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No. 96-2390

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Terri A. Payseno, *

*

Appellant. *

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Submitted: December 10, 1996

Filed: January 8, 1997

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Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.

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MURPHY, Circuit Judge.

Terri A. Payseno appeals from her eighteen month sentence for

interstate transportation of stolen property in violation of 18

U.S.C. § 2314. She charges that the district court erred in

enhancing her guidelines sentence. We remand for resentencing.

In calculating her total offense level, the district court

imposed a two level increase for more than minimal planning under

U.S.S.G. § 2B1.1(b)(4)(A) and a four level increase for being in

the business of receiving and selling stolen goods under U.S.S.G.

§ 2B1.1(b)(4)(B). Payseno contends on appeal that U.S.S.G. §

2B1.1(b)(4) does not permit enhancements under both subparts (A)

and (B), and that while she admits to transporting stolen property,

the record does not establish that she was in the business of

receiving and selling stolen goods. She also argues that the

addition of both enhancements to the offense level for her
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underlying charge amounts to impermissible triple counting. The

United States concedes that enhancement under both subparts (A) and

(B) is improper, but argues that Payseno did not raise her

objections to the district court, that there is no need to remand

because her sentence is still within the appropriate guideline

range, and that the record established she was in the business of

receiving and selling stolen goods. 

The correct application of the guidelines is a question of law

subject to de novo review, see United States v. Werlinger, 894 F.2d

1015, 1016 (8th Cir. 1990), but factual determinations are reviewed

under a clearly erroneous standard. See United States v.

Phillippi, 911 F.2d 149, 152 (8th Cir. 1990).

The Presentence Investigation Report (PSR) contains Payseno’s

admission to selling stolen animal pharmaceuticals and implants.

Some of these items she stole from places where she worked, and

others she burglarized elsewhere. She also received stolen

pharmaceuticals and implants from Tim Lewis which she then sold.

The PSR indicated that there was a factual basis for enhancements

under U.S.S.G. §§ 2B1.1(b)(4)(A) and (B).

The only written objection to the PSR made on her behalf

related to the calculation of the value of losses to the victims,

but at the sentencing hearing Payseno tried to explain how she came

to obtain goods from Lewis. Since her remarks appear to have been

offered as an objection to the four point enhancement, that issue

is sufficiently preserved on appeal. The district court may

receive objections at any time before imposition of sentence, Fed.

R. Crim. P. 32(b)(6)(D), and the rules provide an opportunity at

the sentencing hearing to comment on the PSR, Fed. R. Crim. P.

32(c)(1). After hearing the comments of the parties, the court

adopted the factual statements in the PSR as its findings of fact
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and proceeded to calculate the guideline range and impose sentence.
 Under the “fence” test, the government must show that the 1

defendant was a person who buys and sells stolen property, and

thereby encourages others to commit property crimes. See United

States v. Warshawsky, 20 F.3d 204, 214 (6th Cir. 1994); United

States v. Esquivel, 919 F.2d 957, 959 (5th Cir. 1990); United

States v. Braslawsky, 913 F.2d 466, 468 (7th Cir. 1990). Under

the “totality of the circumstances” test, the district court

undertakes a case by case examination of the facts focusing on

the "regularity and sophistication of a defendant’s operation." 

United States v. Zuniga, 66 F.3d 225, 228 (9th Cir. 1995)

(citation omitted) (internal quotations omitted); see also,

United States v. King, 21 F.3d 1302, 1306 (3d Cir. 1994); United

States v. St. Cyr, 977 F.2d 698, 703 (1st Cir. 1992).

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The court’s factual findings indicate that Payseno received

and sold stolen goods for profit over an extended period of time.

Her own version of the facts in the PSR included an admission that

she specifically purchased products from Lewis which she knew were

stolen. The record was sufficient to support the finding that

Payseno was in the business of receiving and selling stolen goods

and to support the application of the U.S.S.G. § 2B1.1(b)(4)(B)

enhancement. Under these circumstances, it is not necessary to

employ either of the two competing tests used in other circuits to

determine whether someone is in such a business.1

Payseno argues that adding the two and four level enhancements

to her offense level for the underlying crime amounts to triple

counting, citing United States v. Werlinger, 894 F.2d 1015 (8th

Cir. 1990). Werlinger held that enhancements for both embezzlement

and obstruction of justice could not be based on the exact same

behavior. In contrast, Payseno will not be punished twice for the

same behavior if one of the enhancements is applied. She pled to

interstate transportation of stolen property with a value of more

than $20,000, for which she was assigned an offense level of 6

under U.S.S.G. § 2B1.1(b)(1)(G). This offense level can be

properly enhanced under § 2B1.1 (b)(4) for more than minimal
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planning or for being in the business of receiving and selling

stolen goods. Neither of these enhancements is based on the same
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criminal behavior as her underlying charge.

Both parties agree that the district court erred in imposing

both the two level enhancement under § 2B1.1(b)(4)(A) and the four

level enhancement under § 2B1.1(b)(4)(B). Section 2B1.1(b)(4) is

written with the conjunction “or” between subparts (A) and (B).

The clear meaning is that one enhancement or the other may be

applied to the offense level, but not both.

The government argues that a remand is unnecessary because

even if the two level enhancement were eliminated, the 18 month

sentence previously imposed would be within the new guideline range

of 12-18 months. The government’s argument assumes that the

district court would remove that enhancement, rather than the four

level enhancement, and select 18 months as the appropriate point in

the guideline range. The 18 month sentence was at the low point of

the original guideline range of 18-24 months, however. Reducing

her offense level by two would make an 18 month sentence the

longest sentence possible within the appropriate range. The

district court should have the opportunity to consider the

possibilities. 

Accordingly, the imposition of both enhancements in §

2B1.1(b)(4) is reversed, and the case is remanded for resentencing.

A true copy.

 Attest:

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