*

Honorable Myron H. Bright, Senior U.S. Circuit Judge for

the Eighth Circuit, sitting by designation. 

United States Court of Appeals

Eleventh Circuit.

No. 94-5321.

UNITED STATES of America, Plaintiff-Appellee,

v.

Brian KING, Defendant-Appellant.

July 16, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 94-8037-CR-DTKH), Daniel T.K. Hurley,

Judge.

Before COX and BARKETT, Circuit Judges, and BRIGHT*

, Senior Circuit

Judge.

BARKETT, Circuit Judge:

Brian King appeals his conviction and sentence for possession

of stolen property under 18 U.S.C. § 2315. King argues that the

district court committed reversible error by inferring in the

presence of the jury that the government had established an element

of the offense. He also argues that the court sentenced him based

on relevant conduct that was unsupported by the record. We affirm

King's conviction but vacate his sentence and remand for

resentencing.

The government charged that, while in West Palm Beach, King

received and tried to sell two paintings that had been stolen from

the Greenwich, Connecticut home of Walter Bartlett. To convict

King under § 2315, the government was required to prove that the

paintings crossed state lines, that the paintings were worth at

least $5,000, and that King received, possessed or sold them with
knowledge that they were stolen. See 18 U.S.C. § 2315.

At trial, Bartlett testified that he was the owner of the two

paintings that King was charged with possessing, and that the two

paintings, along with twelve others, and several antiques had been

stolen during a burglary of his Greenwich, Connecticut home. He

further testified that King was a friend of his son and had been a

houseguest in his home. An employee of the office building where

King worked in West Palm Beach, Michelle Schossler, testified that

King asked her if he could use storage space in the building for a

shipment he was expecting. She also testified that King used the

telephone in her presence, identified himself as "Bob or Rob" and

inquired whether his "shipment was there." She further testified

that, some time later, King remarked that his shipment had just

arrived and pointed out a large white unmarked van that was pulling

up. She testified that she thereafter saw King photographing "15

or so" paintings in a storage room she had allowed him to use.

Schossler was able to positively identify two of the paintings from

photos of Bartlett's paintings. A West Palm Beach antique dealer

testified that King contacted him in an effort to sell some of the

paintings, and further testified that King brought three of the

paintings in to his store. The jury convicted King of possession

of stolen property.

At King's sentencing, the government argued that King should

be sentenced based on the value of all the property taken in the

burglary of Bartlett's home because the burglary was "relevant

conduct" to King's possession of stolen property. The district
 1

Bartlett valued the stolen property at $300,000, the police

report indicated that the total value of items stolen was

$196,000. 

 2Based on a property value of more than $200,000, the base

offense level of 4 was increased 10 levels, see U.S.S.G. §

2B1.1(b)(1)(K). King was also given a two level increase for

more than minimal planning, see id. § 2B1.1(b)(4)(A). 

 3Because King failed to object at trial, we apply a plain

error standard. United States v. Olano, 507 U.S. 725, 736-37,

113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 (1993). 

court agreed with the government and valued the loss at $300,000,1

which included all the stolen property and established King's

offense level at 16 with a corresponding guidelines range of 41 to

51 months,2 and sentenced King to 42 months.

 King first argues that the trial judge committed plain error

when, in the presence of the jury, he asked the parties if they

objected to the owner taking "his paintings" home.3 King asserts

that the comment conveyed to the jury that the judge believed the

paintings belonged to Bartlett and, because Bartlett lives in

Connecticut, that the paintings had travelled in interstate

commerce. King argues that he was prejudiced because the judge's

comment left him with only one statutory element to disprove: that

he knew the paintings were stolen. At trial however, King did not

challenge the government's theory that the paintings had been

stolen from Bartlett's home in Connecticut. Indeed, King's theory

of defense was that Bartlett's son had stolen the paintings.

Accordingly, we find this argument meritless and affirm King's

conviction.

 King next argues that the district court only should have

held him responsible for the value of six paintings, and not for
the value of all the items taken during the burglary. We disagree.

Among other evidence, Schossler, the employee of the office

building where King worked, testified that she saw King

photographing "15 or so" paintings, two of which she positively

identified from Bartlett's photographs. We therefore conclude that

the district court did not err in including the value of all

fourteen paintings in the property value calculation.

 We find, however, that the district court erred in including

the stolen antiques in the property value calculation. The

government offered no evidence that King possessed the stolen

antiques. The antiques only could be included in the property

value calculation by finding that King committed the burglary. But

the district court's finding that King committed the burglary was

too speculative based on the evidence before it—that King was a

friend of Bartlett's son and had been in Bartlett's home at one

time—to support this conclusion.

Accordingly, we VACATE King's sentence and REMAND this case to

the district court for resentencing based only on the value of the

fourteen paintings.