1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-21-1998

United States v. Cottman

Precedential or Non-Precedential:

Docket 96-5492

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Recommended Citation

"United States v. Cottman" (1998). 1998 Decisions. Paper 84.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/84
Filed April 21, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-5492 

UNITED STATES OF AMERICA 

v. 

STANLEY COTTMAN, 

 Appellant. 

On Appeal from the United States District Court 

for the District of New Jersey 

D.C. Criminal Action No. 95-cr-00661 

Argued July 23, 1997 

Before: SLOVITER, Chief Judge and ROTH, Circuit Judges 

LUDWIG,1 District Judge 

(Amended Opinion Filed 4/21/98) 

 Faith S. Hochberg 

 United States Attorney 

 Allan Tananbaum (Argued) 

 Assistant U.S. Attorney 

 Kevin McNulty 

 Assistant U.S. Attorney 

 Office of United States Attorney 

 970 Broad Street, Room 502 

 Newark, NJ 07102 

 Attorneys for Appellee 

_________________________________________________________________ 

1. Honorable Edmund V. Ludwig, United States District Court Judge for 

the Eastern District of Pennsylvania, sitting by designation. 
 Karim Arzadi (Argued) 

 Law Office of Karim Arzadi 

 163 Market Street 

 Perth Amboy, NJ 08861 

 Attorney for Appellant 

OPINION OF THE COURT 

ROTH, Circuit Judge: 

Stanley Cottman pled guilty to one count of conspiracy to 

possess, sell, and dispose of stolen property in violation of 

18 U.S.C. S 371. He was sentenced to 10 months in prison, 

a three year term of supervised release, and restitution in 

the amount of $32,420, payable to the FBI. He has 

appealed two aspects of the sentence imposed by the

district court. First, he claims that the district court 

incorrectly applied a four point upward adjustment under 

Sentencing Guideline S 2B1.1(b)(4)(B) on the basis that he 

was "in the business of" receiving and selling stolen cable 

equipment. Second, he contends that the district court had 

no authority to order him to pay restitution to the FBI for 

funds it spent as part of an undercover sting operation to 

acquire the stolen cable equipment from him. Wefind no 

error in the sentence enhancement under S 2B1.1(b)(4)(B) 

and we will affirm that portion of the sentence. However, 

because we conclude that the FBI was not a victim of 

Cottman's offense, we will vacate that portion of the 

judgment of sentence, imposing restitution, and we will 

remand this case for resentencing. 

I. Factual Background and Procedural History 

Pursuant to an ongoing investigation of cable television 

piracy, the FBI established an undercover warehouse

operation in Kenilworth, New Jersey. Agents equipped the 

premises with video and audio recording devices. An

undercover FBI agent (the UCA) was the principal operator 

of the warehouse. Transcripts and videotapes of 

 2 
conversations, as well as other evidence developed as part 

of the sting, revealed the following events:2 

On February 7, 1995, the UCA in a consensually 

monitored telephone conversation, spoke to a person

known to the UCA as Frank Russo. Russo advised the UCA 

that an individual known as George "the Animal" Kanter 

expected to obtain approximately 80 General Instrument 

Corporation (GI) cable boxes within a week. Russo inquired 

whether the UCA would act as a "middle man" and receive 

the boxes on his behalf. The terms of the transaction called 

for a total cost of $150 per unit, which broke down into 

$130 for the merchandise, $10 for Kanter's commission, 

and $10 for the UCA. Russo further explained that, as this 

was a "green deal," cash up front would be required. Russo 

asked the UCA to front the cash for him because he would 

be detained in Florida and unable to bring the money up 

personally. When the UCA agreed to broker the deal, Russo 

stated that he would have Kanter contact the UCA 

immediately. 

_________________________________________________________________ 

2. The Pre-Sentence Report (PSI) also discussed statements provided by 

an anonymous source who advised the FBI in December 1994 about 

many of Cottman's alleged activities. The Source made an 

uncorroborated statement that sometime in 1994 or 1995 Cottman had 

been involved in an armed robbery of a cable store in Philadelphia, 

Pennsylvania, with another individual known only to the Source as "Al." 

Al received approximately 70% of the proceeds from selling the units 

obtained in the heist and $5,000 for his role in the robbery, while 

Cottman received $14,000. See PSI at P 12. 

The Source also disclosed details about Cottman's trade in cable 

boxes. According to the Source, Cottman had suppliers from Baltimore 

to New York who fed him cable boxes, chips, and cellular phones. The 

Source indicated that Cottman sold an average of 300 to 400 stolen 

General Instrument cable boxes per month. The Source also stated that 

Cottman had branched out into reselling stolen vehicles. PSI P 13. 

Finally, the source identified a number of Cottman's alleged sources. 

These included individuals identified as Walay, Leo "the Chinaman" from 

New York, Roger, Frank, and Kevin. The Source stated that Kevin was a 

resident of Philadelphia and heavily involved in stolen credit cards and 

cable boxes. The source credited Kevin with providing Cottman with 

approximately 100 cable boxes per month. PSI P 14. 

 3 
Within minutes the UCA heard from Kanter. Kanter 

stated that he had 65 units and that "his guy," was going 

to get more. Kanter said he would be in touch again when 

they were ready to do the deal. 

The following day, February 8, 1995, Kanter again 

contacted the UCA. Kanter stated that "his guy" should be 

back that day, that he would have the total number of 

units by that night, and that a meeting would be arranged 

shortly. 

On February 10, Kanter and "his guy" Stanley Cottman 

delivered about 70 boxes containing 65 GI baseband units, 

many of which appeared to be in brand new unopened 

shipping cartons. The UCA paid $8,650 in cash to Cottman 

and $650 to Kanter. During the meeting, Cottman removed 

all of the serial numbers from the cartons and instructed 

the UCA to remove all the stickers from the original boxes. 

Cottman also took the opportunity to elaborate on his 

involvement in the illegal cable box trade. Cottman boasted 

that "[A]t one point I get 3 hundred . . . . See, I deal with 

the same ole people over and over and over, the same ole 

people, no problems. . . . It's slow now since the people we 

deal with is so good, they get stuff even if it's slow . . . ." 

Later investigation revealed that at least 52 of the 65 GI 

units were brand new. Approximately 9 of the units had 

been shipped in late December 1994 to TCI Cablevision in 

Baltimore, Maryland, while the remaining units had been 

shipped to Comcast Corporation in Philadelphia just eleven 

days before the sale. 

Cottman, without Kanter, returned to the UCA's 

warehouse on February 19, 1995, to consummate another 

deal. Cottman explained that he had left Kanter out of this 

transaction because he was unsure of his ability to obtain 

the boxes. Cottman produced 75 GI baseband cable boxes 

for which the UCA paid him $10,500. 

The UCA engaged Cottman in further discussion about

his involvement in illegal cable box trafficking. At one point 

Cottman said to Kanter: "It started out with one and two to 

where me and him was moving thousands . . . a week. So 

I had met a lucky connection up here." Cottman also

repeated his assertion that, although he usually got 100 or 

 4 
200 units per week, at one time he was pulling in about 

300 cable boxes a week from his sources. With further 

inquiries from the UCA, Cottman explained that the people 

he worked with at the cable companies would pilfer the 

cable boxes by simply erasing them from the inventory lists 

on the companies' computers. 

Later investigation again revealed that 64 of the 70 

baseband units Cottman sold to the UCA were new. All 64 

had been shipped to TCI in Baltimore on February 7 and 8, 

1995, and received on February 13 and 14. Of these, 62 

had been in the possession of Excalibur Cable 

Communications, Ltd., of Baltimore and had allegedly been 

stolen in a strong arm robbery of one of its employees, 

Steven Holder, on the evening of February 17, 1995, just 

two days before Cottman sold them to the UCA. 

Cottman later denied any involvement with the robbery 

or knowledge of how he came to acquire the Excalibur 

Cable boxes, insisting that all the cable boxes had been 

provided by an Englishman named "Roger." However, 

telephone records indicated that calls were made from 

Cottman's residence to Holder on February 9, 19, and 26, 

1995. Furthermore, Cottman's "800" number telephone

records showed that he was called by Holder's supervisor, 

Dwight Chew, on January 15, 1995. 

Finally, on February 21, 1995, Cottman and Kanter 

together came to the warehouse to deliver about 86 GI 

baseband cable boxes in exchange for $13,280 paid to 

Cottman and $1650 paid to Kanter. Cottman again 

physically removed the serial numbers from the outside 

packing cartons and instructed the UCA that the serial 

numbers needed to be stripped from the individual boxes. 

Later investigation revealed that 40 of these units had been 

shipped to Comcast of Philadelphia and TCI of Baltimore in 

February 1995. 

In these three transactions, Cottman sold a total of 231 

cable boxes for $34,730.3 

_________________________________________________________________ 

3. The restitution of $32,420, which the the district court ordered 

Cottman to pay, has had the amount paid to Kanter, $2,310, deducted 

from the total payments of $34,730. 

 5 
Cottman was indicted on one count of conspiring to 

possess and sell stolen cable equipment, valued in excess 

of $5,000, that had crossed state lines in violation of 18 

U.S.C. S 371, and three substantive counts charging him 

with the receipt and sale of stolen cable equipment, valued 

in excess of $5,000, that had crossed state lines in violation 

of 18 U.S.C. SS 2 and 2315. Federal authorities arrested 

Cottman on March 7, 1995, at his residence in Perth

Amboy, New Jersey. 

Cottman made a voluntary statement to the FBI following 

his arrest in which he stated that he had been employed 

with RTK Cable Company and had run a sideline business 

called Incognito Sound Labs, Inc., which he operated out of 

a public storage facility. According to Cottman, the 

principal focus of his business was the installation of car 

radios, for which he would charge $500. Cottman also 

admitted that he had in the past worked for various cable 

companies in order to make contacts who would later

provide him with cable boxes. 

After negotiations, a written plea agreement was reached. 

Pursuant to the agreement, Cottman entered a guilty plea 

to the conspiracy count on March 7, 1996. The district 

court then dismissed the three substantive counts of the 

indictment. 

On July 22, 1996, Cottman was sentenced by the district 

court to a 10-month prison term to be followed by 3 years 

of supervised release. As a special condition of supervised 

release, the court ordered Cottman to pay as restitution the 

$32,420 expended by the FBI to acquire the stolen cable 

boxes from him. The district court denied Cottman's

request for bail pending appeal.4 

Cottman immediately filed his notice of appeal. The

notice was dated July 22, 1996, but was not filed by the 

clerk until July 25, 1996. One day later the district court 

entered its final judgment and order of commitment.5 

_________________________________________________________________ 

4. This Court denied a similar motion by Cottman on August 29, 1996. 

5. While at one time this sequence of events might have been fatal to 

Cottman's appeal, see United States v. Matthews, 462 F.2d 182, 183-84 

(3d Cir. 1972), the rule is now firmly established in this Circuit that a 

 6 
II. Sentencing Issues 

A. Mootness 

As a preliminary matter, we must consider the fact that 

Cottman has completed his ten month term of 

incarceration, leaving only his three years of supervised 

release to be served.6 We must determine whether the 

completion of his term of imprisonment has mooted 

Cottman's challenge to the district court's application of the 

"in the business" enhancement. 

Although the Seventh and Eleventh Circuits have 

determined that challenges of the length of defendants' 

sentences are no longer viable after the defendant has been 

released from custody, see, e.g., United States v. Ross, 77 

F.3d 1525, 1549 n.6 (7th Cir. 1996); United States v. 

Farmer, 923 F.2d 1557, 1568 (11th Cir. 1991), we do not 

agree. We conclude that a finding of mootness is forestalled 

here because Cottman may still suffer " `collateral legal 

consequences' from a sentence already served." 

Pennsylvania v. Mimms, 434 U.S. 106, 108 n.3 (1977) (per 

curiam). 

Two considerations, both of which are products of 

the Federal Sentencing Guidelines, lead us to this 

determination. First, the S 2B1.1(b)(4)(B) "in the business" 

_________________________________________________________________ 

premature notice of appeal in a criminal case can ripen into valid notice 

of appeal when the district court enters the judgment of sentence. See 

United States v. Hashagen, 816 F.2d 899, 900-06 (3d Cir. 1987) (in 

banc). The revised rule comes with the proviso that a premature notice 

is prejudicial and will not preserve the appeal if it "is filed so early 

that 

it does not properly apprise the opposing party of its intention to appeal 

the final judgment." Id. at 903. 

We have no need to invoke the proviso here. Cottman's notice, while 

premature, was filed just one day before the entry of the judgment of 

sentence. The district court docket reveals no events intervening between 

Cottman's notice and the entry of final judgment. Indeed, this Court has 

considered this exact situation previously and found the notice of appeal 

adequate to confer appellate jurisdiction. See United States v. Console, 

13 F.3d 641, 649 n.3 (3d Cir. 1993). 

6. Cottman's attorney informed us of this fact at oral argument. 

 7 
sentencing enhancement increases Cottman's Criminal

History Category from I to II for any future convictions. See, 

e.g., United States v. Kassar, 47 F.3d 562, 565 (2d Cir. 

1995); United States v. Chaves-Palacios, 30 F.3d 1290, 

1292-93 (10th Cir. 1994); United States v. Dickey, 924 F.2d 

836, 838 (9th Cir. 1991). The district court's application of 

the enhancement increased Cottman's total offense level 

from ten to twelve, pushing him from Zone B to Zone C on 

the Sentencing Table which determines his guideline range. 

See U.S.S.G. S 5A (1995). Because his sentence placed him 

in Zone C, Cottman no longer qualified for a sentence of 

probation in lieu of imprisonment. See U.S.S.G. SS 5B1.1 & 

5C1.1 (1995). Cottman, as a result, acquired two, rather 

than one, criminal history points. The net outcome is that 

a sentence for any future conviction which may be imposed 

upon Cottman under the Guidelines will be significantly 

increased. 

Second, if we were to find an error in the application of 

the "in the business" enhancement, the appropriate 

sentencing range would be reduced from 10-16 months to 

6-12 months. See U.S.S.G. S 5A. This reduction would 

likely merit a credit against Cottman's period of supervised 

release for the excess period of imprisonment to which 

Cottman was subjected. See United States v. Fadayini, 28 

F.3d 1236, 1241 (D.C. Cir. 1994). 

For these reasons, we do not consider Cottman's appeal 

to be moot even though he has served the imprisonment 

portion of his sentence. 

B. Application of the "In the Business" Enhancement

The first of Cottman's challenges to his sentence is to the 

district court's application of the four level sentencing 

enhancement for persons in the business of receiving and 

selling stolen property. See U.S.S.G. S 2B1.1(b)(4).7 This 

_________________________________________________________________ 

7. Section 2B1.1(4) provides: 

 (A) If the offense involved more than minimal planning increase by 

 2 levels; or 

 (B) If the offense involved receiving stolen property, and the 

 defendant was a person in the business of receiving and selling 

 stolen property, increase by 4 levels. 

 8 
enhancement is seen as a more severe punishment for

"people who buy and sell stolen goods, thereby encouraging 

others to steal, as opposed to thieves who merely sell the 

goods which they have stolen." United States v. Sutton, 77 

F.3d 91, 93 (5th Cir. 1996). 

At sentencing, the district court in its bench ruling 

extensively discussed United States v. King, 21 F.3d 1302 

(3d Cir. 1994), the lone decision of this Circuit interpreting 

the "in the business" enhancement of U.S.S.G. S 2B1.1. In 

addition, the court thoroughly reviewed the evidence 

adduced by the parties. The district court found that 

"Cottman had a steady source of stolen cable boxes that 

was generated from more than one robbery or theft" and 

concluded that the operation in which Cottman participated 

was a sophisticated one given that "his source of cable 

boxes appear [sic] to have been persons employed by cable 

companies who obtained the boxes in part by deleting the 

boxes from the companies' inventories to conceal their 

theft." Based on these findings the court found that 

Cottman was "clearly an integral part of this operation" and 

deserved the sentencing enhancement even if he was not 

the "criminal mastermind" behind it. 

In King, we briefly reviewed the approaches taken by 

other circuits that have considered a defendant's eligibility 

_________________________________________________________________ 

U.S.S.G. S 2B1.1 (Nov. 1, 1995). 

This enhancement has a much traveled history in the Guidelines. It 

first appeared with the initial promulgation of the Guidelines in 1987 at 

S 2B1.2(b)(2)(A). As of January 1988, this language was relocated within 

the same section at S 2B1.2(b)(3)(A), where it remained until November 1, 

1990. See U.S.S.G. App. C., amend. 8. As of that date it was again 

moved within the same section to S 2B1.2(b)(4)(A). See U.S.S.G. App. C., 

amend. 312. Finally, as of November 1, 1993, U.S.S.G. S 2B1.2 was 

deleted and consolidated with U.S.S.G. S 2B1.1. From that point until 

the present this provision has remained in that location. See U.S.S.G. 

App. C., amend 481. 

As originally promulgated, the section spoke only of "selling stolen 

property." The Commission amended it in November 1989 to add the 

words "receiving of" immediately before this language. See U.S.S.G. App. 

C., amend. 102 (Nov. 1, 1989). 

 9 
for the four point "in the business" enhancement. King, 21 

F.3d at 1306. We turned to the First Circuit's decision in 

United States v. St. Cyr, 977 F.2d 698 (1st Cir. 1992), 

which set out the "totality of the circumstances" test. King, 

21 F.3d at 1306. The St. Cyr court's approach placed 

"particular emphasis on the regularity and sophistication of 

a defendant's operation." St. Cyr, 977 F.2d at 703. We 

explained that "regularity of conduct is one universal 

thread in virtually all legal definitions of business." King, 21 

F.3d at 1307 (quoting St. Cyr, 977 F.2d at 703-04). We 

further elaborated that where the government offers proof 

only of a defendant's irregular and occasional sales, it must 

also provide "evidence upon which to base a conclusion 

that . . . irregular and occasional sales underrepresented 

the scope of his criminality or the extent to which he 

encouraged or facilitated other crimes." Id. at 1308. 

Cottman, however, argues that the enhancement was 

improperly applied to him. Indeed, the Probation Office did 

not include the "in the business" enhancement in 

computing Cottman's Guidelines offense level.8 Cottman 

first maintains that he was nothing more than a "low level 

delivery boy." Cottman claims that he merely obtained the 

cable boxes for resale from an Englishman named "Roger" 

and that the sentencing enhancement is inapplicable

because Cottman was merely a middleman to Roger, the 

true fence. To support this contention, Cottman asks 

rhetorically why, if he was the "mastermind" of the scheme, 

did he only remove the serial numbers from the outside of 

the cartons, leaving the serial numbers actually attached to 

the cable boxes for later removal. 

Cottman's implicit assumption that the "in the business" 

enhancement requires proof that he was the leader, 

organizer, or driving force behind the operation is

_________________________________________________________________ 

8. The Pre-Sentence Investigative Report prepared by the Probation Office 

imposed only the two point sentencing enhancement for the commission 

of an offense involving more than minimal planning. See PSI P 34 (citing 

U.S.S.G. S 2B1.1(b)(4)(a)). The Probation Office, over the Government's 

objection, declined to apply the four point enhancement of U.S.S.G. 

S 2B1.1(b)(4)(B), citing a lack of evidence that Cottman had committed 

other acts of buying or selling stolen property. See Addendum to PSI, at 

18-19. 

 10 
misguided. Nothing in language, commentary, or 

amendment history of U.S.S.G. S 2B1.1(b)(4)(B) suggests 

that to earn the enhancement the defendant must be the 

criminal "mastermind" behind the scheme. Nor does 

Cottman produce any case law to this effect. Indeed, the 

Sentencing Guidelines already provide for a two point 

enhancement "[i]f the defendant was an organizer, leader, 

manager, or supervisor of any criminal activity." U.S.S.G. 

S 3B1.1(c) (Nov. 1, 1995). Thus, even if Cottman were 

merely a "delivery boy" for the "true fence," his involvement 

could be sufficient to warrant the enhancement. 

Second, Cottman asserts that the three transactions in 

which he participated do not establish a pattern of

trafficking in stolen goods with sufficient regularity to 

support the enhancement. According to Cottman, the 

record does not support the conclusion that he trafficked in 

stolen cable boxes on occasions other than those for which 

he was convicted. He dismisses his statement that he 

regularly received up to 300 cable boxes per week as mere 

puffery designed to impress his fellow conspirators. 

Cottman's position is, however, belied by the facts adduced 

at sentencing. Cottman's boasting about his history of 

trafficking in illegal cable boxes, captured as it was on 

video and audio tape, is a sufficient foundation from which 

the district court could have concluded that he had

previously engaged in fencing activities. See, e.g., United 

States v. Rosa, 17 F.3d 1531, 1551 (2d Cir. 1994), 

(approving of application of enhancement where inter alia, 

defendant "made clear that these were not hisfirst 

transactions"); United States v. Russell, 913 F.2d 1288, 

1294 (8th Cir. 1990) (same, where, inter alia, defendant 

made "statement to an informant that he could supply 

stolen checks, jewelry, and credit cards"). 

Implicit in this argument is Cottman's belief that the 

sentencing enhancement cannot stand without proof that 

he participated in transactions other than the three which 

underlie his conviction. However, even if we were to assume 

that the district court had before it proof only of the three 

transactions of the conspiracy conviction, we would still 

uphold the district court's application of the "in the 

business" enhancement. Contrary to Cottman's suggestion, 

 11 
it is not the law in this Circuit that the enhancement 

cannot lie absent proof that the defendant has previously 

engaged in "fencing" activities. 

Our decision in King is not to the contrary.9 There we 

merely distinguished a Fifth Circuit decision which made 

the broad statement that an "in the business enhancement" 

does not require a finding that a defendant has previously 

engaged in the fencing of stolen property. See King, 21 F.3d 

at 1306-07 (citing United States v. Esquivel, 919 F.2d 957, 

960 (5th Cir. 1990)). We did not, however, hold that a 

defendant must in all cases have been involved in previous 

illicit transactions to warrant the enhancement. 

Other Circuits have held that the enhancement remains 

appropriate without proof of past sales of stolen property. 

See, e.g., United States v. Sutton, 77 F.3d 91,93-94 (5th Cir. 

1996) (holding that "a criminal can be `in the business' of 

fencing even though this is his first time to fence); United 

_________________________________________________________________ 

9. We had no occasion in King to consider the merits of the "fence" test 

developed by the Seventh Circuit and since adopted by the First, Fifth, 

and Sixth Circuits. See United States v. Braslawsky, 913 F.2d 466, 468 

(7th Cir. 1990); United States v. McMinn, 103 F.3d 216, 219-21 (1st Cir. 

1997); United States v. Warshawsky, 20 F.3d 204, 214-15 (6th Cir. 

1994); United States v. Esquivel, 919 F.2d 957, 960 (5th Cir. 1990). This 

test limits application of S 2B1.1(b)(4)(B) to a "professional fence and 

not 

a person who sells property that he has already stolen." Braslawsky, 

917 F.2d at 468. Although some Circuits have described the "totality of 

the circumstances" approach, upon which this Court relies, as a 

"competing test," see, e.g., United States v. Peysano, 104 F.3d 191, 192 

(8th Cir. 1997), nothing we said in King forecloses us from requiring in 

the future that a defendant be a "fence" for the enhancement to apply. 

Indeed, the First Circuit, which formulated the"totality of the 

circumstances" test, has recently indicated that proof that a defendant 

was in the business of receiving and selling stolen property is a 

prerequisite to the four level increase. See McMinn, 103 F.3d at 222. 

Moreover, we have no need to revisit the question here. Cottman does 

not contend that he was the "thief," and there is ample evidence that the 

majority of cable boxes, sold by Cottman, were actually pilfered by 

others. Cf. McMinn, 103 F.3d at 222 ("Nothing prevents a professional 

thief from also conducting a fencing operation of sufficient size and 

continuity to qualify for the ITB enhancement; criminals, too, may have 

more than one line of business.") (dictum). 

 12 
States v. Salemi, 46 F.3d 207, 210-11 (2d Cir. 1995). But 

see United States v. Connor, 950 F.2d 1267, 1275 (7th Cir. 

1991) (suggesting that a defendant must have "engaged in 

sufficient illegal conduct which is similar to the instant 

offense"). 

The preponderance of the evidence here clearly 

establishes that Cottman filled a "fencing" role, and thereby 

created a market for those who would steal cable boxes by 

force or stealth. Indeed, Cottman even admitted that he 

took jobs in cable companies for the express purpose of 

encouraging people within those companies to steal cable 

boxes for him. PSI P 24. 

The Government also asserts that "lack of regularity can 

be made up for in a given case by a strong showing of 

sophistication." Although we do not address this point in 

King, the First Circuit's decision in St. Cyr, upon which 

King draws heavily, speaks to it: 

 We can easily imagine situations in which a fencing 

 business, although very much a business, has been 

 recently launched and therefore traces no historical 

 pattern. In order to distinguish a new-to-the-business 

 fence from an amateur, however, the government must 

 at least offer a meaningful proxy for regularity, say, by 

 showing that the operation crossed a threshold of 

 sophistication and commitment. 

St. Cyr, 977 F.2d at 704. This conclusion is consistent with 

King's holding that the government can sustain application 

of the enhancement, where sales are only "irregular or 

occasional," if the sales underrepresent the true "scope of 

the defendant's criminality or the extent to which he 

encouraged or facilitated other crimes." King, 21 F.3d at 

1308. 

There is abundant evidence that the operation in which 

Cottman took part was run with a large measure of 

professionalism. In the Government's recordings, Cottman 

extensively discusses the preparations he put into 

developing sources. After his arrest, Cottman admitted that 

he had taken jobs with cable companies in order to 

cultivate contacts who would acquire boxes for him. Those 

contacts were sophisticated enough to manipulate 

 13 
computer systems at the cable companies to delete the 

stolen boxes from inventory. And, notwithstanding 

Cottman's ill-considered choice to ask the UCA to delete the 

serial numbers for him, Cottman demonstrated an 

awareness of measures which would help to elude 

detection. 

Finally, Cottman argues that the district court should 

have given greater weight to the fact that he has held down 

legitimate employment in the cable industry for many 

years. Asserting that he "clearly is not a millionaire," 

Cottman suggests that his lifestyle and employment is 

inconsistent with the criminal history attributed to him. 

However, the fact that a defendant continues to hold down 

a legitimate job does not foreclose an enhancement. See, 

e.g., St. Cyr, 977 F.2d at 703 ("In searching for evidence of 

regularity, we do not suggest that the selling of stolen 

property must be the dominant source of a defendant's 

income before his felonious activities become sufficiently 

prominent to be regarded as a business."). The district 

court's incredulity was warranted here since Cottman's 

legitimate line of business also neatly facilitated his ability 

to obtain illegal cable boxes. See PSI P 24. 

In sum, the district court did not err in imposing the 

U.S.S.G. S 2B1.1(b)(4)(B) enhancement. The evidence easily 

supports the characterization of Cottman's activities as 

regular and sophisticated. 

C. Restitution of the Government's "Buy Money" 

Cottman also disputes the district court's imposition, as 

a condition of supervised release, of an order requiring him 

to make restitution to the FBI for the money it paid him to 

acquire the illegal cable boxes. Cottman argues that "the 

Government voluntarily spent the money to buy the boxes," 

and therefore "was not the victim of the incident."

In the district court, the Government sought restitution 

to the FBI as a condition of Cottman's supervised release. 

The Government proffered alternate rationales for this 

order. First, the Government argued that its request could 

be sustained under the Victim Witness Protection Act 

 14 
(VWPA), 18 U.S.C. S 3663 to 3664 (1985 & supp. 1995).10 

Second, the Government asserted that the supervised

release statute, 18 U.S.C. S 3583 (1985 & supp. 1995), 

provided an independent basis for an order of restitution. 

See Dep't of Justice Letter of July 10, 1996, Appendix at 

25-32. 

The district court declined to order restitution under the 

VWPA, finding that the FBI was not a "victim" of Cottman's 

offense within the meaning of the Act. Appendix at 44-46. 

However, the district court then proceeded to find that 

Cottman could be required to reimburse the Government's 

buy money under the supervised release statute. The

district court ruled from the bench that, pursuant to 18 

U.S.C. S 3583(d), Cottman would be ordered to repay the 

FBI as a condition of his supervised release since this 

condition involved "no greater deprivation of liberty than is 

reasonably necessary for the purposes of affording adequate 

deterrence to criminal conduct." Appendix at 50. 

The district court chose not to award restitution under 

the VWPA because the prevailing view is that ordinarily the 

Government cannot be a "victim" under the VWPA when its 

losses were incurred as a result of its having provided the 

"buy" money used in a government sting which led to the 

defendant's arrest.11 See Appendix at 46 ("[T]he FBI, I find, 

is not a victim of defendant Cottman's offense and the 

_________________________________________________________________ 

10. The Mandatory Victims Restitution Act of 1996, enacted as Tit. II, 

Subtitle A, of the Antiterrorism and Effective Death Penalty Act of 1996 

(AEDPA), Pub. L. No. 104-132, Apr. 24, 1996, 110 Stat. 1227, 

substantially revised the restitution scheme. Its provisions are not, 

however, directly applicable to this case. AEDPA Subtitle B contains an 

effective date provision providing that "[t]he amendments made by this 

subtitle shall, to the extent constitutionally permissible, be effective 

for 

sentencing proceedings in cases in which the defendant is convicted on 

or after the date of enactment of this Act." AEDPA S 211. Cottman 

entered a plea of guilty on March 7, 1996, while AEDPA was not signed 

into law until April 24, 1996. 

11. See, e.g., United States v. Meacham, 27 F.3d 214, 218-19 (6th Cir. 

1994); United States v. Salcedo-Lopez, 907 F.2d 97, 98 (9th Cir. 1990); 

Gall v. United States, 21 F.3d 107, 111-12 (6th Cir. 1994); United States 

v. Daddato, 996 F.2d 903, 905 (7th Cir. 1993); United States v. Findley, 

783 F. Supp. 1123, 1127 (N.D. Ill. 1991). 

 15 
$34,740 [sic] is not recoverable under the VWPA.");

Appellee's Br. at 26 (conceding in respect to restitution 

orders requiring repayment of buy money as a condition of 

probation, "such disgorgement is arguably improper under 

the restitution statutes, given that they focus squarely on 

compensation to victims and not punishment"). 

We have not yet had to determine whether the VWPA 

allows restitution to the government for funds expended in 

a sting, such as we have here.12 However, the other circuits, 

which have considered the question, have held that 

investigative costs and voluntary expenditures by the 

government to procure evidence are not losses. See, e.g., 

United States v. Khawaja, 118 F.3d 1454, 1460 (11th Cir. 

_________________________________________________________________ 

12. Although the government suggests otherwise, we have issued no 

decisions inconsistent with the view that costs of prosecution generally 

are not recoverable by the government. In the first case cited by the 

government, United States v. Hand, 863 F.2d 1100 (3d Cir. 1988), the 

appellant had pled guilty to one count of criminal contempt arising out 

of improper contact she had had, while a juror in a criminal case, with 

a defendant. Id. at 1101-02. As a result of her improper contact, the 

trial 

judge was forced to vacate the convictions of six defendants. Id. at 1102. 

The district court made it a condition of the appellant's probation that 

she make restitution to the government for the costs of reprosecuting the 

five defendants whose convictions had been voided. Id. We concluded 

that the United States Attorneys' Office was a victim directly affected by 

the appellant's criminal conduct since resources expended in obtaining 

the original convictions were wasted. Id. at 1103-05. 

In the second case, United States v. Kress, 944 F.2d 155 (3d Cir. 

1991), the appellant had been convicted for his role in a scheme to 

defraud the United States Department of Defense on several contracts to 

provide the military with educational and employment training 

programs. Id. at 157 & n.1. The appellant, as a condition of probation, 

was ordered to repay the government $300,000 overfive years with 

interest at a rate of 18% per annum. Id. at 157. We concluded that 

"defendants may be required under the VWPA to pay restitution to 

federal governmental bodies as a special condition of probation." Id. 

(citing Hand). Further, we held that the interest was properly imposed 

since it facilitated the Act's goal of fully compensating the victim, here 

the government. Id. at 159-60. 

Both of these cases are, however, distinguishable since in each the 

government was an unwilling participant in the defendant's criminal 

activity and suffered direct and substantial losses therefrom. 

 16 
1997); United States v. Gibbens, 25 F.3d 28, 36 (1st Cir. 

1994); United States v. Meacham, 27 F.3d 214, 218 (6th 

Cir. 1994); United States v. Salcedo-Lopez, 907 F.2d 97, 98 

(9th Cir. 1990). We will follow this well considered 

construction of the VWPA and hold that, when the 

government chooses to apprehend offenders through a sting 

operation, the government is not a "victim" under the 

provisions of the VWPA. 

However, the district court awarded restitution, not 

under the VWPA, but under 18 U.S.C. S 3583(d).13 Section 

3583(d) of the supervised release statute authorizes the 

imposition of certain of the discretionary conditions of 

probation, set forth in 18 U.S.C. S 3563(b) (1985 & supp. 

1995). When Cottman was sentenced, S 3563(b)(3) 

permitted the district court to order a defendant as a 

condition of probation to "make restitution to a victim of 

the offense under sections 3663 and 3664 . . .." 

_________________________________________________________________ 

13. In imposing "restitution" as a condition of supervised release, the 

district court did not indicate what portion ofS 3583(d) it was referring 

to. Section 3583(d) grants the sentencing judge discretion to: 

 order, as a further condition of supervised release, to the extent 

that 

 such condition-- 

 (1) is reasonably related to the factors set forth in section 

 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); 

 (2) involves no greater deprivation of liberty than is reasonably 

 necessary for the purposes set forth in section 3552(a)(2)(B), 

 (a)(2)(C), and (a)(2)(D); and 

 (3) is consistent with any pertinent policy statements issued by 

 the Sentencing Commission pursuant to 28 U.S.C.S 994(a); 

 any condition set forth as a discretionary condition of probation 

in 

 section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and 

 any other condition it considers to be appropriate. 

18 U.S.C. S 3583(d) (emphasis added). The district court may, therefore, 

have been referring to the "discretionary conditions of probation" prong 

or to the "any other condition" catch-all prong. Since, however, the 

condition of probation being imposed was "restitution," we conclude, for 

the reason we state infra, that "restitution" must have been imposed 

under S 3563(b). 

 17 
The District Court employed the term "restitution" when 

imposing repayment at the sentencing hearing. Appendix at 

59. The amount of the repayment is also entered under 

"Restitution" on the Judgment form. Appendix at 16.

Because this condition of supervised release was specified 

to be "restitution" and because it is S 3563(b) which permits 

the imposition of "restitution" as a condition of supervised 

release, we conclude from the use of this term that the 

order of restitution must follow the provisions of S 3563. 

Otherwise, the "catch-all" exception prong of S 3583(d) 

would swallow the rule. 

For this reason, we conclude that the order incorporated 

by reference S 3563(b)'s terminology "restitution to the 

victim" (emphasis added). Thus, we again are faced with the 

requirement that restitution be made to a "victim." We 

cannot see how the FBI can be a "victim" under S 3563(b) 

if it is not a "victim" under the VWPA. We feel obliged to 

conclude that the statutory provisions are parallel in their 

definition of "victim." See Gall v. United States, 21 F.3d 

107, 111 (6th Cir. 1994) (holding that "S 3583(d) via its 

reference to . . . S 3563(b)(3) requires restitution to conform 

with provisions of the VWPA").14 

On remand, it may be that other victims of Cottman's 

offense can be ascertained. However, for the reasons stated 

above, we hold that the FBI was not a victim and, as a 

result, the conditions of Cottman's supervised release 

cannot include a requirement that he pay restitution to the 

FBI.15 

_________________________________________________________________ 

14. The dissent voices the concern that "a person who knowingly sells 

stolen merchandise should not be permitted to profit from the sale. . . . 

The taxpayer . . . should not have to bear the cost of `buy money.' The 

. . . money involved has gone into the defendant's pocket and to the 

extent practicable should be recovered." Dissent at 26. We are not 

unsympathetic with this point of view. We note, however, that in future 

cases the district court may consider imposing afine which is equivalent 

to the amount of any buy money a defendant has received from the 

Government. See U.S.S.G. S 5E1.2. 

15. Because the district court may choose to consider other conditions of 

supervised release, we remand rather than reverse. We note, however, 

that at sentencing the district judge noted that Cottman did not have the 

ability to pay a fine. Appendix at 59. 

 18 
III. Conclusion 

In view of the aforesaid, Cottman's judgment of sentence 

will be affirmed insofar as it imposed a term of 

imprisonment with an enhancement under S 2B1.1(b)(4)(B). 

We will, however, vacate the conditions of supervised 

release portion of the judgment of sentence, imposing the 

condition of payment of restitution to the FBI. We will 

remand this case to the district court for resentencing. 

 19 
LUDWIG, District Judge, concurring and dissenting: 

I join in the majority's decision on lack of mootness and 

affirmance of the application of the four level "in the 

business" Guidelines enhancement. U.S.S.G. S 2B1.1. I 

respectfully dissent from its decision to vacate the condition 

of supervised release requiring repayment to the 

government of $32,420 in "buy money" provided to 

defendant by the FBI. Defendant received those monies, in 

various installments, from an undercover agent in exchange 

for 231 stolen TV boxes - the subject matter of the

conspiracy charge to which defendant pleaded guilty. The 

crime occurred in 1995, and the defendant was sentenced 

on July 22, 1996. 

The majority holds that restitution of "buy money" is not 

an authorized condition of supervised release under the 

Victim Witness Protection Act of 1982, 18 U.S.C. SS 3663- 

3664 (1985 & supp. 1995) or the supervised release 

statute, 18 U.S.C. S 3583 (1985 & supp. 1995). Its 

reasoning is that the expenditure of "buy money" is a cost 

of law enforcement and does not qualify the government as 

a "victim" - the traditional prerequisite of restitution. I 

agree with that analysis as relates to the VWPA.1 However, 

I do not believe it is necessary to decide that issue in 

applying the supervised release statute to this case. First, 

the sentencing judge did not intend to order "restitution" in 

the victim-related sense of the word - which is the

underlying premise of the majority's conclusion. Second, I 

would hold that the repayment of "buy money" is 

authorized as a discretionary condition of supervised 

release under 18 U.S.C. S 3583(d)(3). 

_________________________________________________________________ 

1. 18 U.S.C. SS 3663-3664. See United States v. Gibbens, 25 F.3d 28, 32 

(1st Cir. 1994) ("[T]he government is not a`victim' for purposes of the 

VWPA [and may not be awarded restitution] to the extent that it incurs 

costs in the clandestine provocation of a crime that, if carried to 

fruition 

under ordinary circumstances, would not directly harm the 

government."); accord United States v. Meacham, 27 F.3d 214, 218 (6th 

Cir. 1994); United States v. Salcedo-Lopez, 907 F.2d 97, 98 (9th Cir. 

1990). 

 20 
I 

The sentencing judge stated, after discussing the victimrestitution cases: 

 [T]he FBI, I find, is not a victim of defendant Cottman's 

 offense and the "buy money" is not recoverable under 

 the VWPA. Therefore, I agree with defendant's objection 

 to the award of restitution to the FBI. Restitution 

 should be made to the owners of the cable boxes .... 

 I'm ordering that the boxes be returned to their rightful 

 owners as restitution. 

Appendix at 46-47. The sentencing judge then reviewed the 

"buy-money" decision in United States v. Daddato, 996 F.2d 

903 (7th Cir. 1993) and concluded that authority for a 

repayment order was conferred by the supervised release 

statute provision: "any other condition [the court] considers 

to be appropriate." 18 U.S.C. S 3583(d)(3). 

The sentencing judge - as the majority stresses- referred 

at times to the repayment as "restitution" and the 

repayment is so characterized on the judgment of sentence 

form. Nevertheless, the judge's sentencing statement 

unmistakably shows the intent to follow Daddato and to 

exercise "any other condition" discretion, not to order 

restitution to the FBI as a victim. Appendix at 47-50, 59. 

The significance of the distinction is more than semantic. 

By incorporating by reference the conditions authorized in 

the probation statute, the supervised release statute also 

empowers the sentencing judge to order "restitution to the 

victim." 18 U.S.C. S 3563(b)(3). Under the VWPA cases, that 

provision, by its own terminology, could not be utilized to 

order a repayment of "buy money." Despite the finding of 

the sentencing judge that the FBI was not a "victim" and 

was not entitled to victim-related "restitution," the majority 

conclusively infers that the condition was imposed under 

S 3563(b)(3) and was, accordingly, invalid. 

Moreover, the idea of restitution, which historically has 

involved redress to a victim, has been evolving to include 

victimless reparations.2 The sentencing judge's sporadic use 

_________________________________________________________________ 

2. The VWPA amendment of 1996, 18 U.S.C. S 3663(c)(1), includes 

restitution of "community harm" in drug cases where there is no 

"identifiable victim." 

 21 
of "restitution" in a non-victim-related sense to refer to the 

repayment of "buy money" has good precedent. In Daddato, 

now Chief Judge Posner's decision characterizes the

repayment of "buy money" as "in the nature of restitution," 

observing that "[we] need not determine whether such an 

order is also classic `restitution'...." 996 F.2d at 903, 905. 

See United States v. Brooks, 114 F.3d 106, 108 (7th Cir. 

1997) ("In Daddato, after noting that an order to repay buy 

money as "restitution" under the[VWPA] was not cricket, 

we found that such an order would nevertheless pass

muster as a condition of supervised release" (bold in 

original)). The majority's predicate that the sentencing judge 

must have intended to act under 18 U.S.C. S 3563(b) simply 

is not well founded. The sentencing judge was well aware of 

both the traditional compensatory and the victimless, or 

nontraditional, meaning of "restitution" - and clearly did 

not believe he was invoking S 3563(b).3 

_________________________________________________________________ 

3. After the government's Petition for Panel Rehearing was granted, the 

majority modified its opinion to say that the sentencing judge "did not 

indicate what portion of 18 U.S.C. S 3583(d) it was referring to..." - the 

"discretionary conditions of probation" prong or the "any other condition" 

catch-all prong. Majority at note 13. This, in my view, mischaracterizes 

the clear record. The sentencing judge read into the record a substantial 

excerpt of Daddato including the citation of the "any other condition" 

catch-all prong of S 3583(d) as the statutory basis for its holding. 

Appendix at 48. He also stated that the government relied on Daddato 

and that Daddato "relied on the catch-all phrase of the supervised 

release statute." Id. at 47. His ruling was that "the government's request 

is granted and defendant will be ordered to repay the FBI the amount 

of " the "buy money." Id. at 50. In so ruling, he did not refer to 

"restitution," id., albeit he did elsewhere. 

Moreover, the parties in their argument to us had no doubt that the 

sentencing judge intended to invoke the "any other condition" clause. As 

set forth in appellant's brief, "the United States ... relied upon the 

`catchall' provision of 18 U.S.C. Sec. 3583(d) and United States v. Daddato...." 

Appellant's brief at 8. Appellant did not resort to the majority's 

"discretionary condition" distinction - but instead specifically 

challenged 

the sentencing judge's utilization of the "catch-all" prong. The very 

ground that the majority regards as not before us was argued by both 

sides as the basis for the sentencing judge's decision. 

On remand, the availability of the "catch-all" provision has at this 

point not been ruled on, and it is unclear whether the sentencing judge 

 22 
II 

Daddato dealt with precisely the same question as is 

presented here: 

 Pursuant to his plea of guilty, James Daddato was 

 convicted of ... selling hallucinogenic mushrooms and 

 sentenced to 16 months in prison to be followed by 

 three years of supervised release. His appeal challenges 

 one of the conditions of supervised release: that he 

 repay the $3,650 that he received from law 

 enforcement officers in payment for mushrooms that 

 they bought from him in order to obtain conclusive 

 evidence of his guilt. The statute governing supervised 

 release empowers the sentencing judge to impose as a 

 condition of such release any condition authorized as 

 discretionary condition of probation plus "any other 

 condition it considers to be appropriate." 18 U.S.C. 

 S 3583(d). Obviously the language is broad enough to 

 encompass the requirement that the defendant make 

 good the government's "buy money"; nor could the 

 imposition of such a requirement be thought an abuse 

 of discretion - it merely asks the defendant (if he is 

 financially able, once his release from prison enable 

 him to obtain a paying job) to make good the expense 

 to which he put the government by violating the laws 

 that prohibit drug trafficking in a selected subset of 

 mind-altering drugs. 

996 F.2d at 903. 

_________________________________________________________________ 

may now order repayment of the "buy money" so long as he explicitly 

states that he is using the "catch-all" provision and does not mention the 

word "restitution." At a minimum, I would have remanded to permit the 

sentencing judge to re-clarify his intent on this subject in view of the 

majority's concerns. 

Given the majority's modification of the language in its original 

decision, Part III of my dissent may have little remaining significance. 

Nevertheless, I have not removed Part III because it emphasizes the need 

of the sentencing judge to be able to order the return of "buy money" as 

a condition of supervised release under the "any other appropriate 

condition" provision of S 3583(d). 

 23 
The opinion then rejects the argument that repayment of 

"buy money" is beyond the sentencing judge's power 

because "any other condition" must be comparable, by 

virtue of "ejusdem generis," to the 20 specific conditions 

that precede it. Daddato explains that the return of "buy 

money" is comparable to, albeit not the same as, traditional 

"restitution." 

 An order to repay the government's "buy money" is 

 similar in requiring the defendant to convey something 

 of value to the community, rather than to his victims 

 (if any there be) specifically. State v. Connelly, 143 Wis. 

 2d 500, 421 N.W.2d 859 (App. 1988). 

 * * * * 

 On the one hand, it seems unrealistic to describe the 

 defendant as having wrongfully taken money eagerly 

 tendered to him so that he could incriminate himself. 

 On the other hand, it was money that he obtained 

 through criminal activity and therefore had no right to 

 keep. No matter. The list in section 3563(b) is not 

 limited to restitution, or even to conditions that 

 resemble restitution (which this, at the very least, 

 does); it is enough that the order to repay the buy 

 money is of the same general kind as the items in the 

 list, and it is. 

996 F.2d at 905 (bold in original). 

The year after Daddato, a panel of the Sixth Circuit Court 

of Appeals granted S 2255 relief where a supervised release 

condition to repay "buy money" was imposed as to four 

drug charges, although three of the charges had been 

dismissed in exchange for the defendant's guilty plea to the 

fourth. Gall v. United States, 21 F.3d 107 (6th Cir. 1994). 

The decision, after confining "restitution" as a condition of 

supervised release to crimes "charged and convicted," 

described the second part of its holding: "the government is 

not a victim to which a district court may order a defendant 

to pay restitution for the purpose of recovering drug `buy 

money' and other costs of investigation voluntarily paid 

out." 21 F.3d at 108 (bold in original). In much the same 

way as our majority, which cites Gall for this point, it 

ignores Daddato and equates repayment of "buy money" 

 24 
with traditional "restitution"; it then summarily conflates 

S 3563(b)(3) with the VWPA because of the incorporation by 

reference of S 3563(b)(3) - "restitution to the victim." 

The concurrence in Gall, however, focuses on Daddato 

and criticizes it for having resorted to the "any other 

condition" provision of S 3583(d). Interestingly, the rationale 

is not that the restoration of "buy money" must be 

classified or construed to be the same as victim-related 

restitution. 

 Under S 3583(d)(2) ... a sentencing judge can only order 

 additional "appropriate" conditions of supervised 

 release that "involve no greater deprivation of liberty 

 than is reasonably necessary for the purposes of: (1) 

 affording adequate deterrence to criminal conduct; (2) 

 protecting the public from further crimes of the 

 defendant; and (3) providing the defendant with ... 

 training ... care ... or treatment.... 

 * * * * 

 Ordering a criminal defendant, as a condition of 

 supervised release, to repay the government's buy 

 money or other investigative costs deprives the 

 defendant of liberty during the period of supervised 

 release, yet does not advance any of these three 

 purposes.... Indeed, such a deprivation of liberty ... 

 could actually encourage the defendant to commit 

 further crimes as a means of repaying such an onerous 

 financial burden. 

21 F.3d at 112-113. 

In the instant sentencing, the judge quoted the aboveportion of the concurrence and stated: 

 I disagree with Judge Jones' reasoning. This is because 

 I find that ordering the defendant, pursuant to 

 S 3583(d) to repay the FBI as a condition of his 

 supervised release, even though restitution of this 

 money to the FBI is not authorized under the VWPA, 

 involves no greater deprivation of liberty than is 

 reasonably necessary for the purposes of affording 

 adequate deterrence to criminal conduct. 

 25 
Appendix at 50. 

In my view, the sentencing judge correctly overruled 

defendant's "buy money" objection that was based on the 

Gall concurrence. The repayment of "buy money" imposes 

no greater deprivation of liberty and is no less a deterrent 

of criminal conduct than traditional restitution and other 

specifically authorized conditions of supervised release. 

III 

The broader question presented by this case is the nature 

and extent of the sentencing options that are statutorily 

authorized to achieve the objectives of sentencing. Under 18 

U.S.C. S 3553, the sentencing judge is directed to consider, 

in part - 

 (1) the nature and circumstances of the offense an d 

 characteristics of the defendant; 

 (2) the need for the sentence imposed - 

 (A) to reflect the seriousness of the offense, to 

 promote respect for the law, and to provide just 

 punishment for the offense; 

Given these purposes, it would seem to be beyond 

dispute that a person who knowingly sells stolen 

merchandise should not be permitted to profit from the 

sale. The provision of the supervised release statute that 

authorizes "any other condition [the court] considers to be 

appropriate," is in addition to - and not synonymous with 

or subordinate to - the condition authorizing victim-related 

restitution. The costs of law enforcement are paid from 

taxes, and criminal defendants are not required to 

reimburse the government for their day in court. The 

taxpayer, however, should not have to bear the cost of "buy 

money." The difference is that the money involved has gone 

into the defendant's pocket and to the extent practicable 

should be recovered. This is a self-evident corollary of 

"respect for the law" and "just punishment." 

The majority's decision today puts an incongruous and 

unnecessary limitation on the power of the sentencing 

judge to effectuate the legislatively mandated goals of 

sentencing. 

 26 
A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 27