
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 96-1592                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    ROBERT MCMINN,                                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                               Torruella, Chief Judge,                                          ___________                           Cyr* and Boudin, Circuit Judges.                                            ______________                                                                                      ____________________             Matthew J. Lahey, with whom McLaughlin, Hemeon & Lahey, P.A. was             ________________            ________________________________        on brief for appellant.             Jean B. Weld, Assistant United States Attorney, with whom Paul M.             ____________                                              _______        Gagnon, United States Attorney, was on brief for appellee.        ______                                                                                      ____________________                                   January 13, 1997                                                                                      ____________________                                                                                         ____________________             *Cyr, J., was not present at oral argument.                     CYR,  Circuit Judge.   Appellant  Robert McMinn  mounts                    CYR,  Circuit Judge.                             _____________          four challenges to the  sentence imposed following his conviction          on several felony counts  relating to his acquisition, interstate          transportation, and  sale of  stolen audio and  video components.          See 18 U.S.C.    371,  2314 & 2315.  As the  sentence enhancement          ___          imposed pursuant  to U.S.S.G.    2B1.1(b)(4)(B) for  engaging "in          the  business of  receiving and  selling stolen  property" ("ITB"          enhancement)  constituted error,  we  vacate  the district  court          judgment and remand for resentencing.                                           I                                          I                                      DISCUSSION                                      DISCUSSION                                      __________          A.   Upward Departure (U.S.S.G.   4A1.3)          A.   Upward Departure (U.S.S.G.   4A1.3)               __________________________________                    The  district court granted the government's motion for          an upward departure under  U.S.S.G.   4A1.3 (1995), from  a Total          Offense  Level ("TOL")  of  18 and  a  Criminal History  Category          ("CHC") of III, to TOL 20 and  CHC VI, on the ground that CHC III          would  have  underrepresented the  seriousness of  McMinn's prior          criminal  conduct  and  the  likelihood of  recidivism.    McMinn          contends that the  three affidavits relied  upon by the  district          court for its departure-related findings were not reliable.1                      First,  the district  court  did  not  place  principal          reliance on  the challenged  affidavits for its  factual findings                                        ____________________               1We  review factual  findings  for clear  error, see  United                                                                ___  ______          States v. Shrader, 56 F.3d 288, 292 (1st Cir. 1995), mindful that          ______    _______          the sentencing court  is vested with "wide discretion"  to deter-          mine whether sentencing information is reliable.  Id. at 294.                                                             ___                                          2          relating to the seriousness  of McMinn's prior criminal conduct.2          Moreover, though McMinn claims that the affidavits were uncorrob-          orated, and  the affiants untrustworthy,  he chose not  to cross-          examine one of the  affiants at sentencing.  In  addition, he had          cross-examined  the other two  affiants at  the earlier  trial on          drug-conspiracy charges before the same judge.  See supra note 1.                                                          ___ _____          Finally,  the district  court  was  presented  with  unchallenged                                                               ____________          police  reports, describing various  burglaries and corroborating          other  information  in the  affidavits.    See United  States  v.                                                     ___ ______________          Shrader, 56  F.3d 288, 294 (1st  Cir. 1995).  There  was no clear          _______          error.          B.   Obstruction of Justice Enhancement (U.S.S.G.   3C1.1)          B.   Obstruction of Justice Enhancement (U.S.S.G.   3C1.1)               ____________________________________________________                    Second, McMinn challenges  a two-level enhancement  for          obstruction of justice, see U.S.S.G.   3C1.1,  based on threaten-                                  ___          ing letters  he sent in  February, April and  October of 1995  to          Steven Serfass, a prospective  government witness.  McMinn argues          that Serfass  was not connected with  the investigation, prosecu-          tion, or  sentencing of  the "instant" offenses  involving inter-          state transportation, receipt, and sale of stolen audio and video                                        ____________________               2Rather, the  upward departure  decision was based  upon the          following considerations as well:               (1)  five felony drug convictions entered June 13, 1989, and          six convictions based on  criminal conduct occurring between 1990          and  1994, which were not  taken into account  in calculating the          CHC;               (2) an uncharged burglary;               (3) an uncharged  conspiracy to distribute large  quantities          of marijuana between 1987 and 1995; and, finally,                (4) the fact that McMinn  was on bail when he committed  the          stolen-property offense, and had also violated parole and commit-          ted various  other infractions, including drug  use, while incar-          cerated.                                          3          components, since Serfass neither testified, nor were the threat-          ening  letters admitted, at the trial on these charges.  Instead,          Serfass  testified at an earlier trial on drug charges which were          severed  from the stolen-property charges  on June 20,  1995.  As          the enhancement for obstruction of justice under U.S.S.G.   3C1.1          applies  only to  obstructing an "investigation,  prosecution, or          sentencing  of  the  instant  offense," McMinn  claims  that  the                               _______          district  court erred  as  a matter  of  law in  concluding  that          conduct  unconnected  with   the  stolen-property  charges  could          support the enhancement.  We find no error.                      At the  time  McMinn mailed  the  threatening  letters,          Serfass remained a prospective  government witness in relation to          the "instant offense"; i.e., the stolen-property charges.  It was                                 ____          not until January  1996, immediately  prior to the  trial on  the          stolen-property charges, that it  became clear that Serfass would          not testify.   Thus, there was  no error in the  district court's          determination that McMinn  attempted to obstruct the  prosecution          of the  stolen-property charges  by mailing the  threatening let-          ters.  C. ITB Enhancement (U.S.S.G.   2B1.1(b)(4)(B)(1995))                 C. ITB Enhancement (U.S.S.G.   2B1.1(b)(4)(B)(1995))                    ________________________________________________                    Third, McMinn contends that the district court erred in          imposing   a  four-level   ITB  enhancement   under   U.S.S.G.             2B1.1(b)(4)(B)  (1995).   Relying primarily  on United  States v.                                                          ______________          Braslawsky, 913 F.2d 466, 468 (7th Cir. 1990), he argues that  an          __________          ITB enhancement  is impermissible unless the defendant was in the          business  of  receiving and  selling  property  stolen by  others                        _________ ___                                ______          (i.e.,  in  the business  of  "fencing"  stolen  property).   The           ____                                          4          district court ruling that  McMinn's criminal conduct came within          the  ITB enhancement guideline is  reviewed de novo.   See United                                                      __ ____    ___ ______          States v. St. Cyr, 977 F.2d 698, 701 (1st Cir. 1992).           ______    _______                    The   four-level  ITB  enhancement  guideline,  by  its          express terms,  applies only  if "the offense  involved receiving          stolen property, and the  defendant was a person in  the business                                                           __  ___ ________          of  receiving   and  selling   stolen  property."     U.S.S.G.             __  _________   ___          2B1.1(b)(4)(B) (emphasis added).  Thus, on its face at least, the          ITB guideline does not apply to a defendant who makes  a business          of stealing property; that is, a professional "thief," as distin-          guished from a professional  fence.  See Braslawsky, 913  F.2d at                                               ___ __________          468 (holding that,  by its  terms, the ITB  enhancement does  not          apply to a professional thief).                      Under the common-law tradition, stealing  property from          another normally  does not equate with  "receiving" property from          its  rightful owner.  See  Milanovich v. United  States, 365 U.S.                                ___  __________    ______________          551, 558 (1961) (Frankfurter, J., dissenting) ("a thief cannot be          charged with  committing two  offenses     that is,  stealing and          receiving   the  goods   he  has   stolen[,]  .   .  .   for  the          commonsensical,  if not  obvious,  reason that  a  man who  takes          property does not at the same  time give himself the property  he          has  taken.") (citations  omitted); Baugh  v. United  States, 540                                              _____     ______________          F.2d 1245, 1246 (4th Cir.  1976) ("logic . . . instructs  us that          there  is an  inherent inconsistency  in treating  a taking  as a          receipt"); see also United States v. Trzcinski, 553 F.2d 851, 853                     ___ ____ _____________    _________          (3d  Cir. 1976), cert. denied,  431 U.S. 919  (1977).  Therefore,                           ____  ______                                          5          statutes which criminalize "receiving"  are generally not thought          to  target the  thief himself,  but the  wrongdoer who  knowingly          acquires  the loot  from  or  through  the  thief.    See,  e.g.,                                                                ___   ____          Milanovich, 365  U.S. at  729-730; Heflin  v. United States,  358          __________                         ______     _____________          U.S.  415, 419-20 (1959);  United States v.  Washington, 861 F.2d                                     _____________     __________          350,  352 (2d  Cir. 1988).   Thus,  a fair  reading of  the plain          language  employed  in section  2B1.1(b)(4)(B)  strongly suggests          that  a  defendant engaged  in selling  only  the property  he is          responsible  for stealing  has  not "received"  it  in the  sense          contemplated by the Sentencing Commission.                      Should there be any doubt about the plain language, the          parallel development of the sentencing guideline governing thefts          of property, see U.S.S.G.   2B1.1, and the guideline on receiving                       ___          stolen  property, see id.   2B1.2, together with the evolution of                            ___ __          the language  employed in  the ITB enhancement  guideline itself,          see id.    2B1.1(b)(4)(B), tend  to confirm  that the  Commission          ___ __          envisioned  that "theft"  alone not  constitute a  "receiving" of          stolen property for these purposes.   Under the original Sentenc-          ing  Guidelines,  U.S.S.G.     2B1.1  (1987)  governed  "Larceny,          Embezzlement and Other Forms of  Theft," whereas U.S.S.G.   2B1.2          (1987)  governed "Receiving  Stolen  Property."   The offense  of          receiving stolen property  was subject to an ITB enhancement, see                                                                        ___          U.S.S.G.   2B1.2(b)(2)(A) (1987) ("If the offense [i.e. receiving                                                ___ _______  ____          stolen property] was  committed by  a person in  the business  of                                                       __  ___ ________  __          selling  stolen  property,  increase  by  4  levels.")  (emphasis          _______  ______  ________          added), which clearly  applied to the professional fence  and not                                          6          to  a defendant who simply sold property  he pilfered.  See id.                                                                    ___ __          2B1.2,  comment (backg'd)  (1987)  ("Persons  who receive  stolen                                                            _______          property  for resale  receive a  sentence enhancement  . .  . .")                        ______          (emphasis added);3 Braslawsky,  913 F.2d at  468.  The  guideline                             __________          governing theft crimes included no corresponding ITB enhancement.          See U.S.S.G.   2B1.1 (1987).          ___                    The  disjunctive treatment  required  under  these  two          guideline sections  clearly implied  that the Commission  did not          intend that  the ITB enhancement apply  to defendants responsible          only for the  theft of the ill-gotten  property and not  its "re-          sale."   See supra note 3.  At the time the Sentencing Guidelines                   ___ _____          were  promulgated, the  Commission consistently  demonstrated its          intention that  like enhancements  be applicable to  both "theft"          and  "receipt"  offenses  by  including  a  parallel  enhancement                                        ____________________               3The  Commission's  choice  of  the  word  "resale"  vividly          suggests a prior sale  (by the thief to the  fence) conspicuously          lacking  between the  rightful owner  and the  thief.   Thus, the          commentary provides authoritative definition  to the scope of the          original ITB enhancement.  See Stinson v. United States, 508 U.S.                                     ___ _______    _____________          36,  38 (1993) (" . . . commentary  in the Guidelines Manual that          interprets  or explains  a guideline  is authoritative  unless it          violates the Constitution or  a federal statute, or is  inconsis-          tent with, or a plainly  erroneous reading of, that guideline.").          The  background commentary to U.S.S.G.   2B1.2 was deleted at the          time U.S.S.G.    2B1.2 was  consolidated into  U.S.S.G.    2B1.1.          See U.S.S.G.   2B1.1, as amended by amendment 481 (effective Nov.          ___                   __ _______ __          1, 1993).   But though there  is no longer any  commentary on the          ITB enhancement,  see United States  v. Richardson, 14  F.3d 666,                            ___ _____________     __________          674 (1st Cir. 1994), neither is there any reason to believe  that          consolidation  of the  two original  guideline sections,  and the          consequent deletion  of the  background commentary, was  meant to          alter the scope  of the ITB enhancement.  Rather,  along with the          consolidation and  deletion of  24 other guideline  sections, the          Commission consolidated   2B1.2 with   2B1.1 because the offenses          were  closely related and  the Commission wanted  to simplify the          Guidelines Manual.  See U.S.S.G. App. C, amend. 481 (1995).                              ___                                          7          provision in each guideline.  See id.    2B1.1(b)(2); 2B1.2(b)(3)                       ____             ___ __          (1987) (parallel enhancements relating  to stealing and receiving          (stolen)  firearm, destructive  device or  controlled substance);          id.     2B1.1(b)(4); 2B1.2(b)(2)(B) (1987) (parallel enhancements          __          for more than minimal planning relating to stealing and receiving          (stolen)  property);  id.       2B1.1(b)(6);  2B1.2(b)(4)  (1987)                                __          (parallel enhancements for engaging in organized criminal activi-          ty  relating to  stealing and  receiving (stolen)  property); see                                                                        ___          also U.S.S.G. App. C, amend. 117 (effective Nov. 1, 1989) (adding          ____          ITB  enhancement  to U.S.S.G.     2B6.1     trafficking  in motor          vehicles  with altered or  obliterated identification  numbers             "to resolve an inconsistency between . . . section [2B6.1] and             2B1.2").                      The subsequent  evolution of the ITB enhancement guide-          line  likewise  substantiates  that it  was  meant  to  cover the          professional fence, not the  thief.  As the  Commission broadened          the  scope of U.S.S.G.   2B1.2 ("Receiving Stolen Property"), the          language  in the ITB enhancement itself was amended to retain its          narrow  focus  upon defendants  who  "fence" stolen  goods.   The          "Receiving  Stolen Property"  guideline  was amended  in 1989  to          cover  "Transporting,  Transferring, Transmitting,  or Possessing          Stolen Property."   U.S.S.G.    2B1.2, as amended  by amend.  102                                                 __ _______  __          (effective  Nov. 1,  1989).   Under the  same amendment,  the ITB          enhancement guideline  was changed to read, "[i]f the offense was          committed  by a person in  the business of  receiving and selling                                                      _________ ___          stolen property,  increase by  4 levels."   Id.    2B1.2(b)(3)(A)                                                      __                                          8          (1989) (emphasis  added to  amendatory  language).   Thus, it  is          apparent from  the context  that the  words "receiving  and" were          included  so as to restrict application of the ITB enhancement to          defendants who receive and sell stolen property (i.e. profession-                         _______ ___          al  fences) and to exclude  from its reach  others, including the          thief, who  transport, transfer,  transmit, or possess,  and then          sell, stolen property.                     In  1993, the  separate guideline  provisions governing          theft offenses and the receiving of stolen property were consoli-          dated.  See  U.S.S.G.   2B1.1 as amended by amend. 481 (effective                  ___                   __ _______ __          Nov. 1, 1993).   The same 1993 amendment introduced  the language          currently found  in the ITB enhancement  guideline, prescribing a          four-level  enhancement  "[i]f  the  offense  involved  receiving                                          _________________________________          stolen property, and the  defendant was a person in  the business          _______________          of receiving  and selling stolen property."  Id.   2B1.1(b)(5)(A)                                                       __          (1993) (emphasis added to amendatory language).                      The historical context in  which the 1993 amendment was          adopted thus demonstrates that the reconstructed  ITB enhancement          was designed to  apply only to  defendants who "received"  stolen          property and  whose offense of  conviction would come  within the          scope of  former U.S.S.G.   2B1.2  ("Receiving Stolen Property"),          as  opposed to  defendants who  pilfered the  property  and whose          offense of  conviction  therefore came  within the  scope of  the          original version of U.S.S.G.   2B1.1.  It seems reasonably clear,          therefore, viewed  in an  historical perspective, that  the words                                          9          "receiving and" were added  to preserve the limited reach  of the          ITB enhancement.                    On the other hand, the interpretation propounded by the          government  presumes that  the Commission  twice amended  the ITB          enhancement  so as to make  it applicable only  to defendants who          "receive" stolen  property, yet intended the  term "receiving" to          mean merely "taking possession  of," thereby encompassing  simple          theft.  Though as a literal matter, without regard to its histor-          ical context,  the term "receiving" does  not necessarily exclude          "theft,"  we  conclude  that  the references  to  defendants  who          "receive and sell" stolen  property were not meant to apply  to a          defendant who simply sells only property he has stolen.                    Our construction is guided by conventional interpretive          principles.  See United States v. DeLuca, 17 F.3d 6, 10 (1st Cir.                       ___ _____________    ______          1994) (applying  customary rules  of statutory  interpretation to          sentencing guidelines).   It  avoids interpreting the  words "re-          ceiving  and" out of the ITB enhancement guideline as surplusage.          See  United States  v.  Campos-Serrano, 404  U.S.  293, 301  n.14          ___  _____________      ______________          (1971)  ("A statute  ought, upon  the whole,  to be  so construed          that, if it can be prevented, no clause, sentence, or  word shall          be  superfluous, void, or insignificant.").   Whereas, were we to          adopt the government's view     that the language in  the current          ITB enhancement ("in the business of receiving and selling stolen          property") reaches both the  thief and the professional fence              then  the  language  of the  original  ITB  enhancement ("in  the                                          10          business . . . of selling stolen property") need never have  been          amended in 1989.                     Our  interpretation  comports   with  basic   guideline          sentencing policy  as  well.   See  18  U.S.C.     3553(a)(1),(2)                                         ___          (A),(B),(C)&(5).  The services of a professional fence undoubted-          ly facilitate  the ready,  advantageous  disposition of  property          stolen  by  the less  well-situated  thief,  thereby providing  a          significant  inducement to  commit  theft offenses.   See  United                                                                ___  ______          States v. Sutton, 77 F.3d 91, 94 (5th Cir. 1996); Braslawsky, 913          ______    ______                                  __________          F.2d at  468; United  States v.  Bolin, 423  F.2d  834, 838  (9th                        ______________     _____          Cir.),  cert. denied,  398 U.S.  954 (1970);  Carl Klockars,  The                  ____  ______                                          ___          Professional Fence  144 (1974)  (discussing the adage,  "if there          __________________          were no receivers, there would be no thieves").  It is reasonable          to  assume, as a general rule, that a professional fencing opera-          tion  efficiently can  dispose  of greater  quantities of  stolen          goods than could  the individual thieves  who supply the  profes-          sional fence, see  Klockars at 69-135, thereby enabling  both the                        ___          thieves  and  the   fence  to  realize  greater   returns.    Cf.                                                                        __          Braslawsky, 913 F.2d at 468.  Thus, as a rule professional fences          __________          may be expected to induce more stealing.                     Furthermore,  the  interposition  of   a  sophisticated          fencing operation between the thief and the ultimate purchaser of          the stolen  property may  confound or obstruct  the investigation          and prosecution  of theft offenses.   Often, the  stolen property          itself  may be the only tangible evidence connecting the thief to          the  crime.  Since the professional fence is better positioned to                                          11          move stolen goods quickly  into the hands of the  ultimate "black          market" consumer, see  Klockars at  77 n.2, 106-13,  the loot  is                            ___          more  likely to be dispersed before  law enforcement agencies can          respond.   Consequently, the fence  not only affords  the thief a          less  risky and more  efficient alternative for  disposing of the          booty,  but the  increased  efficiency comes  at  the expense  of          effective law enforcement.4                    The  government  argues,  nonetheless,  that   the  ITB          enhancement guideline should be construed simply to require proof          that McMinn's sales of  stolen goods had a certain  regularity or          sophistication.  Cf. St. Cyr, 977 F.2d at 703 (adopting a "total-                           __  _______          ity of the circumstances"  test).  For the reasons  stated above,          we reject the government's interpretation as less consistent with          the language, history, and purpose of the  ITB enhancement guide-          line.5         We  think  it  important  to point  out  that  our          opinion in St. Cyr does not support the position advocated by the                     _______                                        ____________________               4These considerations  represent an especially  serious hin-          drance to law enforcement when the professional  fence utilizes a          legitimate "front," such  as a pawn shop or an  outlet dealing in          distressed goods at sharply  lower prices.  See United  States v.                                                      ___ ______________          Robinson, 698 F.2d 448, 453 (D.C. Cir. 1983); Klockars at 69-135.          ________          The "front"  may afford  a superficially valid  justification for          the low sale prices (i.e. the goods were pawned to the "front" or                               ____          acquired  as distressed goods) and thus serve to impede an infer-          ence that the fence knew the goods were stolen.                 5Nor is the caselaw in other circuits  inconsistent with the          requirement that the defendant must be a "fence" in order for the          ITB  enhancement  to apply.  See, e.g.,  Sutton,  77 F.3d  at 94;                                       ___  ____   ______          United States v. Zuniga, 66 F.3d 225, 229 (9th Cir. 1995); United          _____________    ______                                    ______          States  v.  Warshawsky,  20 F.3d  204,  214-15  (6th Cir.  1994);          ______      __________          United States v.  King, 21 F.3d  1302, 1303 n.2  (3d Cir.  1994);          _____________     ____          United States v. Esquivel, 919 F.2d 957, 959 (5th Cir. 1990); see          _____________    ________                                     ___          also St. Cyr, 977 F.2d at 703.          ____ _______                                          12          government.  St. Cyr neither expressed nor implied disapproval of                       _______          the basic  proposition that the ITB  enhancement guideline should          apply only to "professional fences."   See id. at 703 ("We  think                                                 ___ ___          this assessment fits  harmoniously .  . . with  the decisions  of          those  few circuit courts that have addressed the meaning of [the          ITB guideline].").   Rather, the  St. Cyr panel  observed that  a                                            _______          "professional fence" test  is not particularly  helpful.  Id.  at                                                                    ___          702-03 ("Defining the  term 'professional fence' is as  chancy as          defining the language  of the guideline itself.").   Although the          "totality  of the  circumstances" test announced  in St.  Cyr did                                                               ________          define  the term "in the  business," the court  never reached the          question squarely presented here;  viz., whether a defendant need                                             ___          have  been  in the  business  of "receiving  and  selling" stolen                                            _________  ___          property (i.e. acting as a  fence) in order for the ITB  enhance-                    ____          ment to  apply.  See  also United States  v. Richardson, 14  F.3d                           ___  ____ _____________     __________          666,  675 (1st Cir. 1994)  ("evidence . .  . clearly demonstrates          that  defendant was a fence");  cf. United States  v. Tutiven, 40                                          __  _____________     _______          F.3d 1, 8 (1st Cir. 1994) ("As it was stipulated that Tutiven did          not steal the motor vehicles . . . logic pretty  much compels the          conclusion that Tutiven knowingly 'received  stolen property.'"),          cert. denied, 115 S. Ct. 1391 (1995).            ____  ______                    The  government  in  our  case  points  to  substantial          evidence that McMinn engaged not  only in extensive thievery  but          in storing  and disseminating stolen  property as well.   Nothing          prevents  a professional  thief  from also  conducting a  fencing          operation  of sufficient size  and continuity to  qualify for the                                          13          ITB enhancement; criminals, too,  may have more than one  line of          business.   For the reasons we have already indicated, however, a          thief would not qualify for the ITB enhancement if the only goods          he distributed were those which he had stolen.                    There is nothing in the government's analysis or in the          district court's  findings to indicate that  McMinn sold property          which  he had not stolen.  Of course, since reasonable inferences          are  always permitted, the case  might be quite  different if the          only  evidence were that McMinn had stored and sold large quanti-          ties of stolen  property.  Here,  however, the evidence  revealed          that  McMinn  had stolen  a great  deal of  property and,  as the          record now  stands, we have no  basis to suppose that  he did not          steal it all.                    Finally, the  government argues in the alternative that          McMinn  should be  treated  as a  professional  fence because  he          neither proffered  evidence, nor  admitted, that he  had pilfered          all  the stolen  goods  he sold.   Since  it is  the government's          burden to prove  that McMinn  received and sold  goods stolen  by          others, however,  its argument is fundamentally flawed.   See St.                                                                    ___ ___          Cyr, 977 F.2d at 702 ("the government bears the burden  of estab-          ___          lishing that the ITB enhancement applies in a given case").6                                          II                                          II                                      CONCLUSION                                      CONCLUSION                                      __________                                        ____________________               6As the ITB  enhancement is  inapplicable to  McMinn, it  is          unnecessary  to resolve  the  "double counting"  claim; that  is,          whether  it was appropriate to consider the same criminal conduct          in determining the upward departure and the ITB enhancement.                                              ___                                          14                    For the foregoing reasons,  the district court judgment          is vacated and  the case is remanded  for resentencing consistent          with this opinion.                                            15
