Hardy

William Bernard Hardy (“Hardy”) challenges his conviction and sentence for knowing possession of property stolen from interstate commerce and conspiracy to possess such property. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 . We affirm Hardy’s conviction, vacate his sentence and remand for resentencing.

I

Hardy and a partner contacted a broker in an attempt to sell several thousand digital video disks (“DVDs”) of two films, one of which was not yet available to the public. Upon learning that the DVDs were stolen goods, the broker agreed to cooperate with authorities and introduced Hardy to an undercover agent masquerading as a potential buyer. After Hardy and the agent worked out terms for a sale, Hardy showed up at the arranged rendezvous with the stolen DVDs and was arrested. Hardy and his partner were jointly tried for knowing possession of property stolen from an interstate shipment of goods, 18 U.S.C. § 659 , and conspiracy to knowingly possess such goods. 18 U.S.C. § 371 .

The undercover agent testified that Hardy was called away by a page while the two were negotiating a price for the DVDs. The agent further testified that Hardy explained that…