                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 5 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 99-1460
                                                    (D.C. No. 99-CR-112-D)
    GILBERT MEDINA,                                        (D. Colo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before McKAY, PORFILIO, and ANDERSON, Circuit Judges.


         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Gilbert Medina pleaded guilty to an information charging him with theft of

government property and aiding and abetting in violation of 18 U.S.C. §§ 641 and

2. He was sentenced to three years probation, including six months of home


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
detention, and ordered to pay $61,572 in restitution. Defendant challenges his

sentence. We have jurisdiction under 28 U.S.C. § 1291.

      Defendant Medina was a civil service general aviation technician for the

Colorado Army National Guard (COARNG) at Buckley Air National Guard Base

in Aurora, Colorado. In November 1998, Anthony Gutierrez, a civil service

engine technician at Buckley, asked the defendant if he wanted to make some

extra money working after hours at the base by assisting in the removal of main

rotor blades from three Army-owned helicopters located on the base. Defendant

Medina agreed. The defendant along with Carmela Rodriguez, a general

mechanic/civilian technician at COARNG, removed a set of two blades each from

three helicopters. The work was performed in a hangar at Buckley over a period

of three days, working two to three hours each day after normal working hours.

      On the third day, after the removal of the third and last set of blades, the

defendant called Mr. Gutierrez and informed him the work was complete. Shortly

thereafter, Gutierrez arrived at Buckley in a civilian truck. The defendant helped

load three sets of rotor blades and two helicopter engines onto the truck.

Gutierrez then drove the truck off the base to a farm in or near Watkins,

Colorado. The defendant followed in another vehicle. At the farm, the defendant

helped unload the rotor blades.

      Mr. Gutierrez sold the three sets of rotor blades to SECO Aviation, an


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aircraft parts supplier in Georgia, for $43,572, and one of the helicopter engines,

identified as the third engine, for $18,000. He was offered $16,000 by SECO for

the other engine, identified as the fourth engine. Approximately two weeks later,

Defendant Medina was paid $4,000 by personal check from Gutierrez. Defendant

cashed the check. The removal and sale of the blades and engines were not

authorized by COARNG or the Army.

      In April 1999, the parties entered into a plea agreement, which contained a

sentencing computation the parties acknowledged was not binding on the district

court. In this computation, the total offense level was calculated at seven with a

criminal history category of I. The sentencing guideline for a violation of 18

U.S.C. § 641 is U.S.S.G. § 2B1.1, and the based offense level is four. Under §

2B1.1(b)(1)(H), the offense level was increased by seven because the “loss,”

which only included the three sets of rotor blades, was calculated at being more

than $40,000 but less than $70,000. Under § 3B1.2(b), the defendant’s offense

level was decreased by two because of his minor participation in the criminal

activity, and decreased by two under § 3E1.1(a) because of his acceptance of

responsibility.

      The presentence report (PSR) however contained a recommended total

offense level of ten. The report included not only the three sets of rotor blades

but also the two helicopter engines as part of relevant conduct in a jointly


                                         3
undertaken criminal activity. See § 1B1.3(a)(1)(B). Thus, under § 2B1.1(b)(1)(I),

the offense level was increased by eight because the “loss” was calculated at more

than $70,000 -- $43, 572 for the rotor blades, $34, 000 for the engines -- but less

than $120,000. The report also contained a recommendation that the defendant’s

offense level be increased by two under § 2B1.1(b)(4)(A) for more than minimal

planning.

      Defendant Medina objected to the inclusion of the engines in the loss

calculation, arguing that his involvement with the engines was incidental. The

government also objected to inclusion of the engines, arguing that it could not

prove criminal intent as to theft of the engines by the defendant, and that it just

didn’t think the engines should be considered. Finally, the defendant objected to

the two-level increase for more than minimal planning. After hearing testimony

at the sentencing hearing on September 22, 1999, the district court adopted the

factual findings and the guidelines application set forth in the PSR.

      Defendant Medina argues that because the inclusion of the engines under

relevant conduct increased his sentence, the district court erred in failing to use

the clear and convincing evidence standard. Because the defendant did not raise

this argument below, our review is limited to plain error. See Fed. R. Cr. P.

52(b); United States v. Brown, 164 F.3d 518, 522 (10th Cir. 1998). "To constitute

plain error the district court's error must have been both ‘obvious and


                                          4
substantial.’" United States v. Barber, 39 F.3d 285, 288 (10th Cir. 1994). This

court has held that the preponderance standard applies to fact finding in the

sentencing process. “At least as concerns making guideline calculations, the issue

of a higher than a preponderance standard is foreclosed in this circuit." United

States v. Washington, 11 F.3d 1510, 1516 (10th Cir. 1993). Defendant’s

argument fails.

      The defendant next argues that the district court’s “disregard” for the

parties’ stipulation of facts in the 1998 plea agreement “offends” the public policy

behind the December 1999 amendments to Fed. R. Cr. P. 11(e)(1)(B). See Aplt.

Brief at 13-14. The defendant appears to suggest that the district court should

have limited its relevant conduct determination to only those facts set forth in the

plea agreement’s stipulation. Because he did not object below, our review is for

plain error. See Brown, 164 F.3d at 522. In a Rule 11(e)(1)(B) agreement, the

government makes a sentencing recommendation, or agrees not to oppose a

defendant's request for a particular sentence, with the understanding that such

recommendation or request shall not bind the district court. See United States v.

Siedlik, 231 F.3d 744, 748 (10th Cir. 2000). In this case, the plea agreement only

computed the sections of the guidelines that the parties anticipated being

applicable. Further, even if the plea agreement were construed as falling within

Rule 11(e)(1)(B), the parties acknowledged in the agreement that the district court


                                         5
was not bound by the plea agreement’s stipulation of facts or sentencing

computation. See Vol. 1, Doc. 8 at 3 and 5. This argument fails.

      The defendant also argues that the district court erred in imposing a eight

level enhancement to his sentence under § 2B1.1(b)(1). The guidelines provide

for such an enhancement when the value of the property taken or “loss” is more

than $70,000 but less than $120,000. See § 2B1.1(b)(1)(I). The defendant

challenges this enhancement on three grounds.

      He first claims that rather than make its own findings and decisions, the

district court merely relied on the PSR’s findings and recommendations. See Vol.

4, PSR. Because the defendant failed to raise this issue below, our review is

limited to plain error This argument lacks merits. The record clearly

demonstrates that the district court did its own analysis of the facts in open court

after hearing testimony and arguments by counsel during the sentencing hearing.

      The defendant next claims that the district court erred in including the

helicopter engines as relevant conduct, particularly over the objections of the

defendant and the government. He argues that the government, not the court,

bears the burden of proof for a sentencing increase.

      “We review questions of law regarding application of the Sentencing

Guidelines de novo [and] . . . findings of fact under the clearly erroneous

standard." United States v. Wiseman, 172 F.3d 1196, 1217-18 (10th Cir.), cert.


                                          6
denied, 528 U.S. 889 (1999). This court "will not disturb a sentencing court's

factual findings unless they are 'without factual support in the record, or if after

reviewing all the evidence we are left with the definite and firm conviction that a

mistake has been made.' " United States v. Moore, 130 F.3d 1414, 1416 (10th

Cir. 1997).

      In the plea agreement, Defendant Medina agreed to be sentenced according

to the Sentencing Guidelines, and agreed that the guidelines would be computed

by taking into account all relevant conduct. See Vol. 1, Doc. 8 at 2. Further, the

defendant acknowledged in the agreement that the district court was not bound by

the stipulation of facts, and that the court, with the aid of the presentence report,

may determine the facts relevant to sentencing. Id. at 3.

      Under the guidelines, a district court at sentencing must consider all

relevant conduct. See § 1B1.3. The scope of relevant conduct includes “all

reasonably foreseeable acts and omissions of others in furtherance of the jointly

undertaken criminal activity, that occurred during the commission of the offense

of conviction.” See § 1B1.3(a)(1)(B); United States v. Melton, 131 F.3d 1400,

1403 (10th Cir. 1997). A defendant may be held responsible for the conduct of

co-conspirators, whether or not the crime was charged as a conspiracy. See

Washington, 11 F.3d at 1516. Thus, in calculating Defendant Medina’s offense

level, the district court was not limited to the rotor blades but could sentence him


                                          7
based on the engines.

       The defendant did not testify during sentencing. Through counsel he

asserted that he knew nothing about the engines until the third night. While

acknowledging that the defendant assisted in loading the engines onto the civilian

truck of Anthony Gutierrez, counsel argued that the defendant’s involvement was

incidental, and that the theft of the engines was conceived and executed by

Gutierrez. 1

       During the sentencing hearing, senior probation officer Anthony Merlo,

who prepared the PSR, testified under oath, see Vol. 3, Sentencing Tr. at 7, to his

guidelines’ determinations and calculations. The officer stated that when the

defendant helped load the rotor blades onto the civilian truck, he also assisted

Gutierrez in loading two helicopter engines, id. at 9, and that the defendant’s

relevant conduct should include the two engines, id. at 10-11. The probation

officer was cross-examined by counsel for the defendant and the government, and

questioned by the court. During cross-examination by counsel for the defendant,

the officer stated that the defendant had earlier testified in court that “on the

evening that the blades were being loaded onto the truck, he was aware they were

stealing equipment from the base.” Id. at 14-15; see also Vol. 2, Plea Tr. at 10,



1
  In a separate criminal action, Mr. Gutierrez pleaded guilty to two counts of
theft of government property in violation of 18 U.S.C. § 641.

                                           8
14, and 31. The court subsequently heard arguments from counsel. At the

conclusion of this process, the court held:

      But in looking at the facts here, here’s what the Court believes
      happened. Mr. Gutierrez was involved in this scheme to steal
      helicopters and engines from the Army and then to sell those to a
      third party, in this case SECO. He enlisted the assistance of Mr.
      Medina to dismantle the helicopter blades; that is, to take the
      helicopter blades apart so that they could then be moved and
      transported. And it took Mr. Medina three nights to do that. And he
      did this after hours. And he knew or should have know that this was
      criminal activity. And in fact, he did know it. He says by the third
      night in his change of plea hearing, so in any event he’s pled guilty
      to, so he knew it was illegal.

      Then we deal with the engine. On the third night, at a time that Mr.
      Medina knew what he was doing was unlawful, he then helped load
      the engine, engines, third and fourth engines, onto the truck. And I
      think it’s all part of the same activity. And for the Court not to treat
      that as relevant conduct would be incompatible and inconsistent with
      the requirements of section 1B1.2 of the guidelines and section 1B1.3
      of the the guidelines. So I’m going to reject the objections or
      overrule the objection, and I will adopt the guideline calculations set
      forth by the probation department because I believe that they’re well-
      founded and consistent with proper interpretation of the guidelines.

Vol. 3, Sentencing Tr. at 32-33. Based on the evidence, the district court did not

err in considering the engines as part of relevant conduct under § 1B1.3, and thus

including them in the loss computation for purposes of § 2B1.1(b)(1).

      The defendant also claims that the district court erred in including the value

of the fourth engine in its loss computation under § 2B1.1(b)(1). The court

calculated “loss” at $43,572 for the three sets of rotor blades, $18,000 for the

third engine, and $16,000 for the fourth engine. The defendant argues that §

                                         9
2B1.1, comment. (n.2), cross-references to § 2X1.1 in the case of a partially

completed offense, and that under § 2X1.1, the “loss” only would be $63,572

because the “victim [SECO] never paid the $16,000 for the fourth engine.” Aplt.

Brief at 21. Because this argument was not raised below, our review is limited to

plain error. "Loss” is the fair market value of the “property taken.” § 2B1.1,

comment. (n.2). The fourth engine was taken without authority from Buckley

with the assistance of the defendant. Thus, the court did not err in including the

value of the fourth engine in the § 2B1.1(b)(1) computation.

      The defendant’s final argument is that the district court erred in imposing a

two-level enhancement under § 2B1.1(b)(4)(A). “More than minimal planning”

exists in any case involving "repeated acts over a period of time, unless it is clear

that each instance was purely opportune.” See § 1B1.1, comment. (n.1(f)); United

States v. Copus, 110 F.3d 1529, 1537 (10th Cir. 1997). The district court found

that the enhancement applied because the defendant engaged in criminal activity

over three “successive” nights, thus it was “more than just an incidental,

opportune activity.” Vol. 3, Sentencing Tr. at 33. The district court did not err.




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The plain language of the guidelines supports the district court's view that three

occasions is enough. See United States v. Bridges, 50 F.3d 789, 792 (10th Cir.

1994).

         AFFIRMED.


                                       Entered for the Court

                                       Monroe G. McKay
                                       Circuit Judge




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