United States v. Galloway

29 F. App'x 189
Court of Appeals for the Sixth Circuit·Decided December 26, 2001·No. No. 00-5565·Published

Opinion

LAWSON, District Judge.

The defendant, Edward Lee Galloway, appeals a sentence of 57 months in custody followed by three years of supervised release imposed upon his guilty-plea-based conviction of one count of possession of stolen goods from an interstate shipment, in violation of 18 U.S.C. § 659. Galloway claims that the lower court erred when calculating his sentencing guideline range by enhancing his offense level because the crime involved “more than minimal planning.” See U.S.S.G. § 2B1.1(b)(4). We affirm.

I.

The parties have each quoted the description of the offense from a portion of the Presentence Investigation Report, which is set forth below:

On or about September 29, 1999, a trailer load with assorted Hewlett Packard computer products was stolen from the Fed Ex warehouse located at 3970 Delp, Memphis, TN. The trailer destination was the Fed Ex Hub where the computer equipment was to be shipped to several customers in several different states. The theft was witnessed by a Fed Ex employee, Wanda Smith. According to Smith, at approximately 11:00 p.m. a white tractor trailer pulled onto the lot at which time a male subject hooked the trailer up to the truck and drove away. When a Fed Ex driver arrived at the lot several hours later to pick up the trailer, the theft was discovered.
On or about October 4, 1999, a confidential informant (Cl) contacted investigating officers and advised that Eddie Galloway wanted to sell the Cl a trailer load of Hewlett Packard computers for $20,000. Galloway told the Cl that the computers were on a TIPS rental trailer and that he needed to move the computers and get rid of the trailer which was parked at the Memphis Compress warehouse in the area of Florida and Dempster.
After surveillance was set up at the warehouse, the Cl contacted Galloway and agreed to take the load if Galloway would bring it to him. Approximately one and a half horns later, a red tractor occupied by Ray Alexander and Eddie Galloway arrived at the location, hooked up the trailer, and left the scene. Alexander was driving. The truck was stopped by investigating officers at Brooks and Third where the trailer load of stolen equipment was recovered.
In a statement made on October 4, 1999, Eddie Galloway reported that on September 28, 1999, he met a Fed Ex [191] driver who told him that he knew where they could get a load of computers. The driver knew a girl who was supervisor at the Fed Ex warehouse on Delp. The driver paged Galloway on the following day and advised that the girl at Fed Ex had loaded the trailer. Galloway was given the location and number of the trailer. Galloway reported that although he had been told that is was an inside job, he was leery of moving the trailer. Galloway denied that the driver wanted Galloway to sell the computers and reported that the driver wanted the trailer dropped off. Galloway agreed to move the trailer. He ran into Alexander at Round Town Tire and asked him to move the trailer. Galloway reported that Alexander asked if the load was stolen at which time Galloway told him that he did not know what was on the truck. Galloway stated that he did not tell Alexander the load was stolen because he was afraid that he might not move it if he knew what was on the trailer. Galloway denied knowing the Fed Ex driver’s name.
In a statement made on October 5, 1999, Ray Alexander reported that he was approached by Galloway earlier that day and asked to move a trailer. Galloway’s truck was reportedly in the shop. Alexander denied any knowledge of the trailer having been stolen.

(Presentence Report at 3-4, J.A. at 48-49).

At the sentencing hearing, the lower court overruled the defendant’s objection to the two-level upward adjustment for more than minimal planning based on her view of the defendant’s overall conduct. She relied on the facts that the defendant made advance arrangements with a Fed Ex employee to learn the time and location of the delivery of the trailer loaded with computers, that he arranged to receive a call on his pager when the shipment was in place and then used his tractor to steal the trailer himself, that he moved the trailer to a remote location, that he recruited another person (Ray Alexander) to move the trailer a second time when he was ready to dispose of the stolen goods, and that the events occurred over a period of several days.

The court found that the defendant’s conduct in committing the crime involved more than minimal planning and, pursuant to U.S.S.G. § 2Bl.l(b)(4), justified a two-level upward adjustment to the offense level. The resulting total offense level of thirteen, when entered in the sentencing grid with the defendant’s criminal history category of VI, yielded a custody range of 33 to 41 months, from which the court departed upward in imposing the 57-month sentence.1

The defendant filed a timely notice of appeal.

II.

A.

The lower court’s factual findings when applying the Sentencing Guidelines are reviewed under the “clearly erroneous” standard. United States v. Ellerbee, 73 F.3d 105, 107 (6th Cir.1996). A finding of fact will be considered clearly erroneous only when the reviewing court, after consideration of the entire record, comes to a definite and firm conviction that a mistake [192] has been made. United States v. Latouf 132 F.3d 320, 331 (6th Cir.1997).

We have held that the district court’s legal conclusions are reviewed de novo. Id. However, the relevant sentencing statute, 18 U.S.C. § 3742(e), requires the reviewing court to “give due deference to the district court’s application of the guidelines to the facts.” Just how much “deference that is due depends on the nature of the question presented.” Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

B.

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United States v. Galloway, 29 F. App'x 189 (6th Cir. 2001).

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