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Appellants
Arce Ramos
and
their sentencing.
They say
have counted, as a
purposes,
the
value
robbery-related "loss"
of a
car,
Nissan
the scene of
the crime to a
second getaway
value of the
and we therefore
affirm.
The
appellants concede
its
saw a Nissan
point.
out
A
of the
private
facts.
entered a bank,
appellant
basic
innocent driver
rendezvous
the
Arce
took
the bank,
car, and
security
drove off
guard,
who
to a
had
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
$50,000.
U.S.S.G.
2B3.1(b)(6)(B).
The
by "one
included the
they say,
Sentra's value
the court
in this
would have
calculation;
(though it
need not
been lower by
would have
one.
Because the
picked the
same
sentence from
that it
the lower
(but
we
proceed
United States
_____________
v.
to consider
Ortiz, 966
_____
appellants'
F.2d
S. Ct.
argument.
707, 717-18
1005
See
___
(1st
(1993); cf.
___
Cir.
United
______
appellants' argument is
a simple one.
They
the court
guideline
Forms of
entitled
Theft."
They
"Larceny, Embezzlement
concede that this
-33
and
Other
latter guideline
defines "loss" as
U.S.S.G.
2B1.1, comment.
(n.2) (emphasis
derived
"larceny,"
deprive."
the
"taken
common
with
they
got into
And,
law
intent
definition
permanently
added).
from
namely,
property taken."
_____
the
of
to
deprive its
yellow Volkswagen.)
For this
For one
thing, on
support of
taking
met
most
criminal
law
definitions
of
at 714 (1981),
recklessly and
the case
to use it
the obstacles to
its safe
return are such that the taker possesses the required intent
to
steal."
Wayne R.
LaFave
& Austin
W.
Scott, Jr.,
-44
Some
states
say
that
defendant
who
is
and,
S.E.2d 252,
that
reason,
"the
property
wrongdoer
may
deprivation to the
321 A.2d 352,
for
to have the
owner be permanent."
State v.
_____
Gordon,
______
Webb, 308
____
(defendant's actions
would
thus constitute
such
with
an intent
permanently
to deprive
the
owner of
his
theft)
to include
define "deprive" as
way that makes
an
"intent to
and then
31.01(3)(C);
in a
deprive,"
Code
define larceny
Law
see also
________
155.00[3];
Tex. Penal
223.0(1).
Thus, courts often
of
property
under
circumstances
recovery unlikely.
783,
car); Brown
_____
defendant
the
likely when
v. State,
_____
make
owner's
recovery not
that
car left on
street with
keys in
570 (Tex.
Ct. App.
may conclude
deprive where
vehicle in vacant
lot with
subjected it to
the robbers
might have
by bullets" shot
abandoned
bank.
the car,
"had an
To
intending)
take a
that it
destruction and
The robbers
unlawfully,
be subject
to
disregard in
non-recovery that
-6-
a high
sufficient conscious
eventual
car
accident" in
by pursuing police.
on the
that 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,
___
A.2d at 785.
Regardless,
Commentary's
word
the
"taken"
Guidelines
to
not
circumstances
do
limit
the
involving
to
"other
forms of
theft."
Embezzlement
v.
(intent
Anderson, 850
________
to
deprive
F.2d
permanently
Cir. 1985)
(1986); United
563,
is
565
not
need not
1988)
element
of
States v. Waronek,
U.S. 1119
1161 n.4
______________
(7th
Cir.
1978)
deprivation"
forms
22,
(same).
Nor
requirement found in
of theft,"
larceny
_______
as "joyriding,"
is
there
respect to such
which the law
"permanent
_________
See P.R.
___
"other
of Puerto
along with
temporary
Ann.
16-8-1(1) (same);
9A.56.020(1) (same); cf. Brown v. Ohio, 432 U.S. 161, 163___ _____
____
-77
included offense of
larceny); State v.
_____
Reeves, 342
______
223,
vehicles
223.9 (discussing
in section on
unauthorized
use of
Offenses"); see
___
829, 831
(9th Cir.
motor
statute
447 F.2d
that
requires
no
intent
661 as a
to
deprive
(1981).
We
recognize
that
the
Guidelines'
similar
treatment of permanent
offender's
will
punishment
that
reflect the
the Guidelines
intend
value
this result.
The reason
with punishment,
consequently focus on
-88
They
of a
But, we have
is that the
not
full
that an
the fact
-- a
risk that
existed whether
or not
U.S.
872
903 F.2d
(1990).
We
unreasonable in keying
And, in this
case, both
the property
risk of
____
cannot
United States
_____________
the
Guidelines
punishment to risk of
temporary loss
and a
are
serious loss.
significant
reasons, the
judgment of
the district
-99