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UNITED STATES v. MOLONEY

November 12, 1996

UNITED STATES OF AMERICA, Plaintiff,
v.
PATRICK MOLONEY, Defendant.



The opinion of the court was delivered by: LARIMER

 INTRODUCTION

 A Brinks Armored Car Company money depot, located in Rochester, New York, was robbed on January 5, 1993. Approximately 7.4 million dollars were taken. Along with three others, defendant Patrick Moloney ("Moloney") was charged with crimes related to the robbery.

 The matter was tried before me and on November 28, 1994, Moloney was convicted of conspiracy to possess stolen money in violation of 18 U.S.C. § 371. He was sentenced by me to fifty-one months imprisonment, based in part on an upward enhancement authorized under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 2B1.1(b)(7)(B) *fn1" , which relates to crimes that affect financial institutions and from which a defendant derives more than one million dollars in gross receipts.

 Moloney appealed his conviction and sentence on numerous grounds, including the Section 2B1.1(b)(7)(B) enhancement. On appeal, the United States Court of Appeals for the Second Circuit affirmed Moloney's conviction and sentencing in all respects except one. See United States v. Millar, 79 F.3d 338 (2d Cir. 1996). The Court of Appeals remanded the case for a limited purpose, that is, to determine whether the sentencing enhancement under Section 2B1.1(b)(7)(B) was factually supported. As set forth herein, I find that the enhancement was proper and, thus, Moloney's sentence will not be changed.

 BACKGROUND2

 U.S.S.G. § 2B1.1(b)(7)(B) provides for a four-level sentencing increase if the offense "affected a financial institution and the defendant derived more than $ 1,000,000 in gross receipts from the offense". Application Note 11 to Guidelines § 2B1.1 states in part:

 At Moloney's sentencing, I concurred with the Presentence Investigation Report ("PSI") that the Section 2B1.1(b)(7)(B) enhancement was appropriate. The PSI stated that:

 
as both Samuel Millar and Patrick Moloney had access to the money seized from ... Apartment 10D ... and money was confiscated from their respective residence's, it is our assessment that both Samuel Millar and Patrick Moloney, whether jointly or independently, derived more that $ 1,000,000 in gross receipts from this offense. As such, a 4 level enhancement is appropriate in this case. PSI, January 31, 1995, at P 52.

 Adopting this recommendation, I noted that "the proof was clear concerning [Moloney's] control over that apartment. His suitcase was there stacked with money. His fingerprints were there. He was seen there several times... . I think the proof is he had access to and therefore derived 2.2 million dollars of proceeds." Transcript of Sentencing, February 27, 1995, at p. 30. Accordingly, I enhanced Moloney's sentence in accordance with U.S.S.G. § 2B1.1(b)(7)(B).

 The Court of Appeals found that these grounds were inadequate for imposing a Section 2B1.1(b)(7)(B) enhancement. Citing the requirements of Application Note 11, the Court of Appeals stated that "the district court did not find that Moloney individually derived more than $ 1,000,000 dollars in proceeds ...." 79 F.3d at 346. The Court of Appeals noted that several facts adduced at trial could support a finding that Moloney individually received in excess of one million dollars, "but the district court made no explicit finding in that regard." Id. Accordingly, the case was remanded "for factual findings to establish the amount of gross receipts Moloney derived individually -- not jointly -- from the offense and for resentencing, if appropriate, under the Guidelines." Id.

 Upon remand, I requested the Probation Office to prepare an addendum to the PSI, addressing the issue raised by the Court of Appeals. An Addendum was prepared which stated that "although ... there is no concrete evidence that the defendant did or did not derive more than $ 1,000,000, ... the Court, based on the factors set forth in this report, could reasonably conclude that the defendant did individually derive more than $ 1,000,000 from this offense." PSI Addendum at p. 3.

 I permitted the Government and Moloney to submit Statements With Respect to Sentencing Factors in response to the PSI Addendum. In addition to asserting that the trial evidence did not support an upward enhancement, Moloney requested a hearing ...


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