United States v. Vigil
2011 U.S. App. LEXIS 9686
| 10th Cir. | 2011Background
- Vigil was stopped and found with extensive identity-theft materials, including counterfeit IDs and stolen victim data.
- He pled guilty to three counts: access device fraud, aggravated identity theft, and possession of stolen mail; PSR computed guidelines with Victim and ITB enhancements and restitution.
- At sentencing the district court applied the ITB enhancement and imposed a $10,000 fine; restitution was set at $15,642.91 but ultimately reduced to $2,717.19 per plea terms.
- Vigil argued the ITB enhancement required evidence of selling stolen property and being in the business of receiving and selling, which he claimed was absent.
- The government argued the enhancement could apply based on the totality of circumstances indicating a fencing operation; the court disagreed with Vigil on the sales requirement but applied the enhancement.
- On appeal, the Tenth Circuit reversed the ITB enhancement and the $10,000 fine, vacated the sentence, and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ITB enhancement applicability | GOV argues totality of circumstances shows 'in the business' fencing despite no explicit sale evidence. | Vigil contends ITB requires receiving and selling stolen property; he did not sell property. | ITB applies only to fences; requires receiving and selling stolen property; reversal of ITB. |
| Necessity of selling property for ITB | GOV contends sale may be inferred under totality-of-circumstances. | Vigil asserts there is no evidence he sold stolen property. | No evidence Vigil sold property; error to apply ITB without sale finding. |
| Harmlessness of ITB error | Even with ITB error, court would have imposed similar sentence within adjusted range. | Error could have affected the sentence; no basis to assume harmlessness. | Not harmless; vacate and remand for resentencing. |
| Imposition of a fine | Fine within guideline range; court’s discretion valid if ability to pay considered. | Court failed to consider ability to pay and impact on restitution; abuse of discretion. | Fine reversal; remand to determine ability to pay and adjust fine accordingly. |
Key Cases Cited
- United States v. Kimbrew, 406 F.3d 1149 (9th Cir. 2005) (limits ITB enhancement to fences; requires receiving and selling)
- United States v. Saunders, 318 F.3d 1257 (11th Cir. 2003) (confirms 'receiving and selling' property as predicate)
- United States v. McMinn, 103 F.3d 1119 (1st Cir. 1997) (fence concept; thief not in business of receiving/selling)
- United States v. Warshawsky, 20 F.3d 204 (6th Cir. 1994) (describes fence approach to ITB enhancement)
- United States v. St. Cyr, 977 F.2d 698 (1st Cir. 1992) (totality-of-circumstances test for 'in the business')
- United States v. Cottman, 142 F.3d 160 (3d Cir. 1998) (endorses totality approach within ITB context)