Sentencing Victory! Tenth Reversing 2B1.1(b)(4) Enhancement and Imposition of Fine

U.S. v. Vigil, 2011 WL 1798020 (5/12/11) (Utah) (Published) - And yet another defense victory, this time in sentencing. The 2-level enhancement under USSG § 2B1.1(b)(4) when the defendant is "in the business of receiving and selling stolen property" only applies when the defendant has sold property stolen by others and is in that business. The intent of the provision is to extra-punish professional fences, not people who sell goods they have stolen or use goods others have stolen. In this case, the defendant was found with a bunch of stolen IDs and stolen checks. There was no evidence he had sold, or was going to sell, any stolen items. The government did not prove the error in imposing the enhancement was harmless, even though the d. ct. indicated it thought a higher sentence than the one it imposed may have been appropriate. The district court did not say it would impose the same sentence if it was wrong about what the range was and to impose the same sentence on remand it would have to vary upward 4 months.
The district court also erred when it imposed a fine without considering the defendant's ability to pay it [the presentence report said he did not have the ability to pay a fine and the government did not object to that finding] or the effect of the fine on the ability to pay restitution. The district court provided no reason for the imposition of a fine. The record indicated the court imposed the fine because it was disappointed the plea agreement restricted how much restitution it could order.