United States v. Sami Natour
2012 U.S. App. LEXIS 23093
7th Cir.2012Background
- Natour was convicted by jury of four counts under 18 U.S.C. § 2314 for transporting stolen phones in interstate commerce; district court attributed $292,000 loss and applied a 14-level increase under § 2B1.1(b)(4) for being in the business of receiving and selling stolen property, plus other loss calculations, yielding a guidelines range and a below-range sentence of 28 months.
- Sprint/Nextel phone adjustments were used to derive a loss figure; the government argued total phone value (MSRP) should be used, while Natour argued not all phones were stolen and some were legitimately obtained.
- At sentencing, the court ultimately based loss on MSRP for all phones charged in the four counts (excluding 55 phones from dismissed Count 4), and affirmed the enhancement under § 2B1.1(b)(4) given Natour’s extensive involvement in illegal phone procurement and resale.
- Natour argued the indictment was constructively amended by the trial evidence and instruction to include “taken by fraud,” but the court held the indictment broadly encompassed “stolen” and that evidence did not constructively amend the indictment.
- The panel affirmed the district court’s loss computation as a reasonable estimate under the Guidelines and noted that district courts should provide clearer records when explaining complex loss determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the indictment was constructively amended by trial proof and jury instruction | Natour; indictment narrowed to non-fraud theories | Natour; evidence broadened the theory to fraud | No constructive amendment; instructions within broad indictment |
| Whether the enhancement for being in the business of receiving and selling stolen property applies | Natour; legitimate business negates enhancement | Natour; conduct fits a fence-like pattern under guidelines | Applied; substantial illegal conduct supported by scope of activity |
| Whether loss calculation was reasonable and properly told for § 2B1.1(b)(1) | Gov't; use MSRP/larger loss; Natour; limited to 379 phones | Natour; use of 379 phones only; exclusion of others | Loss figure based on broad but reasonable estimate using MRSP; not clearly erroneous |
Key Cases Cited
- United States v. Turley, 352 U.S. 407 (U.S. 1957) (stolen broad interpretation; all felonious takings context)
- Lyda v. United States, 279 F.2d 461 (5th Cir. 1960) (broad reading of ‘stolen’ in § 2314; includes fraudulent takings)
- Sayan, 968 F.2d 55 (D.C. Cir. 1992) (indictment may be constructively broader but proof limited to fraud)
- Pigee, 197 F.3d 879 (7th Cir. 1999) (constructive amendment analysis; breadth of indictment considered)
- Wasz, 450 F.3d 720 (7th Cir. 2006) (loss valuation via fair market value; acceptable)