standard of preponderance of the evidence should be the            test for admissibility:                      [I]f  it is more likely than not that the                      declarant and the  defendant were members                      of   a   conspiracy  when   the   hearsay                      statement   was   made,  and   that   the                      statement  was  in   furtherance  of  the                      conspiracy, the hearsay is admissible.            Petrozziello,  548  F.2d   at  23.    In   United  States  v.            ____________                               ______________            Ciampaglia, 628  F.2d 632 (1st Cir.), cert.  denied, 449 U.S.            __________                            _____  ______            956, and cert. denied, 449 U.S. 1038 (l980), we established a                 ___ _____ ______            "timing" rule to be followed in determining the admissibility            of out-of-court statements.                         If   the   prosecution   attempts   to                      introduce into  evidence an  out-of-court                      declaration   under    Fed.   R.    Evid.                      801(d)(2)(E),  the   trial  court,   upon                      proper objection, may conditionally admit                      the declaration.   If the  declaration is                      conditionally admitted, the  court should                      inform  the parties on  the record out of                      the  hearing of  the  jury  that (a)  the                      prosecution will be  required to prove by                      a preponderance  of the  evidence that  a                                         -4-                                          4                      conspiracy  existed,  that  the declarant                      and defendant were  members of it  at the                      time that  the declaration was  made, and                      that the  declaration was  in furtherance                      of the conspiracy, (b) that at  the close                      of all the evidence the court will make a                      final Petrozziello determination  for the                            ____________                      record,  out of the hearing of the jury .                      . . .            Ciampaglia, 628 F.2d at 638 (footnote omitted).            __________                      When defendant objected to the evidentiary offer of            the  statements, the trial  court invoked a  bench conference            and stated in pertinent part:                         I am satisfied,  based on the evidence                      that has been presented thus far, that it                      is  more likely  than  not, which  is the                      standard  under  Petrozziello,  that  the                                       ____________                      declarant and the  defendant were members                      of the  conspiracy when  these statements                      were  made and  that the  statements were                      made  in furtherance  of that  conspiracy                      and that it is admissible.                         I will, in accordance with the circuit                      court's instructions in  Petrozziello, at                                               ____________                      the conclusion of  the government's case,                      which I assume is very soon, make a final                      determination if something happens during                      cross-examination or something that would                      change the court's conclusion.                         So that this  ruling is conditional in                      that  sense   and  I'll   make  a   final                      determination   at   the   end   of   the                      government's case, which  I understand is                      the procedure set up by the First Circuit                      to handle these kinds of issues.  Okay?            Neither  party advised the court that its final determination            should be  made at the close of all  the evidence, not at the                                            ___            end  of the  government's case.    The court  made its  final                                         -5-                                          5            determination  at the  end  of  the  government's  case,  and            admitted thestatements intoevidence. Defendant didnot object.                      Defendant  contends  that   the  court's  procedure            violated the Ciampaglia rule, and for that reason argues that                         __________            there  must be a new trial.  We  agree that the court did not            follow  Ciampaglia,  but conclude  that  a new  trial  is not                    __________            warranted.   We find  that, because  the defendant  failed to            object when  the court first informed counsel how it intended            to proceed and failed to object again when the court made its            final  ruling admitting the statements, there was a waiver of            the  Ciampaglia  rule.1   In  Ciampaglia  we faced  the  same                 __________               __________            situation, and stated:                         In the instant  case, however, neither                      appellant nor anyone else objected to the                      timing of  the district  court's finding.                      Appellant  failed to  make any  objection                      setting forth the  reasoning that he  now                      persuades us  to  adopt.    Even  in  the                      Eighth Circuit, which  held two years ago                      that district courts should  make a final                      preponderance determination at the end of                      all  the evidence,  failure to  object at                      trial   to   the  omission   of   such  a                      determination  bars  an  appellate  [sic]                      from raising the  point on appeal  in the                      absence of plain error.  United States v.                                               _____________                      Baykowski, 615 F.2d 767 (8th Cir. 1980).                      _________            628 F.2d at 638.                                            ____________________               1In  fact, defense counsel  did more than  fail to object.            When  he was  informed of  the procedure  the  court proposed            following, and asked  if it was "Okay," he said "Fine."  This            was tantamount to giving the judge a go-ahead signal.                                         -6-                                          6                      Defendant's failure to object implicates the plain-            error  doctrine of  Fed.  R. Crim.  P.  52(b), which  states:            "Plain  errors or defects affecting substantial rights may be            noticed although  they were not  brought to the  attention of            the court."  The Supreme Court teaches:  "The Rule authorizes            Courts  of  Appeals  to correct  only  particularly egregious            errors,  those errors  that  seriously  affect the  fairness,            integrity or  public  reputation  of  judicial  proceedings."            United States v. Young, 470  U.S. 1, 15 (1985) (citations and            _____________    _____            internal  quotation marks omitted).   We have  read the trial            record  and Ex.  22-A  carefully and  have  found nothing  in            defendant's case that  would have required or  even suggested            the exclusion of the  statements.  At the time the court made            its  conditional   ruling  there  was  a   solid  evidentiary            foundation  for it,  which was  not eroded  by  the testimony            presented   during  defendant's  case.    We  hold  that  the            statements were  properly admitted  under Fed.  R. Evid.  801            (d)(2)(E).     Consequently,  we  need   not  consider  their            admissibility  under  the Business  Record  exception to  the            Hearsay Rule.                             Sufficiency of the Evidence                             Sufficiency of the Evidence                             ___________________________                      We have stated the standard of review for assessing            the sufficiency  of the evidence  after a  verdict of  guilty            innumerable  times.     We  cannot  improve  on   our  latest            statement:                                         -7-                                          7                      Following a  guilty verdict,  a reviewing                      court   must   scrutinize   the   record,                      eschewing   credibility   judgments   and                      drawing  all  reasonable   inferences  in                      favor  of the verdict,  to ascertain if a                      rational  jury   could  have   found  the                      government  proved  each element  of  the                      crime  beyond  a  reasonable  doubt.   To                      sustain a conviction, the court need  not                      conclude  that  only   a  guilty  verdict                      appropriately  could  be reached;  it  is                      enough that  the finding  of guilt  draws                      its essence  from a plausible  reading of                      the record.              United States v. Sepulveda, No.  92-1362, et al., slip op. at            _____________    _________            7  (1st Cir.  Dec.  20, 1993)  (citations omitted);  see also                                                                 ___ ____            United  States  v. Echeverri,  982  F.2d 675,  677  (1st Cir.            ______________     _________            1993).                      The  question  is  whether  there  was   sufficient            evidence  for  a rational  jury to  find beyond  a reasonable            doubt that  defendant conspired  with Chip  Bond, a/k/a  John            MacLean, to transport,  possess, and sell stolen  property in            interstate commerce.  We find that there was.                      We have stated what the  government has to prove in            order to  obtain  a  conviction  on a  conspiracy  charge  as            follows:                      The  essential elements  of a  conspiracy                      are that  it was  willfully formed,  that                      the accused willfully became a member  of                      the  conspiracy,  that  the  conspirators                      thereafter knowingly  committed at  least                      one  of  the overt  acts  charged  in the                      indictment, and  that such overt  act was                      knowingly  done  in furtherance  of  some                      object or  purpose of the  conspiracy, as                      charged.                                         -8-                                          8            United States v.  Latham, 874 F.2d 852, 863  (1st Cir. 1989).            _____________     ______            See also  United States v.  Barker Steel Co., 985  F.2d 1123,            ___ ____  _____________     ________________            1127-28 (1st Cir. 1993); United States v. Hurley, 957 F.2d 1,                                     _____________    ______            4 (1st Cir. 1992), cert. denied, 113 S. Ct. 60 (1993).  And a                               _____ ______            conspiracy may be  proved by either direct  or circumstantial            evidence.  United States v. Jadusingh, Nos. 92-2299, 92-2404,                       _____________    _________            slip op.  at 14-15 (1st Cir.  Jan. 4, 1994).   The government            fully met its burden of proof.                      There  is  no  point  in rehearsing  the  evidence.            Defendant  does not dispute  the evidence.   His sole defense            was that  he neither  intended to conspire,  nor did  in fact            enter into a conspiracy with Bond to transport, possess,  and            sell stolen property  in interstate commerce.   Suffice it to            say that the jury believed otherwise, and there was more than            sufficient evidence for a reasonable jury to find as it did.                          The Willful Blindness Instruction                          The Willful Blindness Instruction                          _________________________________                      Defendant contends  that there  was not  sufficient            evidence  to  ground  a willful  blindness  instruction.   He            asserts,  in the alternative, that even if there were grounds            for such a charge, the  instruction actually used was flawed.            According  to defendant, the trial judge should have included            the  caveat  that  even  if  defendant  deliberately  avoided            knowledge,  he  could  not be  convicted  if  he subjectively            believed that he  was not contributing to  criminal activity.            Defendant's Brief at 19.                                         -9-                                          9                      At the outset of our discussion, we note once again            that our  analysis must be  made within the framework  of the            plain error  doctrine.  See  supra at 6-7.   Defendant points                                    ___  _____            out that  in a  chambers conference prior  to the  charge, he            objected  to   the   court's   proposed   willful   blindness            instruction.  But  this was only  the first step.   It is  an            ironclad   rule  in  this  circuit  that  "failure  to  renew            objections after the  charge constitutes waiver of  any claim            of error."   United States v. Mendoza-Acevedo, 950  F.2d 1, 4                         _____________    _______________            (1st Cir. 1991).  See also  Wartski v. Bedford, 926 F.2d  11,                              ___ ____  _______    _______            22 (1st  Cir. 1991).   No objection to the  willful blindness            instruction was  made after the  charge.  This means  that we            review only for  plain error.  United States  v. McMahon, 938                                           _____________     _______            F.2d 1501, 1510 (1st Cir. 1991).                      The willful blindness instruction was as follows:                         The  element   of  knowledge   may  be                      satisfied by inferences  drawn from proof                      that  the  defendant  deliberately closed                      his  eyes to  what  otherwise would  have                      been obvious to  him if you  so find.   A                      finding  beyond  reasonable  doubt  of  a                      conscious purpose to  avoid enlightenment                      about  whether  the  jewelry  was  stolen                      would permit  an inference  of knowledge.                      Or stated  in another way,  a defendant's                      knowledge of a fact  may be inferred from                      willful  blindness  to the  existence  of                      that fact.                         It is entirely up to you as to whether                      you  find any  deliberate closing  of the                      eyes and the inferences to be  drawn from                      any  such   evidence.     A  showing   of                      negligence or  mistake is  not sufficient                                         -10-                                          10                      to  support a  finding of  willfulness or                      knowledge.                      United  States v.  Littlefield, 840  F.2d  143, 147                      ______________     ___________            (1st  Cir.), cert.  denied, 488  U.S. 860 (1988),  states the                         _____  ______            rule in this circuit on a willful blindness instruction:                         It is now  established in this circuit                      that a  willful blindness  instruction is                      proper  if a defendant  claims a  lack of                      knowledge, the facts  suggest a conscious                      course of  deliberate ignorance,  and the                      instruction, taken as a whole, cannot  be                      misunderstood as  mandating an  inference                      of knowledge.                In United States v. St. Michael's Credit Union, 880 F.2d 579,               _____________    __________________________            585 (1st Cir. 1989), we pointed out:                         "The purpose of  the willful blindness                      theory is to impose criminal liability on                      people who, recognizing the likelihood of                      wrongdoing,    nonetheless    consciously                      refuse   to   take   basic  investigatory                      steps."      [S]ee   United   States   v.                                   _____   _______________                      Zimmerman, 832  F.2d 454,  458 (8th  Cir.                      _________                      1987)   (willful  blindness   instruction                      "allows the  jury to impute  knowledge to                      [a defendant] of  what should be  obvious                      to him, if it found, beyond  a reasonable                      doubt,  a  conscious   purpose  to  avoid                      enlightenment.").            (Citation omitted.)                      We  now  turn  to  a  review  of  the  evidence  to            determine  whether  giving  a  willful blindness  instruction            amounted to  plain error.   The first  flag that  should have            aroused  concern about  the  source of  the  jewelry was  the            manner  in which  Bond shipped  it to  defendant.   For about            eighteen  months packages of  jewelry were sent  uninsured to                                         -11-                                          11            defendant via  Federal Express.   None of  the packages  gave            Bond's  name  as  the  sender.   Quite  the  contrary:    the            information  on the packages stated false names and addresses            for the sender.   Telephone numbers were not  given; the word            "unlisted"  was used  for  phone information.    No bills  or            invoices accompanied  the weekly jewelry shipments.  Instead,            Bond enclosed typed instructions with most shipments, Ex. 22-            A, as to the sale  of the jewelry.  If  a sale price was  not            suggested, defendant was told to "see what you can get."                      The second flag that should have raised defendant's            suspicion was  the telephone communication  system that  Bond            imposed on  defendant.  Defendant could only  contact Bond by            calling Bond's beeper  number.  Bond's method  of telephoning            defendant was by collect calls to defendant from pay phones.                      The  third flag  of  suspicion  was  the  way  Bond            insisted on being paid.  Payment  had to be made by overnight            mail on the day the jewelry arrived.  At first Bond asked for            payments in cash.  When  it became obvious that cash payments            entailed the  risk of loss  or theft  or claims by  Bond that            payments had  not been made,  postal money orders  were used.            Bond warned defendant during the time of cash payments not to            stack $100  bills on  top of one  another because  this would            give the feel of money.  When money orders became the mode of            payment, Bond warned defendant that weekly purchases of large            money orders were  "unusual" and defendant should  be careful                                         -12-                                          12            about arousing suspicions  by the IRS.  Bond  explicitly left            it up to defendant to avoid problems in Maine.                      These three  flags  were sufficient  for a  willful            blindness instruction, but the most significant blinders that            defendant wore were  woven from his  unquestioning acceptance            of hundreds  of thousands  of dollars  worth of jewelry  from            someone he  did not know  on the representation that  it came            from an estate.   Defendant, according to his own  testimony,            met Bond first  on August 23,  1989, and spent  under a  half            hour  with him.   Bond  had some  chains and rings  for sale.            Defendant only  bought part of  the lot, because some  of the            pieces were overpriced.  At Bond's request defendant paid for            the jewelry with  a check made out  to cash.  Bond  came back            within a few days and  defendant bought a pair of unusual  $5            gold coin cuff links from him.   About a month later, in late            September of  1989,  Bond called  defendant and  asked if  he            remembered him.   Defendant testified  "I had no idea  who he            was."  He only remembered Bond, when Bond reminded him of the            $5 gold coin cuff links.  Bond, according to defendant,                      wanted to  know if I would liquidate some                      estate jewelry for him and that,  since I                      was a dealer  from the area that  he grew                      up, he would allow me to do it as long as                      I was going to pay good prices for it and                      that was about it.            Shortly thereafter the packages of jewelry started to arrive.                      At  no time  prior  to March  19,  1991, when  Bond            telephoned  defendant, and advised him that "they" were under                                         -13-                                          13            FBI surveillance and accused defendant of being an informant,            did  defendant,  according   to  his   testimony,  have   any            suspicions  about  the  source  of  the  jewelry  or  who his            supplier  was.  Only once  did defendant check  on an item, a            watch, that  had  been sent  to him.   And  that  was at  the            suggestion  of one of his  customers, Paul Zebiak.  Defendant            told  Zebiak that  there was  no police  record of  the watch            having been stolen.      The jury  could well  have concluded            that defendant was  so blinded by the steady  flow of jewelry            that he chose not to question  either its source or the  bona            fides of the sender.                      We find that  there was an ample  evidentiary basis            for a  willful blindness instruction.   Nor can any  fault be            found with the wording of the instruction; it fully comported            with this circuit's requirements.                      We further  find  that the  court  did not  err  in            refusing   to  instruct  the  jury  that  even  if  defendant            deliberately closed  his eyes to  the facts, he could  not be            convicted  if  he  subjectively  believed  that  he  was  not            contributing to criminal activity.   To begin with, there was            no objection after the charge  to the court's refusal to give                         _____            the  instruction.   The plain  error  doctrine thus  applies.            United States v. Martin, 815  F.2d 818, 824 (1st Cir.), cert.            _____________    ______                                 _____            denied,  484  U.S.   825  (1987).    Secondly,   the  court's            ______            instructions  on intent made  it clear that  actual intent by                                         -14-                                          14            the defendant had to be proven by the government.  The court,            inter alia, charged as follows:            _____ ____                         Two  types  of intent  must  be proved                      beyond  a  reasonable   doubt  before  an                      individual  can be said to be a member of                      a  conspiracy:  An intent to agree and an                      intent  that  the  substantive  crime  be                      committed.   In order for you to find the                      defendant   guilty   of   the  conspiracy                      offense,   you   must   find   beyond   a                      reasonable  doubt that  he had  an actual                      intent, whether  reasonable or  not, that                      one of the alleged crimes be committed.            We  conclude  that  the  willful  blindness  instruction  was            appropriate.                                         -15-                                          15                                    The Sentencing                                    The Sentencing                                    ______________                      The pertinent  sentencing findings of  the district            court were as follows:                                  Base Offense Level                                  Base Offense Level                                  __________________                      I find the following:                      (a)  Under United States  Sentencing                           Commission   Guideline   (here-                           inafter  "Guideline") 3D1.2(b),                           the base offense level is 4 for                           receiving,    transporting   or                           possessing stolen property.                      (b)  Pursuant      to      Guideline                           2B1.1(b)(1)(K), if the value of                           the  stolen  property   was  at                           least  $200,000,  but  not more                           than $350,000, there  is a ten-                           level increase.  In the instant                           offense,  $280,000   of  stolen                           property      is      involved.                           Therefore,  the  base   offense                           level is increased 10 levels to                           14.                                   (c)  Section  2B1.2(b)(4)(A) of  the                           Guidelines   further   provides                           that   if   the   offense   was                           committed  by a  person in  the                           business   of   receiving   and                           selling     stolen    property,                           increase  by four  levels.   As                           this   offense   involved   the                           defendant    receiving   stolen                           property  and  selling   it  to                           wholesalers,    a    four-level                           increase is merited, increasing                           the base offense level to 18.                      (d)  The defendant has  not accepted                           responsibility for the offense.                           He is, therefore,  not eligible                           to have the  base offense level                           decreased   two  levels   under                           Guideline 3E1.1(a).  Therefore,                           the Total Offense Level is 18.                                         -16-                                          16                      (e)  The     defendant's    Criminal                           History Category is Category I.                         Based on a Total  Offense Level of  18                      and a Criminal History Category of I, the                      applicable Guideline  range is  27 to  33                      months.                       The  sentencing  judgment  was  that  defendant  be            incarcerated for a term of  twenty-nine months; that he pay a            fine of $6,000;  that he pay restitution of  $2,500; and that            he serve a term of suupervised release of three years.                      Defendant  makes  two objections  to  the sentence.            First, he argues that the evidence does not support a finding            that  $280,000 worth  of stolen  property  was involved  and,            therefore,  the  ten-level increase  pursuant  to U.S.S.G.               2B1.1(b)(1)(K) was  invalid.   Second, defendant attacks  the            application of   2B1.2(b)(4)(A), on the ground that there was            no evidentiary  support for  the finding that  he was  in the            business  of  receiving  and  selling  stolen  property  and,            therefore, the four-level increase was invalid.2                        There  can  be  no  question  about  the applicable            standard of review:                                            ____________________                 2Section  2B1.2(b)(4)(A)  was deleted  by  consolidation            with      2B1.1  effective   November  1,   1993.     Section            2B1.1(b)(5)(B),  which  is  identical  to     2B1.2(b)(4)(A),            provides:                      If the offense  involved receiving stolen                      property, and the defendant  was a person                      in the business of receiving and  selling                      stolen property, increase by 4 levels.                                         -17-                                          17                         Appellate review of a district court's                      application of the  sentencing guidelines                      is  ordinarily  a   dichotomous  process.                      First, the court of appeals determines de                                                             __                      novo the reach of  the relevant guideline                      ____                      to ascertain  whether  it  applies  in  a                      given case.   Once the  court of  appeals                      has defined  the guideline's  meaning and                      scope, it reviews  the sentencing court's                      factfinding only for clear error.              United States v.  St. Cyr, 977 F.2d 698,  701 (1st Cir. 1992)            _____________     _______            (citations omitted).                        Because both attacks on the sentence are based on a            claim of lack of evidentiary  support and do not question the            reach of the  relevant guidelines, our  review is limited  to            whether the  district court's  factual findings  were clearly            erroneous.                                      Valuation                                      _________                      We start with the Commentary to   2B1.1.  Note 3 of            the  Commentary states  in  pertinent  part:   "3.   For  the            purposes  of  subsection   (b)(1),  the  loss  need   not  be            determined  with  precision.   The  court  need only  make  a            reasonable  estimate   of  the  loss,  given   the  available            information."                      To  successfully challenge  the district's  factual            finding of the amount of the loss, a defendant                      must carry  the burden  of satisfying  us                      that the  court's evaluation of  the loss                      was not only inexact, but was outside the                      universe of acceptable computations.  See                                                            ___                      U.S.S.G.    2F1.1, comment.  (n. 8)  (the                      sentencing  court   "need  only   make  a                                         -18-                                          18                      reasonable estimate of the range of loss,                      given the available information").            United States  v.  Tardiff, 969  F.2d  1283, 1288  (1st  Cir.            _____________      _______            1992).                      As we read  the pre-sentence report and  the record            of  the  sentencing  hearing, the  district  court  based its            valuation  on   the  following  considerations.    First,  it            considered the total amount of jewelry that  passed from Bond            to  defendant during the  eighteen months of  the conspiracy.            Second,  it  took into  account  several  inventory valuation            figures.   Documentary  evidence showed  that defendant  paid            Bond at  least $179,000 for  the jewelry.   Defendant himself            estimated that he paid Bond between $150,000 to $200,000  for            the  jewelry.  The sales to the  three main purchasers of the            jewelry, Spector,  Zeliak  and  Levy,  totalled  $392,878.00.            This  figure was supported  by computer and  invoice records.            The valuation amount of $288,853.84 was the most conservative            estimate  in the pre-sentence report.  The probation officer,            after carefully reviewing the receipts and inventory records,            subtracted  from the  total sales  of  $392,878.00 all  sales            which arguably could  have been for non-jewelry  items.  This            resulted  in the valuation  amount of $288,853.84  adopted by            the court.                      This finding  was  neither  clearly  erroneous  nor            "outside the universe of acceptable computations."   Tardiff,                                                                 _______            969 F.2d at 1288.                                         -19-                                          19                      Was Defendant a Person in the Business of                      _________________________________________                        Receiving and Selling Stolen Property?                        ______________________________________                      We have recently spoken directly to the application            of   1B1.1(b)(5)(B)  (formerly   2B1.1(b)(1)(K)).   In United                                                                   ______            States v. St.  Cyr, 977 F.2d 698, the  district court applied            ______    ________            the  four-level  increase "because  it 'infer[red]  that from            [St. Cyr's]  willingness and  [the] easy  manner in  which he            came  into participation  in this  [affair] .  . .  he  was a            person predisposed in  buying and selling  stolen property.'"            Id. at  701.   In discussing the  applicability of  the four-            ___            level increase we first noted that  under   2B1.2 there was a            commentary  by the  Sentencing Commission  that when  persons            receive  stolen property for resale, "'the amount of property            is likely to  under-represent the scope of  their criminality            and  the extent to  which they encourage  or facilitate other            crimes.'     2B1.2,  comment. (backg'd)."   Id. at 702.   The                                                        ___            government urged that the commentary was as far as we need go            to decide the  issue.  Fortunately, and  perhaps presciently,            we did  not rest our  decision on the commentary  and pointed            out  that  it was  inadequate  and "prove[d]  too  much." Id.                                                                      ___            Section  2B1.2 was  deleted by  consolidation  with    2B1.1,            effective November 1,  1993.  There is no  such commentary to            the  present    2B1.1.   The  commentary was,  of course,  in            effect at the time of defendant's sentencing, but it does not            play a significant role in our analysis.                                         -20-                                          20                      After discussing the  commentary, we surveyed other            appellate  decisions  addressing  the  applicability  of  the            increase  for  "a person  in  the business  of  receiving and            selling stolen property."  We concluded that,                      there is  no bright  line that  separates                      defendants who  are "in the  business" of                      dealing in stolen property from those who                      are  not  so  engaged.    Therefore,   in                      mulling   whether  to   impose  the   ITB                      enhancement,  the  sentencing  judge must                      undertake   a    case-by-case   approach,                      weighing    the    totality     of    the                      circumstances,  with  particular emphasis                      on the regularity and sophistication of a                      defendant's   operation,   in   order  to                      determine whether a defendant  is "in the                      business" of receiving and selling stolen                      property.            Id. at 703.            ___                      We  listed and explained  a number of circumstances            for  the  district  court to  factor  into  its applicability            assessment.    The  most  important  was  the  regularity  of            defendant's dealings in stolen  merchandise.  In  considering            this factor we suggested that,                      a sentencing court can certainly consider                      evidence  about  the   amount  of  income                      generated through fencing activities, the                      defendant's    past    activities,    his                      demonstrated  interest  in  continuing or                      expanding the operation, and the value of                      the property handled.  Where there is  no                      indication either of a pattern of dealing                      in  stolen  property  or  of a  developed                      operation that promises  such consistency                      for the future, the defendant is unlikely                      to be "in the business."            Id.            ___                                         -21-                                          21                      A  second  circumstance  to be  considered  is  the            sophistication of defendant's operation.  We observed:                         We  agree that  the sophistication  of                      the  defendant's  operation is  a  second                      circumstance  that  may  itself  indicate                      business conduct.  We  can easily imagine                      situations in  which a  fencing business,                      although very  much a business,  has been                      recently launched and therefore traces no                      historical   pattern.     In   order   to                      distinguish  a new-to-the-business  fence                      from an amateur,  however, the government                      must at  least offer  a meaningful  proxy                      for regularity, say,  by showing that the                      operation   crossed   a    threshold   of                      sophistication and commitment.            Id. at 704.            ___                      The St. Cyr court found that there  was no evidence                          _______            from which either regularity or sophistication could be found            and held that four-level  increase was inapplicable.   In the            case at bar we come to the opposite conclusion.                      The  question  is whether  the  district court  was            clearly erroneous in finding that defendant was "a person  in            the business of receiving and  selling stolen property."  The            evidence,  viewed  in   the  light  most  favorable   to  the            government, clearly demonstrates that defendant  was a fence.            Defendant bought stolen jewelry from  Bond on a weekly  basis            for an eighteen month period.   The amount defendant paid for            the jewelry was much less than its market value.  He sold the            jewelry as soon  as he could after  he received it.   He used            the normal channels  of his coin shop business  to make these            sales, and he kept records of these transactions.                                           -22-                                          22                      There  can be  little doubt  that  the sale  of the            stolen  jewelry was vital to defendant's business.  Defendant            testified  that he  lost  $2,000  during  his first  year  in            business.    After  Bond started  supplying  him  with stolen            jewelry,  defendant's  business tripled.    And the  business            closed down three months after the flow of jewelry stopped in            March of 1991.                      The sales end of  defendant's receiving and selling            stolen  goods proceeded  with  all  the  accouterments  of  a            business.     Although  we   would  not  call   the  business            arrangements between  defendant and  Bond "sophisticated"  in            the dictionary sense, they were a modus operandi designed  to                                              _____ ________            minimize suspicion  and to  keep both  supplier and  receiver            financially  satisfied.  Until  the police blew  the whistle,            defendant ran a successful fencing operation.                      The judgment of the district court is Affirmed.                                                            Affirmed.                                                            _________                                         -23-                                          23
