United States v. Ludlow

27 F. App'x 287
Court of Appeals for the Sixth Circuit·Decided August 9, 2001·No. No. 00-5273·Published·Cited by 1 cases

Opinion

PER CURIAM.

William Ludlow pled guilty to a violation of 18 U.S.C. §§ 7(3), 13, for entering a building and committing a theft on land acquired for the use of the United States. Ludlow was sentenced to 41 months in prison. This sentence was determined in part through the application of a two-level sentencing enhancement for more than minimal planning. USSG § 2B2.1(b)(l). Ludlow appeals the use of this enhancement. We affirm Ludlow’s sentence.

I

On May 27, 1997, Glen Lindsay reported to the United States Naval Investigative Service that his home on the Millington Naval Air Station (“the NAS”) had been burglarized. Investigation disclosed that the thieves had stolen a 27-inch color television, a stereo, and some other miscellaneous items. The home was entered through the dining room window, and numerous fingerprints were left behind. [289] That day, three witnesses (other military personnel) observed a white male, later identified as Kenneth Ryals, and a black male, later identified as the defendant, taking the relevant items from Lindsay’s residence to a pick-up truck. They attempted to prevent the thieves from leaving, but the truck took evasive action and escaped from the NAS. The witnesses did, however, record the Tennessee license plate of the suspicious vehicle. Armed with this information, the Millington Police Department soon apprehended Ryals with the truck, and he was turned over to Navy investigators.

Under questioning at the NAS, Ryals admitted his part in the burglary and identified Ludlow as the other participant. Ryals said that he had obtained use of the truck from his uncle by telling him that Ryals needed it to “look for a job” in Memphis. Ryals told investigators that he had at first thought Ludlow had permission to enter Lindsay’s residence and remove property. Ryals claimed that he only realized he was participating in a theft when the witnesses attempted to stop the pair from leaving, and Ludlow told him not to stop. The two men later split the profits from their venture, after Ludlow had pawned the television and the stereo at two different pawn shops.

Ludlow was indicted in November 1997 and released on bond in May 1998. When the defendant failed to appear for his court date in July 1998, an arrest warrant was issued. After spending nearly a year on the lam, Mr. Ludlow was captured in Baltimore in June 1999. Following his plea of guilty,1 the district court conducted a sentencing hearing in February 2000. During this hearing, the district court concluded that a more than minimal planning enhancement was warranted.2 The court acknowledged, along with both parties, that Ludlow had committed a “simple burglary.” However, the court pointed out that “residential burglary by its nature is not just simply an impulsive act.” The court described the steps necessary to carry out a residential burglary and also discussed the fact that Ludlow had “continued” his criminal activity by pawning the stolen goods.

II

Standard of Review

In applying the Sentencing Guidelines, the district court makes factual findings under a preponderance of the evidence standard. United States v. Rodriguez, 896 F.2d 1031 (6th Cir.1990). “We review the district court’s ‘more than minimal planning’ finding for clear error.” United States v. Moore, 225 F.3d 637, 642 (6th Cir.2000). A factual finding is clearly eiToneous when, though there is evidence to support the finding, the reviewing court is “left with the definite and firm conviction that a mistake has been committed.” United States v. Ables, 167 F.3d 1021, 1035 (6th Cir.1999) (citations omitted). The 1998 version of the Sentencing Guidelines was used to sentence the defendant.

The Use of USSG § 2B2.1(b)(l)

As explained in the Guidelines, a “more than minimal planning” enhancement is warranted when there is “more planning than is typical for commission of the of[290] fense in a simple form.” USSG § 1B1.1, comment. (n.l(f)). This does not require “planning in its most deliberate form; rather, it is sufficient if the evidence suggests merely that the crime was not committed in its simplest form.” Moore, 225 F.3d at 642; see also United States v. Ellerbee, 73 F.3d 105, 108 (6th Cir.1996) (stating that the crime “just must be something more than the crime in its simplest form”). Although we have not specifically mandated how to determine the “simplest form,” it is a reasonable inference that this is defined by the minimal set of acts and preparations that would still allow the commission of the crime. See United States v. Bean, 18 F.3d 1367, 1370 (7th Cir.1994); see also United States v. Smith, No. 99-1763, 2000 WL 1769634, at *1 (6th Cir. Nov. 16, 2000) (unpublished) (“the key inquiry ... lies in determining what conduct was minimally necessary in order for [a defendant] to commit the crime”).

Ludlow was convicted of “burglary” under the Assimilative Crimes Act, 18 U.S.C. § 13, because burglary is a crime in Tennessee. The Tennessee burglary statute referenced in the indictment is Tenn, Code Ann. § 39-14-402(a)(3). Under this statute, the elements of the offense are (1) entry into a building, (2) without the effective consent of the property owner, and (3) commission or attempted commission of a felony, theft, or assault. Ludlow committed a “theft.” A person commits theft of property if, with intent to deprive the owner of property, the person knowingly obtains or exercises control over the property without the owner’s effective consent. Tenn. Code Ann. § 39-14-103.

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United States v. Ludlow, 27 F. App'x 287 (6th Cir. 2001).

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