The Honorable Russell G. Clark, United States District Judge 1

for the Western District of Missouri, presiding.

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No. 96-2475

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Terry A. Collins, *

*

Appellant. *

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Submitted: December 10, 1996

Filed: January 9, 1997

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Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.

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MURPHY, Circuit Judge.

Terry A. Collins pled guilty to one count of interstate

transportation of stolen property in violation of 18 U.S.C. §

2314 and was sentenced by the district court to 24 months. 1

Collins argues on appeal that his sentence was improperly

enhanced and that the court erred in departing upward. We

affirm.

From September to December of 1993, Collins broke into and

stole items from numerous locked storage units located in

Arkansas, Oklahoma, Texas, Kansas and Missouri. When interviewed

while in custody by authorities in Bixby, Oklahoma, Collins

identified Truman Burgess as his partner in his criminal

activity. Burgess was the owner of Truman’s Auction in

Tallequah, Oklahoma. Collins and Burgess would travel to an
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area, commit several burglaries, load the stolen goods into a

stock trailer, and return to Truman’s Auction in Oklahoma. 

Burgess would then sell the items through the auction house and

split the proceeds with Collins. These burglaries resulted in

the present federal charges and five other felony convictions in

the states of Texas and Arkansas. There is evidence that Collins

also participated in approximately 16 other burglaries for which

state or federal charges were never brought.

At sentencing, the district court considered Collins' state

convictions as relevant conduct under U.S.S.G. § 1B1.3, rather

than using them to calculate his criminal history. He thus

received zero criminal history points, but the value of his

thefts was higher which raised his offense level one point. The

district court also imposed a four level enhancement under

U.S.S.G. § 2B1.1(b)(4)(B) because Collins was “in the business”

of receiving and selling stolen goods. Finally, the district

court departed upward under U.S.S.G. § 4A1.3 because Collins’

criminal history category did not adequately represent the

seriousness of his past criminal conduct. 

The parties disagree as to the appropriateness of the

enhancement and the upward departure. Collins argues his offense

level should not have been raised four points under U.S.S.G §

2B1.1(b)(4)(B) because he was not in the business of receiving

and transporting stolen goods. Collins also claims that the

upward departure was wrong because it essentially double counted

his state convictions. The United States counters that there is

sufficient evidence to support the four level increase and that

the district court’s decision to depart upward was within its

discretion.

Several standards of review have been developed for
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reviewing a sentence under the guidelines. The correct

application of the guidelines is a question of law subject to de
 Under the circumstances it is not necessary to choose between 2

the "fence" test and the "totality of the circumstances" test

developed in other circuits for interpreting § 2B1.1(b)(4)(B). 

The “fence” test requires proof that the 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). The “totality of the

circumstances” test requires examination of all the facts to

assess the "regularity and sophistication of a defendant’s

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

1995 (citation 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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novo review. United States v. Werlinger, 894 F.2d 1015, 1016

(8th Cir. 1990). A factual determination of the sentencing court

is reviewed under a clearly erroneous standard. See United

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

decision to depart from the guidelines will be reviewed for an

abuse of discretion. See Koons v. United States, 116 S.Ct. 2035,

2047 (1996). 

There is sufficient support in the record for the district

court’s decision to impose the four level increase under U.S.S.G.

§ 2B1.1(b)(4)(B). Truman’s Auction in Tallequah Oklahoma was a

business which received and sold stolen goods. Collins was an

integral part of the scheme by which the auction house received

and sold stolen goods. Since he split the proceeds of sales at

Truman’s Auction house after the sales occurred, Collins was part

of a business which received and sold stolen goods. Collins was

thus in the business of receiving and selling stolen goods within

the meaning of U.S.S.G. § 2B1.1(b)(4)(B).2

The district court’s decision to depart from the guidelines

was not an abuse of discretion. There was ample evidence that
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Collins’ criminal history category did not reflect the

seriousness of his criminal activity. There is evidence that
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Collins participated in approximately 16 burglaries for which

neither federal nor state charges were ever brought. Uncharged

conduct can properly be considered when departing under U.S.S.G.

§ 4A1.3. See United States v. Harris, 70 F.3d 1001, 1003 (8th

Cir. 1995). These 16 instances of uncharged conduct were not

considered in calculating his offense level, and there was an

appropriate basis for departure. The district court’s decision

to depart upward was not an abuse of discretion.

Collins also complains that the district court jumped over

several categories in departing upward. The district court

departed from the guidelines by treating Collins’ criminal

history category as category IV instead of I. It concluded that

Collins “stole property from storage units in at least five

states over a lengthy period of time” and that a criminal history

category of I was “not appropriate relative to the amount of

burglaries [he committed].” This court has indicated that a

court should proceed step by step in deciding on the degree of

departure: 

To impose an upward departure under § 4A1.3, the

sentencing court first must proceed along the criminal

history axis of the sentencing matrix, comparing the

defendant’s criminal history with the criminal

histories of other offenders in each higher category. .

. . Though our prior cases do not make compliance with

§ 4A1.3 a ‘ritualistic exercise,’ the record must

reflect that this Guideline has been properly applied.

United States v. LeCompte, 99 F.3d 274, 280 (8th Cir. 1996)

(citations omitted). Although the district court did not

specifically mention that it had considered each intermediate

criminal history category, its findings were adequate to explain

and support the departure in this particular case.
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For these reasons we affirm the sentence of the district

court.
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A true copy.

 Attest:

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