USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-1900
UNITED STATES,
Appellee,
v.
NELSON CRUZ-SANTIAGO,
Defendant, Appellant.
__________
No. 92-1917
UNITED STATES,
Appellee,
v.
EDGAR ARCE-RAMOS,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge
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Coffin, Senior Circuit Judge,
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and Torruella, Circuit Judge.
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____________________

Rachel Brill with whom Norberto Colon, By Appointment of

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______________
Court, was on joint brief for appellants.
Edwin O. Vazquez, Assistant United States Attorney, with w
_________________
Charles E. Fitzwilliam, United States Attorney, and Jose A. Quil
______________________
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Espinosa, Senior Litigation Counsel, Criminal Division, were on br
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for appellee.
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December 22, 1993
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BREYER, Chief Judge.

____________

Appellants

Arce Ramos

and

Cruz Santiago, convicted bank robbers, raise one question in

respect to

their sentencing.

court should not

for sentencing

They say

have counted, as a
purposes,

the

value

that the sentencing

robbery-related "loss"
of a

car,

Nissan

Sentra, that the robbers seized at gunpoint outside the bank

and drove from
car.

the scene of

the crime to a

second getaway

We think the district court was correct to include the

value of the

car in calculating the loss,

and we therefore

affirm.
The

appellants concede

Ramos, along with

$6,160,

its

two other persons,

shot the assistant

saw a Nissan

point.

out
A

of the
private

into a yellow Volkswagen,

facts.

entered a bank,

manager, ran outside

followed the bank robbers, saw

appellant

basic

Sentra that happened to be

innocent driver

rendezvous

the

Arce
took

the bank,

passing by, forced

car, and
security

drove off
guard,

who

to a
had

them park the Sentra and get

where two confederates (including

Cruz Santiago) were waiting.

off in the Volkswagen, in

All five then drove

which the police later found, and

arrested, them.
The
guideline, the

sentencing

court

noted

robbery

guideline,

that

determines

the

relevant

sentence

-22

partly

on

the

basis

of

monetary

loss

table,

which

instructs the

court to increase

level" if the

loss was more than $10,000 but

$50,000.

U.S.S.G.

the offense level

2B3.1(b)(6)(B).

one level because it added

The

by "one

not more than

court added that

the Sentra's $4,000 value to the

$6,160 taken in the robbery, yielding a total "loss" of just

over $10,000.
to have
and,
have)

The appellants argue that the court ought not

included the

they say,

Sentra's value

the court

in this

would have

calculation;

(though it

need not

imposed a lesser sentence had the final offense level

been lower by
would have

one.

Because the

picked the

same

court did not say

sentence from

that it

the lower

(but

overlapping) sentencing range, we assume that the difference

in calculation would have made a difference to the sentence.
And,

we

proceed

United States
_____________

v.

to consider
Ortiz, 966
_____

1992), cert. denied, 113

_____________

appellants'
F.2d

S. Ct.

argument.

707, 717-18
1005

See
___

(1st

(1993); cf.
___

Cir.
United
______

States v. Concemi, 957 F.2d 942, 952-53 (1st Cir. 1992).

______
_______
The
note that the

appellants' argument is

a simple one.

robbery guideline Commentary tells

They

the court

that "[v]aluation of loss is discussed in the Commentary" to

the

guideline

Forms of

entitled

Theft."

They

"Larceny, Embezzlement
concede that this
-33

and

Other

latter guideline

defines "loss" as
U.S.S.G.

including "the value of

2B1.1, comment.

(n.2) (emphasis

they concede that they took the Sentra.

____
the court must read the
meaning,

derived

"larceny,"
deprive."

the

"taken

common
with

they

got into

And,

But, in their view,

law

intent

definition
permanently

And, they say they did not intend to

owner of his Sentra permanently.

___________
before

added).

word "taken" as embodying a special

from

namely,

property taken."
_____

the

of
to

deprive its

(After all, they parked it

yellow Volkswagen.)

For this

reason, they conclude, the "loss" was $6,160, not $10,160.

We

disagree with appellants.

their own reasoning,

For one

the facts offer sufficient

thing, on
support of

the district court's apparently implicit conclusion that the

Sentra's
"larceny."

taking

met

most

criminal

law

definitions

of

Although there is some dispute among authorities

whether common law larceny requires an intent permanently to

deprive an owner of his property,

see S. Rep. No. 307, 97th

___

Cong., 1st Sess.

that

at 714 (1981),

"if one takes

recklessly and

it has long been

another's property intending

then abandon it,

the case
to use it

the obstacles to

its safe

return are such that the taker possesses the required intent
to

steal."

Wayne R.

Substantive Criminal Law

________________________

LaFave

& Austin

W.

Scott, Jr.,

8.5, at 360-61 (1986).

-44

Some

states

say

that

defendant

who

is

indifferent or reckless in respect to an owner's recovery of

property is "willing"
permanently,
appropriately

and,

S.E.2d 252,

that

owner lose his

reason,

"the

property

wrongdoer

may

be held to entertain specific intent that the

deprivation to the
321 A.2d 352,

for

to have the

owner be permanent."

358 (Me. 1974);

256-57 (N.C. 1983)

State v.
_____

see also State v.

________ _____

Gordon,
______
Webb, 308
____

(defendant's actions

would

leave owner's recovery

"to mere chance and

thus constitute

such

'reckless exposure to loss' that it is consistent only

with

an intent

permanently

to deprive

the

owner of

his

property" (quoting State v. Smith, 150 S.E.2d 194, 200 (N.C.

_____
_____
1966)).
The criminal codes in other states
(or

theft)

to include

define "deprive" as
way that makes

an

"intent to

it unlikely that the owner

and then

31.01(3)(C);

in a

will recover it.

53a-118(a)(3); Mont. Code Ann.

45-2-101(19)(d); N.Y. Penal

Ann.

deprive,"

including disposition of property

See, e.g., Conn. Gen. Stat.

___ ____

Code

define larceny

Law

see also
________

155.00[3];

Tex. Penal

Model Penal Code

__________________

223.0(1).
Thus, courts often

find the requisite "larcenous"

intent where the evidence shows no more than the abandonment

-55

of

property

under

circumstances

recovery unlikely.
783,

car); Brown
_____

defendant

the

Ct. 1976) (factfinder

likely when
v. State,
_____

1991) (jury may

make

owner's

See, e.g., State v. Piscattano, 352 A.2d

___ ____ _____
__________

785 (Conn. Super.

recovery not

that

car left on

street with

keys in

570 (Tex.

Ct. App.

804 S.W.2d 566,

find "intent" permanently to

parked and abandoned

may conclude

deprive where

vehicle in vacant

lot with

windows down); see also State v. Ward, 10 P. 133 (Nev. 1886)

________ _____
____
(factfinder may find larceny when defendant abandoned horses
12 miles from home, though they walked back to their barn).
The robbers here, at the
Nissan,

subjected it to

significant, known risks

owner would not recover it.

out,

the robbers

might have

by bullets" shot

abandoned
bank.

the car,

"had an

To

intending)

take a
that it

destruction and

The robbers

street, some distance

unlawfully,

be subject

to

disregard in

non-recovery that

-6-

a high

or the car might have "been

theft would seem

sufficient conscious
eventual

car

accident" in

by pursuing police.

on the

that the

As the sentencing court pointed

speed chase, "crashed the car,"

riddled

time they first took the

knowing (and
these risks

to amount to
respect to

trier

from the

of

fact

thereby

of further
acting with
the risk
might

of
find

traditional (larcenous)

theft.

See,
___

e.g., Piscattano, 352

____ __________

A.2d at 785.
Regardless,
Commentary's

word

the

"taken"

Guidelines
to

not

circumstances

"permanent" deprivation of property.

_________
to an entire

do

limit

the

involving

The Commentary relates

guideline, the title of which

makes clear its

application, not only to larceny, but also to "embezzlement"

and

to

"other

forms of

theft."

Embezzlement

involve an intent to deprive permanently.

___________
States
______

v.

(intent

Anderson, 850
________
to

deprive

F.2d

permanently

embezzlement); United States v.

_____________
1143 (6th

Cir. 1985)

(1986); United

563,
is

565
not

need not

See, e.g., United

___ ____ ______
(9th Cir.
an

1988)

element

of

Shackleford, 777 F.2d 1141,

___________

(same), cert. denied, 476

_____________

States v. Waronek,

582 F.2d 1158,

U.S. 1119
1161 n.4

______________
(7th

Cir.

1978)

deprivation"
forms

Rico, like that

22,

(same).

Nor

requirement found in

of theft,"

larceny

_______

as "joyriding,"

is

there

respect to such
which the law

of several states, criminalizes

and without distinction.

"permanent
_________

See P.R.
___

"other
of Puerto

along with

Laws Ann. tit.

4272 (theft statute similarly prohibits permanent and

temporary

deprivations); Ga. Code

S.D. Codified Laws Ann.

Ann.

16-8-1(1) (same);

22-1-2(12) (same); Wash. Rev. Code

9A.56.020(1) (same); cf. Brown v. Ohio, 432 U.S. 161, 163___ _____
____
-77

64 (1977) (discussing state law that regarded joyriding as a

lesser

included offense of

larceny); State v.
_____

Reeves, 342
______

So. 2d 605, 608 (La. 1977) (same); Commonwealth v. Giannino,

____________
________

358 N.E.2d 1008, 1010 (Mass.

art.

223,

vehicles

1977) (same); Model Penal Code

________________

223.9 (discussing
in section on

also United States v.

____ ______________

"Theft and Related

Deggs, 632 F.2d
_____

1980) (discussing 18 U.S.C.

guideline,
to

unauthorized

use of

Offenses"); see
___

829, 831

(9th Cir.

1707, referred to by the theft

as a "joyriding" statute that requires no intent

deprive permanently); United States v. Henry,

______________
_____

283, 284-85 (3d Cir.

theft

motor

statute

447 F.2d

1971) (discussing 18 U.S.C.

that

requires

permanently); S. Rep. No. 307,

no

intent

661 as a

to

deprive

97th Cong., 1st Sess. at 714

(1981).
We

recognize

that

the

Guidelines'

similar

treatment of permanent

and temporary takings means

offender's

will

punishment

"taken" car returned

no doubt

that

reflect the

to its owner undamaged.

the Guidelines

intend

specifically provide that "loss is

even if

value

this result.

The reason

with punishment,

consequently focus on
-88

They

the value of the vehicle

Guidelines here are concerned

restitution; and, they

of a

But, we have

the vehicle is recovered immediately."

is that the
not

full

that an

the fact

that the offender's

loss

-- a

behavior created a significant

risk that

existed whether

owner eventually suffered harm.

Brach, 942
_____

F.2d 141, 143

or not

U.S.

872

903 F.2d

(2d Cir. 1991); United States v.

______________

91, 105 (2d

(1990).

We

unreasonable in keying
And, in this

case, both

the property

See, e.g., United States v.

___ ____ _____________

Cockerham, 919 F.2d 286, 289 (5th Cir. 1990);

_________
v. Parker,
______

risk of
____

cannot

United States
_____________

Cir.), cert. denied, 498

_____________
say

the

Guidelines

punishment to risk of
temporary loss

and a

are

serious loss.
significant

risk of serious (permanent) loss are present.

For these
court is
Affirmed.
________

reasons, the

judgment of

the district

-99