United States v. Cruz Santiago

Procedural entryThis page is a short order in United States v. Cruz Santiago. Read the opinion of the Court — 12 F.3d 1 →

Court of Appeals for the First Circuit·Decided December 22, 1993·No. 92-1900·Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 92-1900

UNITED STATES,
Appellee,

v.

NELSON CRUZ-SANTIAGO,
Defendant, Appellant.
__________

No. 92-1917

UNITED STATES,
Appellee,

v.

EDGAR ARCE-RAMOS,
Defendant, Appellant.
____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]
___________________
____________________

Before
Breyer, Chief Judge
___________
Coffin, Senior Circuit Judge,
____________________
and Torruella, Circuit Judge.
_____________
____________________

Rachel Brill with whom Norberto Colon, By Appointment of the
_____________ ______________
Court, was on joint brief for appellants.
Edwin O. Vazquez, Assistant United States Attorney, with whom
_________________
Charles E. Fitzwilliam, United States Attorney, and Jose A. Quiles-
______________________ ________________
Espinosa, Senior Litigation Counsel, Criminal Division, were on brief
________
for appellee.

____________________

December 22, 1993
____________________

BREYER, Chief Judge. Appellants Arce Ramos and
____________

Cruz Santiago, convicted bank robbers, raise one question in

respect to their sentencing. They say that the sentencing

court should not have counted, as a robbery-related "loss"

for sentencing purposes, the value of a car, a Nissan

Sentra, that the robbers seized at gunpoint outside the bank

and drove from the scene of the crime to a second getaway

car. We think the district court was correct to include the

value of the car in calculating the loss, and we therefore

affirm.

The appellants concede the basic facts. Arce

Ramos, along with two other persons, entered a bank, took

$6,160, shot the assistant manager, ran outside the bank,

saw a Nissan Sentra that happened to be passing by, forced

its innocent driver out of the car, and drove off to a

rendezvous point. A private security guard, who had

followed the bank robbers, saw them park the Sentra and get

into a yellow Volkswagen, where two confederates (including

appellant Cruz Santiago) were waiting. All five then drove

off in the Volkswagen, in which the police later found, and

arrested, them.

The sentencing court noted that the relevant

guideline, the robbery guideline, determines a sentence

-2-
2

partly on the basis of a monetary loss table, which

instructs the court to increase the offense level by "one

level" if the loss was more than $10,000 but not more than

$50,000. U.S.S.G. 2B3.1(b)(6)(B). The court added that

one level because it added the Sentra's $4,000 value to the

$6,160 taken in the robbery, yielding a total "loss" of just

over $10,000. The appellants argue that the court ought not

to have included the Sentra's value in this calculation;

and, they say, the court would have (though it need not

have) imposed a lesser sentence had the final offense level

been lower by one. Because the court did not say that it

would have picked the same sentence from the lower (but

overlapping) sentencing range, we assume that the difference

in calculation would have made a difference to the sentence.

And, we proceed to consider appellants' argument. See
___

United States v. Ortiz, 966 F.2d 707, 717-18 (1st Cir.
_____________ _____

1992), cert. denied, 113 S. Ct. 1005 (1993); cf. United
_____________ ___ ______

States v. Concemi, 957 F.2d 942, 952-53 (1st Cir. 1992).
______ _______

The appellants' argument is a simple one. They

note that the robbery guideline Commentary tells the court

that "[v]aluation of loss is discussed in the Commentary" to

the guideline entitled "Larceny, Embezzlement and Other

Forms of Theft." They concede that this latter guideline

-3-
3

defines "loss" as including "the value of property taken."
_____

U.S.S.G. 2B1.1, comment. (n.2) (emphasis added). And,

they concede that they took the Sentra. But, in their view,
____

the court must read the word "taken" as embodying a special

meaning, derived from the common law definition of

"larceny," namely, "taken with intent permanently to

deprive." And, they say they did not intend to deprive its

owner of his Sentra permanently. (After all, they parked it
___________

before they got into the yellow Volkswagen.) For this

reason, they conclude, the "loss" was $6,160, not $10,160.

We disagree with appellants. For one thing, on

their own reasoning, the facts offer sufficient support of

the district court's apparently implicit conclusion that the

Free access — add to your briefcase to read the full text and ask questions with AI

USCA1 Opinion



UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 92-1900

                                    UNITED STATES,
                                      Appellee,

                                          v.

                                NELSON CRUZ-SANTIAGO,
                                Defendant, Appellant.
                                      __________

        No. 92-1917

                                    UNITED STATES,
                                      Appellee,

                                          v.

                                  EDGAR ARCE-RAMOS,
                                Defendant, Appellant.
                                 ____________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Raymond L. Acosta, U.S. District Judge]
                                             ___________________
                                 ____________________

                                        Before
                                  Breyer, Chief Judge
                                          ___________
                            Coffin, Senior Circuit Judge,
                                    ____________________
                            and Torruella, Circuit Judge.
                                           _____________
                                 ____________________

            Rachel  Brill with  whom  Norberto Colon,  By  Appointment  of the
            _____________             ______________
        Court, was on joint brief for appellants.
            Edwin O.  Vazquez, Assistant  United  States  Attorney, with  whom
            _________________
        Charles E. Fitzwilliam,  United States Attorney,  and Jose A.  Quiles-
        ______________________                                ________________
        Espinosa,  Senior Litigation Counsel, Criminal Division, were on brief
        ________
        for appellee.

                                 ____________________

                                  December 22, 1993
                                 ____________________

BREYER, Chief  Judge.  Appellants  Arce Ramos  and
                               ____________

             Cruz Santiago, convicted bank robbers, raise one question in

             respect to  their sentencing.  They say  that the sentencing

             court should not  have counted, as a  robbery-related "loss"

             for sentencing  purposes,  the  value  of a  car,  a  Nissan

             Sentra, that the robbers seized at gunpoint outside the bank

             and drove from  the scene of  the crime to a  second getaway

             car.  We think the district court was correct to include the

             value of the  car in calculating the loss,  and we therefore

             affirm.

                       The  appellants concede  the  basic  facts.   Arce

             Ramos, along with  two other persons,  entered a bank,  took

             $6,160,  shot the assistant  manager, ran outside  the bank,

             saw a Nissan  Sentra that happened to be  passing by, forced

             its  innocent driver  out  of the  car, and  drove off  to a

             rendezvous  point.    A  private  security  guard,  who  had

             followed the bank robbers, saw  them park the Sentra and get

             into a yellow Volkswagen,  where two confederates (including

             appellant  Cruz Santiago) were waiting.  All five then drove

             off in the Volkswagen, in  which the police later found, and

             arrested, them.

                       The  sentencing  court  noted  that  the  relevant

             guideline, the  robbery  guideline,  determines  a  sentence

-2-
                                          2

partly  on  the  basis  of  a  monetary  loss  table,  which

             instructs the  court to increase  the offense level  by "one

             level" if the  loss was more than $10,000 but  not more than

             $50,000.  U.S.S.G.    2B3.1(b)(6)(B).  The  court added that

             one level because it added  the Sentra's $4,000 value to the

             $6,160 taken in the robbery, yielding a total "loss" of just

             over $10,000.  The appellants argue that the court ought not

             to have  included the  Sentra's value  in this  calculation;

             and,  they say,  the court  would have  (though it  need not

             have)  imposed a lesser sentence had the final offense level

             been lower by  one.  Because the  court did not say  that it

             would have  picked the  same  sentence from  the lower  (but

             overlapping) sentencing range, we assume that the difference

             in calculation would have made a difference to the sentence.

             And,  we  proceed  to consider  appellants'  argument.   See
                                                                      ___

             United States  v.  Ortiz, 966  F.2d  707, 717-18  (1st  Cir.
             _____________      _____

             1992), cert.  denied, 113  S. Ct.  1005  (1993); cf.  United
                    _____________                             ___  ______

             States v. Concemi, 957 F.2d 942, 952-53 (1st Cir. 1992).
             ______    _______

                       The  appellants' argument is  a simple one.   They

             note that the  robbery guideline Commentary tells  the court

             that "[v]aluation of loss is discussed in the Commentary" to

             the  guideline  entitled  "Larceny, Embezzlement  and  Other

             Forms of  Theft."  They  concede that this  latter guideline

-3-
                                          3

defines "loss" as  including "the value of  property taken."
                                                                  _____

             U.S.S.G.    2B1.1, comment.  (n.2) (emphasis  added).   And,

             they concede that they took the Sentra.  But, in their view,
                                    ____

             the court must read the  word "taken" as embodying a special

             meaning,  derived   from  the   common  law   definition  of

             "larceny,"  namely,  "taken   with  intent  permanently   to

             deprive."  And, they say they did not intend to  deprive its

             owner of his Sentra permanently.  (After all, they parked it
                                 ___________

             before  they  got into  the  yellow Volkswagen.)    For this

             reason, they conclude, the "loss" was $6,160, not $10,160.

                       We  disagree with appellants.   For one  thing, on

             their own reasoning,  the facts offer sufficient  support of

             the district court's apparently implicit conclusion that the

             Sentra's  taking  met  most  criminal  law   definitions  of

             "larceny."  Although there is some dispute among authorities

             whether common law larceny requires an intent permanently to

             deprive an owner of his property,  see S. Rep. No. 307, 97th
                                                ___

             Cong., 1st Sess.  at 714 (1981),  it has long been  the case

             that  "if one takes  another's property intending  to use it

             recklessly and  then abandon it,  the obstacles to  its safe

             return are such that the taker possesses the required intent

             to  steal."   2  Wayne R.  LaFave  & Austin  W.  Scott, Jr.,

             Substantive Criminal Law   8.5, at 360-61 (1986).
             ________________________

-4-
                                          4

Some   states  say   that   a  defendant   who  is

             indifferent or reckless in respect to an owner's recovery of

             property is "willing"  to have the  owner lose his  property

             permanently,  and,  for  that  reason,  "the  wrongdoer  may

             appropriately  be held to entertain specific intent that the

             deprivation to the  owner be permanent."   State v.  Gordon,
                                                        _____     ______

             321 A.2d 352,  358 (Me. 1974);  see also State v.  Webb, 308
                                             ________ _____     ____

             S.E.2d 252,  256-57 (N.C. 1983)  (defendant's actions  would

             leave owner's recovery  "to mere chance and  thus constitute

             such  'reckless exposure to loss' that it is consistent only

             with  an intent  permanently  to deprive  the  owner of  his

             property" (quoting State v. Smith, 150 S.E.2d 194, 200 (N.C.
                                _____    _____

             1966)).

                       The criminal codes in other states  define larceny

             (or  theft)  to include  an  "intent to  deprive,"  and then

             define "deprive" as  including disposition of property  in a

             way that makes  it unlikely that the owner  will recover it.

             See, e.g., Conn. Gen. Stat.   53a-118(a)(3); Mont. Code Ann.
             ___  ____

                45-2-101(19)(d); N.Y. Penal  Law   155.00[3];  Tex. Penal

             Code  Ann.     31.01(3)(C);  see also  Model  Penal  Code   
                                          ________  __________________

             223.0(1).

                       Thus, courts often  find the requisite "larcenous"

             intent where the evidence shows no more than the abandonment

-5-
                                          5

of  property  under  circumstances  that  make  the  owner's

             recovery unlikely.  See, e.g., State v. Piscattano, 352 A.2d
                                 ___  ____  _____    __________

             783,  785 (Conn. Super.  Ct. 1976) (factfinder  may conclude

             recovery not  likely when  car left on  street with  keys in

             car); Brown  v. State,  804 S.W.2d 566,  570 (Tex.  Ct. App.
                   _____     _____

             1991) (jury may  find "intent" permanently to  deprive where

             defendant  parked and abandoned  vehicle in vacant  lot with

             windows down); see also State v. Ward, 10 P. 133 (Nev. 1886)
                            ________ _____    ____

             (factfinder may find larceny when defendant abandoned horses

             12 miles from home, though they walked back to their barn).

                       The robbers here, at the  time they first took the

             Nissan,  subjected it to  significant, known risks  that the

             owner would not recover it.  As the sentencing court pointed

             out,  the robbers  might have  "had an  accident" in  a high

             speed chase, "crashed the car,"  or the car might have "been

             riddled  by bullets" shot  by pursuing police.   The robbers

             abandoned  the car,  on the  street, some distance  from the

             bank.    To  take a  car  unlawfully,  knowing (and  thereby

             intending)  that it  be subject  to  these risks  of further

             destruction and  theft would seem  to amount to  acting with

             sufficient conscious  disregard in  respect to  the risk  of

             eventual  non-recovery that  a  trier  of  fact  might  find

-6-
                                          6

traditional (larcenous)  theft.  See,  e.g., Piscattano, 352
                                              ___   ____  __________

             A.2d at 785.

                       Regardless,  the  Guidelines  do   not  limit  the

             Commentary's  word  "taken"  to  circumstances  involving  a

             "permanent" deprivation of property.  The Commentary relates
              _________

             to an entire  guideline, the title of which  makes clear its

             application, not only to larceny, but also to "embezzlement"

             and  to  "other  forms of  theft."    Embezzlement  need not

             involve an intent to deprive permanently.  See, e.g., United
                                          ___________   ___  ____  ______

             States  v.  Anderson, 850  F.2d  563,  565  (9th Cir.  1988)
             ______      ________

             (intent   to  deprive  permanently  is  not  an  element  of

             embezzlement); United States v.  Shackleford, 777 F.2d 1141,
                            _____________     ___________

             1143 (6th  Cir. 1985)  (same), cert.  denied, 476  U.S. 1119
                                            _____________

             (1986); United  States v. Waronek,  582 F.2d 1158,  1161 n.4
                     ______________    _______

             (7th  Cir.  1978)   (same).    Nor  is  there  a  "permanent
                                                                _________

             deprivation"  requirement found in  respect to such   "other

             forms  of theft,"  as "joyriding,"  which the law  of Puerto

             Rico, like that  of several states, criminalizes  along with

             larceny  and without distinction.   See P.R.  Laws Ann. tit.
                                                 ___

             22,    4272 (theft statute similarly prohibits permanent and

             temporary  deprivations); Ga. Code  Ann.   16-8-1(1) (same);

             S.D. Codified Laws Ann.   22-1-2(12) (same); Wash. Rev. Code

               9A.56.020(1) (same); cf. Brown v. Ohio, 432 U.S. 161, 163-
                                    ___ _____    ____

-7-
                                          7

64 (1977) (discussing state law that regarded joyriding as a

             lesser  included offense of  larceny); State v.  Reeves, 342
                                                    _____     ______

             So. 2d 605, 608 (La. 1977) (same); Commonwealth v. Giannino,
                                                ____________    ________

             358 N.E.2d 1008, 1010 (Mass.  1977) (same); Model Penal Code
                                                         ________________

             art.  223,    223.9 (discussing  unauthorized  use of  motor

             vehicles  in section on  "Theft and Related  Offenses"); see
                                                                      ___

             also United  States v.  Deggs, 632 F.2d  829, 831  (9th Cir.
             ____ ______________     _____

             1980) (discussing 18 U.S.C.   1707, referred to by the theft

             guideline,  as a "joyriding" statute that requires no intent

             to  deprive permanently); United  States v. Henry,  447 F.2d
                                       ______________    _____

             283, 284-85 (3d Cir.  1971) (discussing 18 U.S.C.   661 as a

             theft   statute  that   requires   no   intent  to   deprive

             permanently); S. Rep. No. 307,  97th Cong., 1st Sess. at 714

             (1981).

                       We   recognize   that  the   Guidelines'   similar

             treatment of permanent  and temporary takings means  that an

             offender's  punishment  will  reflect the  full  value  of a

             "taken" car returned  to its owner undamaged.   But, we have

             no doubt  that  the Guidelines  intend  this result.    They

             specifically provide that "loss is  the value of the vehicle

             even if  the vehicle is recovered immediately."   The reason

             is that the  Guidelines here are concerned  with punishment,

             not  restitution; and, they  consequently focus on  the fact

-8-
                                          8

that the offender's  behavior created a significant  risk of
                                                                  ____

             loss  -- a  risk that  existed whether  or not  the property

             owner eventually suffered harm.  See, e.g., United States v.
                                              ___  ____  _____________

             Brach, 942  F.2d 141, 143  (2d Cir. 1991); United  States v.
             _____                                      ______________

             Cockerham, 919 F.2d 286, 289 (5th Cir. 1990);  United States
             _________                                      _____________

             v. Parker,  903 F.2d  91, 105 (2d  Cir.), cert.  denied, 498
                ______                                 _____________

             U.S.  872  (1990).    We  cannot  say   the  Guidelines  are

             unreasonable in keying  punishment to risk of  serious loss.

             And, in this  case, both  temporary loss  and a  significant

             risk of serious (permanent) loss are present.

                       For these  reasons, the  judgment of  the district

             court is

                       Affirmed.
                       ________

-9-
                                          9