                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-11-2002

USA v. Andeliz
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2901




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Recommended Citation
"USA v. Andeliz" (2002). 2002 Decisions. Paper 348.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/348


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                                                NOT PRECEDENTIAL

               THE UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                          ___________

                          No. 01-2901
                          ___________


                   UNITED STATES OF AMERICA

                             vs.

                       ARCADIO ANDELIZ

                              Appellant

                          ___________


        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW JERSEY

                (D.C. Criminal No. 00-cr-00438)
        District Judge: The Honorable Joseph E. Irenas

                          ___________

           Submitted Under Third Circuit LAR 34.1(a)
                          June 6, 2002



     BEFORE: SLOVITER, NYGAARD, and BARRY, Circuit Judges.




                     (Filed: June 11, 2002)

                          ___________

                      OPINION OF THE COURT
                          ___________


NYGAARD, Circuit Judge.
         Appellant, Arcadio Andeliz, was convicted by a jury of one count of
knowingly and willfully receiving and possessing stolen property, in violation of 18
U.S.C. 659, and two counts of knowingly and willfully receiving and possessing stolen
merchandise having a value in excess of $5,000 and which crossed a state boundary, in
violation of 18 U.S.C. 2315. At sentencing, the District Court applied a four-level
enhancement because Andeliz was in the business of receiving and selling stolen
property. This enhancement resulted in an adjusted offense level of 16 which, combined
with a criminal history category of I, gave him a Sentencing Guideline Range of 18-24
months. The District Court imposed an 18-month sentence for each count, to be served
concurrently. Andeliz appeals raising the issues shown under Section I below, which
have been taken verbatim from his brief. We will affirm.
                              I. ISSUES
                         1.   Under U.S.S.G. 2B1.1(b)(4)(B), whether the District Court abused
                its discretion and erred as a matter of law in sentencing the
                defendant to eighteen months incarceration when the Court ruled
                that the defendant would be sentenced as "being in the business of
                selling stolen goods."
                         2.   Under Apprendi, whether the sentencing factor outlined in U.S.S.G.
                2B1.2 was an element of the crime, subject to determination beyond
                reasonable doubt by the jury when the defendant received a sentence
                in excess of the statutory maximum penalty.
                         3.   Under Fed. R. Evid. 404B, whether the evidence of past
                wrongdoings was not related to the material issue, was not proved
                by clear and convincing evidence, and its prejudicial value
                outweighed its probative value.

                         II. DISCUSSION
         The history of this case is well known to counsel, the parties, and the
Court. Inasmuch as we are writing a non-precedential opinion and only for the parties
herein, we see no need to recapitulate either the extensive facts upon which Andeliz was
convicted, or the procedure that preceded the conviction and sentencing therein.
         With respect to the first issue raised by the appellant, we conclude that the
District Court properly applied the enhancement in U.S.S.G. 2B1.1(b)(4)(B). It is clear
from the record that Andeliz was engaged in the business of receiving and selling stolen
property. Andeliz was caught with a substantial amount of stolen goods. His fencing
operation was also conducted with sufficient regularity to support a finding that he was
in the business of receiving stolen property.
         We likewise conclude that the District Court properly rejected Andeliz’s
claim raised at sentencing, that, under Apprendi v. New Jersey, 530 U.S. 466 (2000), it
was necessary that the jury, not the sentencing court, have found the facts that established
the loss amount, and that Andeliz was in the business of receiving stolen property.
Andeliz’s 18 month sentence was well below the ten year statutory maximum sentence
for either of the offenses of conviction--Apprendi simply does not apply.
         Finally, there is likewise no merit in appellant’s third issue, and we
conclude that the District Court properly exercised its discretion by admitting evidence,
pursuant to Fed. R. Evid. 404(b), of Andeliz’s uncharged possession of $24,000 worth of
stolen Walmart merchandise. This evidence was used to prove an element of the charged
crimes   that Andeliz knew that the Sam’s Club merchandise in his possession had been
stolen. As the District Court instructed the jury, the evidence was admitted to prove
Andeliz’s guilty knowledge, and not to show his criminal propensity. Where, as here, the
appellant vigorously disputes the government’s allegation that he knew that the goods he
received were stolen, the District Court has the discretion to admit evidence of other
instances in which the defendant possessed stolen property to prove that knowledge.
That evidence was properly admitted here.

                         III. CONCLUSION
         In sum, and for the foregoing reasons, we will affirm the judgment of the
District Court entered on July 10, 2001.


_________________________


TO THE CLERK:

         Please file the foregoing opinion.




                                 /s/ Richard L. Nygaard
Circuit Judge
