United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 01-1605

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United States of America, *

*

Appellee, * Appeal from the United States

v. * District Court for the 

* District of South Dakota

*

Napae Luta Young, *

*

Appellant, *

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Submitted: October 16, 2001

Filed: December 6, 2001 

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Before WOLLMAN, Chief Judge, LAY and RILEY, Circuit Judges.

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RILEY, Circuit Judge.

Napae Luta Young appeals his sentence. Young pled guilty to one count of

larceny in violation of 18 U.S.C. §§ 1153 and 661. At sentencing, the district court

imposed a 16-month term of imprisonment followed by a 3-year term of supervised

release. In calculating Young's offense level under the United States Sentencing

Guidelines (U.S.S.G.), the district court assessed a two-level enhancement for more

than minimal planning. The district court also ordered restitution in the amount of

$9,700,which included approximately $4,000 awarded to the victim for lost profits.
1

 Investigative documents cited in the presentence investigation report ("PSR")

indicated a screwdriver handle was found outside the White Horse Herbs and Trading

Post, and the rest of the tool was found several blocks away jammed into the ignition

of a motor vehicle. The PSR does not conclude Young used the screwdriver in the

commission of any crime. The district court's sentencing and our review are not

based on a finding that Young used the screwdriver. 

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On appeal, Young argues that the district court erred in (1) finding more than minimal

planning in the commission of the larceny and (2) ordering restitution for lost profits.

We affirm in part and reverse in part.

I. BACKGROUND

In October 1999, Young decided to steal American Indian merchandise from

the White Horse Herbs and Trading Post in Mission, South Dakota. Young resided

with his aunt in the Old Ring Thunder Community located approximately 12 miles

from Mission. Because Young had no access to a car, he walked the 12 miles to

Mission carrying a large backpack containing a hammer. 

Young arrived in Mission near midnight. He walked along Main Street and

looked for signs of any activity. Finding none, he walked to the trading post which

had bars on the doors and windows on the main floor. Young then climbed a tree

near the trading post and used the hammer to claw an opening in the siding near a

roof gable. Young entered the building through the opening and descended to the

main floor where the merchandise was located. He filled the backpack with

American Indian artifacts and souvenirs. Young then exited the building with the

merchandise through the same opening and crawled down a ventilation pipe. Young

walked the 12 miles back to the Old Ring Thunder Community and hid the stolen

merchandise in an abandoned home near his aunt's residence.1

After capture ,Young confessed to the theft. The merchandise stolen from the

trading post was valued at over $20,000. All but approximately $5,600 of the
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merchandise was recovered. A grand jury returned an indictment against Young

charging him with burglary, in violation of 18 U.S.C. § 1153 and S.D. Codified Laws

§ 22-32-8, and larceny, in violation of 18 U.S.C. §§ 1153 and 661. Young pled guilty

to Count II, the larceny charge, without a plea agreement. The district court

sentenced Young to a 16-month term of imprisonment and ordered restitution in the

amount of $9,700, which included $5,450.08 owed to the victim's insurer for claims

paid, $250 owed to the victim for her insurance deductible, and $3,999.92 owed to

the victim for lost profits. 

II. DISCUSSION

A. More Than Minimal Planning

Young challenges the district court's finding that the offense involved more

than minimal planning. SeeU.S.S.G. § 2B1.1(b)(4)(A) (Nov. 2000) (prescribing twolevel increase for more than minimal planning). Application note 1(f) to U.S.S.G.

§ 1B1.1 states "more than minimal planning" is present if the offense involved "more

planning than is typical for commission of the offense in a simple form," if the

defendant took "significant affirmative steps" to conceal the offense, or if the case

involved "repeated acts over a period of time, unless it is clear that each instance was

purely opportune." The application note further states the adjustment for more than

minimal planning "will apply especially frequently in property offenses." 

Whether Young engaged in more than minimal planning is a fact question

reviewed only for clear error. United States v. Lim, 235 F.3d 382, 384 (8th Cir.

2000). The defendant argues that the facts do not support an upward adjustment for

more than minimal planning. The district court found that the details contained in the

presentence investigation report ("PSR") established far more than minimal planning

as to a larceny. The defendant did not object to the factual statements contained in

the PSR describing his actions in planning and executing the larceny. We have held

that unless a defendant objects to specific factual allegations contained in the PSR,
2

 In determining the offense was not a typical larceny, the district court also

referenced statements made by the government describing precautions the owner had

taken to secure the trading post from thieves. Young argues that the record contains

no evidence of the owner's efforts to fortify the trading post. The PSR does contain

a factual description that the trading post "looks like a personal home with bars on the

doors and windows on the main floor." The PSR does not contain factual allegations

of any other specific precautionary measures taken by the owner to secure the trading

post. 

In both its written objections to the PSR and in oral statements at sentencing,

the government argued that the owner had taken additional security measures to

prevent thefts at the trading post. To the extent the district court may have relied on

crime prevention efforts not documented in the PSR or otherwise admitted in

evidence when applying the enhancement for more than minimal planning, such

reliance would have been improper because the record contains no evidence

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a district court may accept the facts as true for purposes of sentencing. United States

v. Moser, 168 F.3d 1130, 1132 (8th Cir. 1999) (citations omitted). 

 The PSR contains numerous factual statements supporting an upward

adjustment for more than minimal planning. These include Young's forethought in

committing the larceny; his 12 mile walk for that purpose; his plans to use a large

backpack and hammer to commit the larceny; his circumvention of the bars on the

first floor doors and windows of the store by climbing a tree and then clawing an

opening in the siding near a roof gable; and his act of hiding the stolen merchandise

in an abandoned house. These undisputed facts establish that Young took discrete

steps in furtherance of his plan before he actually stole the merchandise and took

another affirmative step after committing the larceny to conceal the offense. Young's

actions show considerably more forethought and planning than the U.S.S.G.'s

illustration of a shoplifter who lifts an item from the shelf of an open store, walks to

a secluded part of the store, and conceals the item in his coat pocket. See U.S.S.G.

§ 1B1.1, cmt. n.1(f). Therefore, we conclude that the district court did not err in

applying a two-level enhancement for more than minimal planning.2
supporting such efforts. Because we find the PSR provides ample undisputed facts

to justify a two-level enhancement for more than minimal planning, we conclude any

such error would have been harmless.

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B. Restitution for Lost Profits

Young also contends the district court erred in ordering $4,249.92 in restitution

for the victim. Young does not challenge the restitution order for amounts paid on

insurance claims.

Restitution is mandatory upon a conviction for an offense against property

under Title 18 when an identifiable victim suffers a physical injury or pecuniary loss.

18 U.S.C. §§ 3663A(a)(1) and 3663A(c)(1). We review a district court's finding of

loss relating to restitution under a clearly erroneous standard. United States v. Cupit,

169 F.3d 536, 538 (8th Cir. 1999). The district court resolves any dispute regarding

the amount or type of restitution by the preponderance of the evidence, and the

government bears the burden of "demonstrating the amount of the loss sustained by

a victim as a result of the offense." 18 U.S.C. § 3664(e). 

Young argues the restitution order for lost profits is based entirely upon

speculation. We agree. The government presented no evidence to prove the amount

of lost profits sustained by the store owner. At sentencing, government counsel

conceded that he knew the amount of lost profits would be disputed. Government

counsel informed the court that he had warned the owner if she did not appear at the

sentencing hearing to testify to lost profits, she risked not receiving restitution, and

the owner had elected not to testify. 

 The government contends that because Young failed to object to the restitution

estimates contained in the PSR, the government was not required under Moser to

prove lost profits, and the district court may accept the estimates as true. We do not
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agree that Moser supports either of these propositions. In Moser, the defendant

challenged the conclusion contained in the PSR that a sentencing enhancement was

warranted but did not object to the specific factual allegations on which the

conclusion relied. Moser, 168 F.3d at 1132. We held that unless a defendant objects

to a specific allegation of fact contained in the PSR, a court may accept as true that

fact for purposes of sentencing the defendant. Id. 

 In the instant case, the PSR contained no specific factual allegations

substantiating the victim's request for lost profits. The PSR simply recounted the

victim's estimate of lost retail sales in the amount of $4,000. The PSR contained no

independent documentation verifying the estimate, and the PSR acknowledged "the

entire amount of restitution owed is uncertain." 

 After reviewing the PSR, Young's counsel wrote to the presentence

investigator expressly reserving the right to challenge restitution of a sum certain and

copied the letter to the government. At sentencing, Young's counsel objected to the

government's lack of proof of lost profits. 

Because the district court relied only on the victim's "uncertain" estimate in

ordering restitution for lost profits, we conclude the court committed clear error.

Furthermore, because we conclude that the government failed to prove lost profits,

restitution must be limited to documented claims of $5,450.08 payable to the

insurance company and the $250 insurance deductible payable to the insured victim.

See United States v. Searing, 250 F.3d 665, 667-68 (8th Cir. 2001). 

C. CONCLUSION

For the foregoing reasons, we vacate the restitution for lost profits ordered by

the district court, and we remand for entry of a modified restitution order consistent

with this opinion. We affirm Young's conviction and sentence in all other respects.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.