No possibility of conviction for receiving stolen property where defendant convicted of theft

Laws criminalizing receiving stolen property target “fences” — people who are in the business of buying and selling stolen goods, which encourages others to steal. Thieves are not engaged in “receiving stolen property” when they are the original takers of the stolen property.

Under the common-law tradition, stealing property from another normally does not equate with “receiving” property from its rightful owner. “[A] thief cannot be charged with committing two offenses — that is, stealing and receiving the goods he has stolen[,] … for the commonsensical, if not obvious, reason that a man who takes property does not at the same time give himself the property he has taken.” “Logic … instructs us that there is an inherent inconsistency in treating a taking as a receipt.” Therefore, statutes which criminalize “receiving” are generally not thought to target the thief himself, but the wrongdoer who knowingly acquires the loot from or through the thief. Thus, a fair reading of the plain language employed in section 2B1.1(b)(4)(B) strongly suggests that a defendant engaged in selling only the property he is responsible for stealing has not “received” it in the sense contemplated by the Sentencing Commission.

United States v. McMinn, 103 F. 3d 216 (1st Cir. 1997) (cleaned up) (citations omitted).

[N]early every circuit that has addressed the meaning of this enhancement has agreed “that a thief who sells goods that he himself has stolen is not in the business of receiving and selling stolen property.” see also United States v. McMinn, 103 F.3d 216, 219-21 (1st Cir. 1997) (guideline not meant to apply to defendant who sells only property he has stolen); United States v. Sutton, 77 F.3d 91, 94 (5th Cir.1996) (enhancement “a punishment for fences, people who buy and sell stolen goods, thereby encouraging others to steal, as opposed to thieves who merely sell the goods which they have stolen”); United States v. Braslawsky, 913 F.2d 466, 468 (7th Cir.1990) (“a person in the business of receiving and selling stolen property is a professional fence and not a person who sells property that he has already stolen”). The courts that have engaged in an in-depth analysis of this provision have generally based their views on three factors: (1) the plain language of the enhancement, which requires both “receiving” and “selling” stolen property; (2) the historical evolution of the guidelines in this area, which have traditionally punished fencing differently than mere theft; and (3) the underlying purpose of the enhancement, i.e., to increase the penalty because the ready availability of a fence to dispose of goods may promote theft crimes.

US v. Kimbrew, 406 F. 3d 1149 (9th Cir. 2005) (footnotes and some citations omitted).

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