Сборник текстов для перевода. Борисова Л.А. - 54 стр.

       The government argued for a wholly consecutive sentence pursuant to
U.S.S.G. § 5G1.3(c). The prosecution acknowledged that two two-level en-
hancements included in the Report's total offense level of 32 fully took into ac-
count conduct for which Austin was sentenced in Massachusetts. Thus, if those
two enhancements were eliminated, the government contended, Austin's sen-
tence could be wholly consecutive.
       The district court then applied a total offense level of 28, rather than the
Report's recommended 32, with a criminal history category of VI, which re-
sulted in a sentencing range of 140 to 175 months. Applying U.S.S.G.               §
5G1.3(c), the district court sentenced Austin to 175 months on Count One, 115
of which were to run concurrently to the Massachusetts sentence and 60 of
which were to run consecutively to that sentence. In addition, the court sen-
tenced him to a 60 month term for Count Two, which was consecutive to all
other sentences.
       Appellate review of a district court's interpretation and application of the
Sentencing Guidelines (Guidelines) is de novo. United States v. Collazo-Aponte,
216 F.3d 163, 200 (1st. Cir. 2000). We review the district court's factual deter-
minations for clear error, giving "due deference to the district court's application
of the guidelines to the facts." Id, quoting United States v. Cali, 87 F.3d 571,
575 (1st Cir. 1996).
       Section 2B3.1 determines a sentence 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)(7). The robbery guideline Commentary informs the court that
"[v]aluation of loss is discussed in the Commentary to § 2B1.1 (Larceny, Em-
bezzlement, and Other Forms of Theft)." U.S.S.G. § 2B3.1 application note 3.
The latter guideline defines "loss" as including the "value of the property taken."
U.S.S.G. § 2B1.1 application note 2. The district court proceeded to add that one
level after aggregating the Jetta's $2,000 value and the $9,028 taken in the rob-
bery, yielding a total "loss" of over $10,000.
       In support of its contention that the district court was correct to count the
value of the Jetta as a robbery-related loss pursuant to U.S.S.G. § 2B3.1(b)(7),
the government exclusively relies on our decision in United States v. Cruz-
Santiago, 12 F.3d 1 (1st Cir. 1993). In Cruz-Santiago, we held that the district
court correctly "counted, as a robbery-related 'loss' for sentencing purposes, the
value of a car . . ." pursuant to U.S.S.G. 2B3.1(b)(6)(B), the then existing rob-
bery provision. 12 F.3d at 1. Cruz-Santiago, however, is distinguishable. The de-
fendants in Cruz-Santiago "entered a bank, took $6,160, shot the assistant man-
ager, ran outside the bank, saw a [vehicle] . . . passing by, forced its innocent
driver out of the car, and drove off to a rendezvous point." Id. They were charged
with and convicted of bank robbery in the District of Puerto Rico. Id.
       The case before us differs in important respects. First, Austin stole the ve-
hicle at some time earlier than when he committed the bank robbery; thus, the
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