           Case: 15-12815   Date Filed: 06/06/2016   Page: 1 of 8


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-12815
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cr-20921-JEM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                    versus

LUIS ANGEL FELIPE TORRES,
a.k.a. "El Calvo",

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                              (June 6, 2016)

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 15-12815     Date Filed: 06/06/2016    Page: 2 of 8


      Luis Angel Felipe Torres appeals his 61-month imposed after pleading

guilty to one count of bank fraud, in violation of 18 U.S.C. § 1344, and one count

of aggravated identity theft, in violation of 18 U.S.C. § 1028A. On appeal, he

argues that the district court erred by holding him accountable for loss amounts

under U.S.S.G. § 2B1.1(b)(1) arising from relevant conduct in pending state court

cases, and that the court erred in applying a two-level enhancement under §

2B1.1(b)(4) for being in the business of receiving and selling stolen property.

      Torres argues on appeal that the district court erred by including conduct

from pending state court cases, which were not included in the indictment. He

argues that the broad inclusion of uncharged conduct undermines the Sixth

Amendment obligation of defense counsel to provide effective and/or competent

assistance in the plea phase.

      This Court reviews de novo the district court’s interpretation and application

of the Sentencing Guidelines. United States v. Barakat, 130 F.3d 1448, 1452 (11th

Cir. 1997). Section 2B 1.1 (b)( 1) instructs the sentencing court to increase the

offense level by six points if the loss associated with the offense is greater than

$30,000, but less than $70,000. U.S.S.G. § 2B1.1(b)(1)(D)-(E). Regarding

relevant conduct, § 1B1.3 instructs that, for sections such as § 2B1.1, that

determine the defendant’s offense level largely on the basis of the total amount of

loss, the court shall consider all acts and omissions committed, aided, abetted,


                                           2
               Case: 15-12815    Date Filed: 06/06/2016   Page: 3 of 8


counseled, commanded, induced, procured, or willfully caused by the defendant

that were part of the same course of conduct or common scheme or plan as the

offense of conviction. U.S.S.G. § 1B1.3(a)(1)(A) and (a)(2), 3D1.2(d).

      At sentencing, the district court may take into account relevant conduct for

which the defendant was not charged or convicted, so long as the government

proves such conduct by a preponderance of the evidence. See United States v.

Exarhos, 135 F.3d 723, 730 (11th Cir. 1998) (conduct not contained in the

indictment may be considered at sentencing); Barakat, 130 F.3 d at

1452 (conduct for which the defendant was acquitted may be considered at

sentencing).

      Generally, it is preferable to decide an ineffective assistance of counsel

claim on collateral review instead of on direct appeal. See Massaro v. United

States, 538 U.S. 500, 504, 123 S. Ct. 1690, 1694, 155 L. Ed. 2d 714 (2003).

“When an ineffective-assistance claim is brought on direct appeal, appellate

counsel and the court must proceed on a trial record not developed precisely for the

object of litigating or preserving the claim and thus often incomplete or inadequate

for this purpose.” Id. Accordingly, this Court generally does not review claims of

ineffective assistance of counsel raised on direct appeal when “the district court did

not entertain the claim nor develop a factual record.” See United States v. Bender,

290 F.3d 1279, 1284 (11th Cir. 2002).


                                          3
               Case: 15-12815     Date Filed: 06/06/2016   Page: 4 of 8


      Torres’s legal argument that the court should not consider pending state

court conduct, whether uncharged in the indictment or which eventually results in

an acquittal, is foreclosed by binding precedent. See Exarhos, 135 F.3d at 730;

Barakat, 130 F.3d at 1452. Moreover, Torres does not challenge the accuracy of

the factual underpinnings to the relevant conduct, nor does he argue that the

preponderance standard has not been satisfied. His argument that a defendant’s

Sixth Amendment right to competent counsel in the plea phase can be undermined

by the inclusion of uncharged conduct is speculative. Torres does not clarify how

his counsel’s representation during his specific plea process was undermined by

the inclusion of the loss amount from uncharged relevant conduct. Indeed, Torres

never requested to withdraw his plea, and the plea agreement warned both counsel

and Torres that (1) Torres’s sentence would be determined based in part on the

results of the PSI investigation, and (2) the government reserved the right to inform

the court and the probation office of all relevant information concerning the

offenses committed “whether charged or not.” Further, to the extent Torres is

asserting that counsel’s performance was in fact deficient, Torres does not assert,

and a review of the record does not reveal, that he ever alleged ineffective

assistance of counsel before the district court.

      Torres argues the district court improperly applied the two-level

enhancement under § 2B 1.1 (b)(4) for being in the business of receiving and


                                           4
              Case: 15-12815      Date Filed: 06/06/2016   Page: 5 of 8


selling stolen property. He argues that he is a thief, “not a fence,” and thus, the

government failed to show that he both received and sold the stolen property.

      This Court reviews the district court’s underlying findings of fact for clear

error and application of the Guidelines to those facts de novo. United States v.

Saunders, 318 F.3d 1257, 1263 (11th Cir. 2003). Under § 2B1.1(b)(4), a

defendant’s offense level is enhanced by two points “[i]f 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). Application Note

5 states that for the purpose of determining whether a defendant is in the business

of receiving and selling stolen property under subsection § 2B1.1(b)(4), the court

shall consider the following non-exhaustive factors: (A) the regularity and

sophistication of the defendant’s activities, (B) the value and size of the inventory

of stolen property maintained by the defendant, (C) the extent to which the

defendant’s activities encouraged or facilitated other crimes, and (D) the

defendant’s past activities involving stolen property. Id., comment. (n.5).

      In Saunders, this Court reviewed a similar enhancement under §

2B6.1(b)(2), the guideline covering altering or removing motor vehicle

identification numbers. 318 F.3d at 1262. Although this Court considered the

factors set out in § 2B1.1 (b)(4), it “decline[d] to draw directly” from § 2B1.1

(b)(4), and expressly adopted a case-by-case approach employing a totality of the


                                           5
              Case: 15-12815     Date Filed: 06/06/2016    Page: 6 of 8


circumstances test to determine whether a defendant was in the fencing business,

and thus subject to the enhancement. Id. at 1264-65. “[T]he defendant must have,

at a minimum, acted as a fence,” that is, received the stolen property-by accepting

it and having either physical control of or apparent legal power over-and then sold

it. Id. at 1272-73, 1278. “Beyond that, the sentencing court must examine the

totality of the circumstances with a particular emphasis on the regularity and

sophistication of the illegal activity to determine whether the defendant’s conduct

amounted to a fencing business.” Id. at 1273. Factors the court may consider

include “the value of the stolen property, the defendant’s past activities involving

stolen property and the extent to which the illegal operations encouraged or

facilitated other criminal activity.” Id. A defendant himself, and not just his co-

conspirators, must have acted as a fence for the enhancement to apply. Id. at 1263.

      In Saunders, this Court decided that “the enhancement applie[d] to a thief’s

wife who (1) submitted fraudulent paperwork to register at least twenty vehicles

stolen by her husband over a ten-year period; (2) conveyed title to, and

accompanied her husband in delivering, the vehicles to buyers; (3) permitted some

of the vehicles to be kept on her property; and (4) drove at least one of the stolen

vehicles.” Id. at 1261. This conduct showed that the defendant both received and

sold stolen property with regularity and sophistication. Id. at 1261, 1271-72. It is




                                          6
               Case: 15-12815     Date Filed: 06/06/2016    Page: 7 of 8


settled “that a thief who sells goods that he himself has stolen is not in the business

of receiving and selling stolen property.” Id. at 1263 n.7.

       In Bradley, this Court also clarified that § 2B1.1(b)(4) was meant to apply to

“those who act as a fence,” and not the actual thieves. United States v. Bradley,

644 F.3d 1213, 1287 (11th Cir. 2011). The defendant in Bradley was the operative

actor in the scheme, and by paying others to steal the drugs that he would later

resell, he could have been charged with the theft of most, if not all, of the

prescription drugs stolen for later sale. Id. Because he was the thief of all of the

pharmaceuticals later sold, this Court found him to be not a fence, but merely a

thief. Id.

       The district court did not err in applying the § 2B1.1(b)(4) enhancement.

Torres conceded that he recruited others to steal checks, and he later cashed those

checks, which supports a finding that he both personally stole, and “received”

stolen checks from others. Torres also argued that he was “principally paid in

cocaine,” which supports a finding that he also “sold” the checks, some of which,

as Torres admitted, were stolen by those he recruited. Unlike in Bradley, Torres

did not himself steal all of the checks he later “sold,” and did not pay someone else

to steal them, and thus he is not simply a thief. Similar to Saunders, Torres acted

as a fence, that is, he both received property that was stolen and sold stolen

property.


                                           7
            Case: 15-12815   Date Filed: 06/06/2016   Page: 8 of 8


AFFIRMED.




                                     8
