ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA. (D.C. Criminal No. 92-00301-01).
Before: Becker and Nygaard, Circuit Judges, and Yohn, District Judge*fn*
Defendant-appellant Robert L. King pleaded guilty to one count of receiving or possessing stolen United States savings bonds, a violation of 18 U.S.C. § 641. At sentencing, King received a two-point offense level enhancement based upon the district court's determination that he was "an organizer, leader, manager, or supervisor" in the criminal activity to which he pleaded guilty. U.S.S.G. § 3B1.1(c). His base offense level was also enhanced by four points pursuant to former sentencing guideline § 2B1.2 upon the district court's Conclusion that King was "in the business of receiving and selling stolen property." U.S.S.G. § 2B1.2(b)(4)(A).*fn1 On appeal, King challenges the district court's application of those guideline sections, contending that both of those Conclusions were erroneous. For the reasons discussed herein, we will affirm the former ruling but reverse the latter and remand for resentencing.
On or about August 14, 1991, approximately 220 $1,000 denomination United States Government savings bonds were taken from a home in Middletown, Pennsylvania during the course of a burglary. Most of these bonds ended up in King's possession by the end of the following year.*fn2 King's involvement with the stolen bonds was first discovered by the government on November 9, 1992 when FBI Special Agent Larry Van Loon received a tip from Don Chiarella, a confidential informant. Chiarella related that King told him that he (King) had the stolen bonds.*fn3 Chiarella said he informed King that he knew an individual in Philadelphia who would purchase the bonds for 20 cents on the dollar. That same day, Ben Renfro Stuart, King's co-defendant, delivered 20 $1000 denomination United States Government savings bonds to Chiarella at his place of business and advised him that the bonds had come from King. Chiarella then turned the bonds over to Van Loon, who determined that the bonds were among those stolen in the Middletown burglary.
On November 16, 1992 Van Loon and Chiarella -- with the help of Gregory Taylor, an undercover agent with the Dauphin County Drug Task Force who would play the role of Chiarella's "source" from Philadelphia -- set a trap for King. Chiarella and King agreed to meet on November 18, 1992 in the parking lot of a hotel. At this meeting King was to receive $4,000 for the 20 bonds that had already been delivered and was to transfer the remaining bonds in his possession to Chiarella, who would in turn provide them to Taylor.
On the 18th, Chiarella, King, and Stuart, all driving separate vehicles, arrived at the hotel parking lot. Stuart parked his car at a distance from the others. Taylor was introduced to King as Chiarella's "source" from Philadelphia -- the individual who had received the 20 bonds previously delivered by Stuart to Chiarella. Taylor paid King $4,000 cash for the 20 bonds previously delivered and negotiated with King for the purchase of the remaining bonds. After these negotiations concluded,*fn4 King signalled Stuart, Stuart exited his car, walked across the parking lot to King's car, handed King a package containing 109 bonds that were later determined to be among those stolen in the Middletown burglary, and began to return to his car. Stuart was arrested as he made his way to his car, and King was arrested as he attempted to leave the parking lot with 109 stolen bonds and the $4,000 that Taylor had paid him. A recording made of the conversation between King and Taylor revealed that King had informed Taylor that he had another 75 $1,000 bonds to sell.
King pleaded guilty on January 19, 1993.*fn5 On May 21, 1993, the day of his sentencing hearing, King surrendered 76 bonds determined to be among those taken in the Middletown burglary to the FBI. At King's sentencing hearing, the district court set his base offense level at 14. It then adjusted the base offense level upward by two levels pursuant to § 3B1.1(c) based upon the Conclusion that King was an "organizer, leader, manager, or supervisor" of the scheme to sell the stolen bonds. It also adjusted the base level upward by four levels under § 2B1.2(b)(4)(A) based upon a Conclusion that King was "a person in the business of receiving and selling stolen property." King now appeals, challenging both enhancements.
We have jurisdiction over King's appeal from the district court's judgment of sentence pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Our standard of review of a district court's decision to adjust a defendant's base offense level under the guidelines "depends on the mixture of fact and law necessary to that court's determination." United States v. Bierley, 922 F.2d 1061, 1064 (3d Cir. 1990) (citation omitted). "Where the decision is grounded on an essentially factual basis, we defer to the district court's findings and reverse only for clear error [but] if the alleged error is legal, the issue should be reviewed de novo." Id.
A. The § 3B1.1(c) Two-Point Enhancement
Section 3B1.1(c) of the sentencing guidelines provides for a two-point enhancement of a defendant's base offense level if he "was an organizer, leader, manager, or supervisor in any criminal activity other than [that which involves five or more participants or was otherwise extensive]." U.S.S.G. § 3B1.1(c). King contends that the district court erred when it increased his offense level under § 3B1.1(c) because not only did Chiarella mastermind the scheme to sell the bonds but also because Chiarella, as a government agent, was not a participant in the criminal offense over whom King could have exercised any control. See U.S.S.G. § 3B1.1, comment. (n.1) ("A person who is not criminally responsible for the commission of the offense (e.g. , an undercover law enforcement officer) is not a ...