UNITED STATES of America, Plaintiff-Appellee, v. Hector ZUNIGA, Defendant-Appellant

Hector Zuniga appeals a 30 month prison sentence imposed following his guflty plea to conspiracy to possess stolen goods from interstate shipment in violation of 18 U.S.C. § 371 . He charges that the district court erred when it applied section 2B1.(b)(5)(B) of the Sentencing Guidelines to increase his offense level for being “in the business of receiving and selling stolen property.”

FACTUAL BACKGROUND

Pursuant to an ongoing investigation of thefts of goods from rail yards and trucking companies around the Los Angeles area, the FBI set up an undercover warehouse available to persons trafficking in stolen goods. The warehouse was equipped "with audio and video recording devices. An undercover FBI special agent (“UCA”) ostensibly ran the warehouse.

On April 19, 1992, the UCA received a telephone call from a man named “Juan”. Juan told the UCA that he needed the warehouse to store a stolen load of merchandise and he gave Zuniga’s pager number to the UCA. Later that same day, Zuniga paged the UCA. When the UCA returned the page, Zuniga asked the UCA to store a load of goods he was planning to steal.

On the same day, Zuniga and codefendant Fernando Santos Ramirez stole a tractor…