Back in December, I noted that the Transy Four had appealed their sentences before the Sixth Circuit Court of Appeals. Today that court released its decision [PDF], as Travis first reported. Turns out the boys should not have held out their hands for more.
The sixteen-page decision, which consolidates all four thieves' appeals, finds "no merit to any of defendants' arguments," (those are outlined here and in today's opinion) but agreed with the government's counter-appeal that the trial court had not taken into sufficient account the books which the Four had intended to steal but dropped on the way out of the library.
"The government contends that the district court erred by omitting from its loss computation the two volumes of Birds of North America and the two volumes of Quadrupeds that Lipka and Borsuk dropped in the stairwell when they were assailed by Ms. Brown [the library director]. From this starting point, the value of the loss - even under the defendants' valuation estimates - would have been over $1,000,000 rather than $735,000; the sentence enhancement would have been 16 rather than 14; and the advisory guideline range would have been 108 to 135 months rather than 87 to 108 months [the Four received 87-month sentences]."
The decision goes on to say "Based on our reading of the cases and the guidelines, we hold that a robber 'takes' an object ... when the robber exercises dominion and control over that object, such that the robber has completed the acts necessary to seize that object." They conclude that the Four thus "took" more of the rare books than the trial court found, and remand the case to the district court "to reconsider its sentence in light of this opinion."
After initial concern, Travis concludes that the Sixth Circuit "got it right." I concur. He adds a link to his earlier discussion "At what point is an item 'stolen'?" There, he takes the precise position as the Sixth Circuit in today's opinion.
Now we'll keep an eye on the district court to see how the sentences change in light of this decision.
[Update: Travis offers part one of a more detailed legal analysis of the decision. More tomorrow.]
