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UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
______________
No. 91-4542
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES GLENN THOMAS,
Defendant-Appellant.
__________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
__________________________________________________
(September 16, 1992)
Before VAN GRAAFEILAND,* KING and EMILIO M. GARZA, Circuit
Judges.
EMILIO M. GARZA, Circuit Judge:
Defendant, James Glenn Thomas, was convicted of fourteen
counts of illegal activities involving the alteration of motor
vehicle identification numbers, in violation of 18 U.S.C. 壯 511-
12, 2321-22. The district court sentenced Thomas to 51 months on
each count. Thomas appeals his conviction and sentence on the
grounds that the district court improperly admitted illegally
seized evidence and erred in sentencing him. We affirm.
* Senior Circuit Judge of the Second Circuit, sitting by designation.

I
As part of the Texas Department of Public Safety's ("DPS")
pilot program of documenting salvage vehicles not economically
feasible to rebuild,1 investigator Cliff Babbitt, a DPS agent,
tracked a salvage vehicle to Thomas's auto salvage business.
Babbitt conducted an inventory inspection, pursuant to Tex. Rev.
Civ. Stat. Ann. art. 6687-2(e) (West 1992).2 During this
inspection, Babbitt seized a vehicle and VIN plates, which
provided him with the necessary information to secure a search
warrant for Thomas's residence. Acting pursuant to the search
warrant, Babbitt seized VIN plates found in Thomas's briefcase at
his home.
Thomas was convicted of fourteen counts of trafficking in
motor vehicles with falsified identification numbers, see 18
1 The purpose of the program is to uncover illegal "salvage switch" or
"vehicle identification number ("VIN") switch" operations. Each VIN is a
unique number that identifies only one vehicle. Under a salvage or VIN switch
scheme, the VIN from the salvage is switched to a stolen car, which is then
sold under the guise of rebuilt salvage. Record on Appeal, vol. 3, at 242,
252-53.
2 Article 6687-2(e) provides:
An automobile salvage dealer shall keep all records
required to be kept by this article for one year after
the date of sale or disposal of the item, and he shall
allow an inspection of the records by a peace officer
at any reasonable time. A peace officer may inspect
the inventory on the premises of the automobile salvage
dealer at any reasonable time in order to verify,
check, or audit the records. An automobile salvage
dealer or an employee of the dealer shall allow and
shall not interfere with a full and complete inspection
by a peace officer of the inventory, premises, and
inventory records of the dealer.
-2-

U.S.C. 壯 2321-22, and of altering and falsifying vehicle
identification numbers. See 18 U.S.C. 壯 511-12. The district
court sentenced Thomas to 51 months on each count. Thomas
challenges his conviction and sentence, contending that: (a) the
warrantless search of his business did not fall under an
exception to the warrant requirement; (b) the search warrant for
his residence was not supported by probable cause; and (c) the
trial judge erred in calculating his sentence.
II
A
Administrative searches of salvage yards are generally held to
be exceptions to the warrant requirement of the Fourth Amendment
because of "the important state interest in administrative schemes
designed to regulate the vehicle-dismantling or automobile-junkyard
industry." New York v. Burger, 482 U.S. 691, 698, 107 S. Ct. 2636,
2641-42, 96 L. Ed. 2d 601 (1987). One of the requirements of a
valid administrative scheme is the "certainty and regularity of its
application." 482 U.S. at 703, 107 S. Ct. at 2644 (quoting Donovan
v. Dewey, 452 U.S. 594, 603, 101 S. Ct. 2534, 2540, 69 L. Ed. 2d
262 (1981)). Thomas does not question the validity of the Texas
scheme authorizing the search of his business. See Tex. Rev. Civ.
Stat. Ann. art. 6687-2(e). Instead, he argues that the particular
administrative search of his salvage business violated the Fourth
Amendment because it was not part of a scheme of periodic and
frequent inspections, but rather was targeted at gathering
information concerning specific vehicles. This argument is
-3-

meritless.
Administrative searches conducted pursuant to valid statutory
schemes do not violate the Constitution simply because of the
existence of a specific suspicion of wrongdoing. In United States
v. Villamonte-Marquez, 462 U.S. 579, 103 S. Ct. 2573, 77 L. Ed. 2d
22 (1983), the defendants argued that customs officials could not
rely on a statute authorizing administrative searches of vessels,
because the officials were following an informant's tip that a
vessel was carrying marijuana. The Court rejected this argument
because it saw "little logic in sanctioning such examinations of
ordinary, unsuspect vessels but forbidding them in the case of
suspected smugglers." Villamonte-Marquez, 462 U.S. at 584 n.3, 103
S. Ct. at 2577 n.3 (quoting United States v. Arra, 630 F.2d 836,
846 (1st Cir. 1980)); see United States v. Nechy, 827 F.2d 1161,
1167 (7th Cir. 1987) ("[I]t does rather turn the Fourth Amendment
on its head to complain about not the dearth but the plethora of
grounds" of suspicion.).
Thomas also claims that Babbitt could not legally seize the
vehicle and VIN plates from his business because Babbitt did not
know at the time of the search that the vehicle was stolen.
Seizure is appropriate where the government agent is lawfully on a
defendant's property, and has probable cause to associate goods
with criminal activity. See Texas v. Brown, 460 U.S. 730, 739, 103
S. Ct. 1535, 1542, 75 L. Ed. 2d 502 (1983) ("[O]ur decisions have
come to reflect the rule that if, while lawfully engaged in an
activity in a particular place, police officers perceive a
-4-

suspicious object, they may seize it immediately."). Babbitt
observed the tell-tale signs of a salvage switch in progress when
he conducted his inventory inspection.3 This provided Babbitt with
probable cause to associate the seized goods with criminal
activity. Because Babbitt was lawfully on defendant's property for
an administrative inspection, the seizure of the vehicle and VIN
plates was valid.
B
Thomas further contends that the affidavit4 in support of the
3 For example, Babbitt observed on several vehicles: (1)
vice marks indicating forced entry; (2) VIN plates that had been
burned and repainted; and (3) engine and transmission numbers
that had been ground and restamped. See Record on Appeal, vol.
3, at 289-345.
4 The affidavit reads, in relevant part:
Affiant is currently involved in an investigation of an
organized and sophisticated theft ring. This theft
ring involves the theft of and the alteration of motor
vehicles. In this investigation Affiant has good
reason to believe and does believe that James Glenn
Thomas hereinafter styled defendant, is altering stolen
motor vehicles to conceal the identity. These
alterations include the grinding and re-stamping of
certain confidential vehicle identification numbers.
The dies used in re-stamping of certain confidential
vehicle identification numbers are used in furtherance
of the offense of theft and therefore, these dies are
criminal instruments . . . . Affiant has good reason to
believe and does believe that these criminal
instruments are being concealed by the defendant at his
shop or residence . . . . Affiant's belief is based on
the fact that numerous vehicles have been seized that
were sold by the defendant. These vehicles were
altered and most have been identified as stolen. These
alterations were extensive and required numerous tools
and specialized equipment leading Affiant to believe
the work to be done in the defendant's shop. . . .
Therefore, the dies and other criminal instruments,
used in furtherance of the offense of theft; are
believed to be concealed at the residence as well as
-5-

search warrant for his home lacked probable cause because: (a) the
affidavit did not expressly include a statement of timeliness; and
(b) the affidavit did not establish a nexus between defendant's
home and the instrumentalities of the offense. In considering
these issues, "this court is not limited to the `clearly erroneous'
standard and may make an independent review of the sufficiency of
an affidavit." Hale v. Fish, 899 F.2d 390, 398-99 (5th Cir. 1990).
The "totality of the circumstances" test governs whether a search
warrant is supported by probable cause. See Illinois v. Gates, 462
U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Under Gates,
"the duty of a reviewing court is simply to ensure that the
magistrate had a `substantial basis for . . . conclud[ing]' that
probable cause existed." 462 U.S. at 238-39, 103 S. Ct. at 2332
(quoting Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725,
736, 4 L. Ed. 2d 697 (1960)).
While Babbitt's affidavit failed to mention any dates
connecting the suspected crime to the defendant, we do not find
this oversight to be fatal. Babbitt's affidavit included the
following averments: (a) that he was "currently involved in an
investigation" of an organized theft ring involving the alteration
of VINs; (b) that he believed that Thomas was "altering stolen
motor vehicles" to conceal their identities; (c) that he believed
that "criminal instruments [used in furthering these crimes] are
the shop. Affiant request [sic] the issuance of this
search warrant in accordance of [sic] CCP Article
18.02.
Government Exhibit Z, included in Brief for Thomas, Appendix A.
-6-

being concealed by the defendant at his shop or residence"; (d)
that these criminal instruments "are believed to be concealed at
the residence as well as the shop;" and (e) that his belief "is
based on the fact that numerous vehicles have been seized that were
sold by defendant." Brief for Thomas, Appendix A. All of these
statements are in the present tense, and describe ongoing criminal
activity.
Thomas does not allege that the facts recited in the affidavit
were stale, nor is there any indication that the information in the
affidavit was untimely. Moreover, the affidavit does not suggest
that Babbitt purposely avoided using dates in order to use stale
information to his advantage. See Brief for Thomas, Appendix A.
Indeed, the most that can be said is that Babbitt simply forgot to
put specific dates in his affidavit. Based on these circumstances,
we cannot say that the issuing magistrate did not have a
substantial basis for finding that probable cause existed. See
United States v. Smith, 783 F.2d 648, 652 (6th Cir. 1986) (holding
that where the affiant stated that he had reason to believe
marijuana "is now" on defendant's premises, and there was no
indication that the affidavit contained stale information, that the
affidavit established probable cause). Thus, we find that
Babbitt's affidavit, though far from perfect, met its probable
cause requirement.5
5 We recognize those cases holding that an affidavit's use
of the present tense should not be approved as a sufficient means
of conveying timeliness. See, e.g., Dixon v. State of Florida,
403 F.2d 49, 51 (5th Cir. 1968); Rosencranz v. United States, 356
F.2d 310, 315-18 (1st Cir. 1966). However, we have not found any
-7-

Thomas also contends that the affidavit failed to establish a
nexus between the criminal activity and defendant's home. This
nexus "may be established `through normal inferences as to where
the articles sought would be located.'" United States v. Pace, 955
F.2d 270, 277 (5th Cir. 1992) (quoting United States v. Freeman,
685 F.2d 942, 949 (5th Cir. 1982)). During the inspection of
Thomas's salvage business, Babbitt found and seized VIN plates and
one vehicle, but did not find the dies used to restamp VINs. Since
these criminal instruments were not found at Thomas's business, the
expectation of finding the dies at Thomas's home was a reasonable
inference supporting a determination of probable cause. See Pace,
955 F.2d at 277 ("The expectation of finding evidence of the crime
at the suspect's home, given that such evidence was not found at
the scene of the illegal activity, was a reasonable inference which
supported the magistrate's determination of probable cause to
search the residence."). Therefore, we find that Babbitt's
affidavit did establish a nexus between the criminal activity and
Thomas's home.
Thomas further asserts that the seizure of VIN plates from a
briefcase in his home exceeded the scope of the warrant. He
specifically contends that since the affidavit did not explicitly
describe these plates as items to be seized, they should have been
considered inadmissible at trial. While the affidavit does not
cases after Gates, holding that an affidavit automatically fails
to meet its probable cause requirement because of the absence of
dates. Thus, under the "totality of the circumstances" we
conclude that Babbitt's affidavit established probable cause to
issue the warrant.
-8-

explicitly mention VIN plates, the warrant authorizes the seizure
of "dies and other criminal instruments, used in furtherance of the
offense." Brief for Thomas, Appendix A (emphasis added). The VIN
plates found in defendant's home were clearly instruments used in
furthering defendant's scheme of altering VINs. Further, the dies
which the DPS were searching for were no longer than two-and-a-half
inches long and approximately a quarter-inch square. See Record on
Appeal, vol. 3, at 330-31 (direct examination of Cliff Babbitt).
Because it was reasonable to believe that Thomas's briefcase could
contain the dies, the search of the briefcase did not exceed the
scope of the warrant. See United States v. Giwa, 831 F.2d 538,
543-44 (5th Cir. 1987) ("`[A]ny container situated within
residential premises which is the subject of a validly-issued
warrant may be searched if it is reasonable to believe that the
container could conceal items of the kind portrayed in the
warrant.'") (quoting United States v. Gray, 814 F.2d 49, 51 (1st
Cir. 1987)).
C
The remaining issues before this court involve Thomas's
sentence. Thomas argues that the district court erred in
calculating his criminal history score. In particular, he asserts
that his previous sentence for theft in state court should not have
been considered a "prior sentence" for purposes of applying
U.S.S.G. 壯 4A1.1 and 4A1.2.6 We review a district court's
6 See United States Sentencing Commission, Guidelines Manual
(Nov. 1991).
-9-

application of the sentencing guidelines to the facts for clear
error. See United States v. Shano, 955 F.2d 291, 294 (5th Cir.),
cert. dismissed, 112 S. Ct. 1520 (1992).
Under U.S.S.G. � 4A1.1(a), a court may "add three points for
each prior sentence of imprisonment exceeding one year." The
guidelines define "prior sentence" as "any sentence previously
imposed . . . for conduct not part of the instant offense."
U.S.S.G. � 4A1.2(a)(1). Thomas argues that his state sentence for
theft was not a "prior sentence" because it involved conduct which
was part of his instant federal offense for altering VINs.
The interpretation of "conduct not part of the instant
offense" is a matter of first impression in this circuit. While
Thomas argues that the critical inquiry here should be whether the
prior and instant offense are related, other courts do not agree.
See United States v. Walling, 936 F.2d 469, 471 (10th Cir. 1991)
("The question of `related cases' referred to in � 4A1.2(a)(2),
applies to the relationship between prior sentences, not to the
relationship between prior sentences and the present offense.");
United States v. Garcia, 909 F.2d 389, 392 (9th Cir. 1990) ("There
is no indication that the commentary [defining `related cases'] was
intended to define the words `conduct not a part of the instant
offense' in sec. 4A1.2(a)(1)."). We believe the critical inquiry
is whether the prior conduct constitutes a "severable, distinct
offense" from the offense of conviction. United States v.
Blumberg, 961 F.2d 787, 792 (8th Cir. 1992); see United States v.
Beddow, 957 F.2d 1330, 1338 (6th Cir. 1992).
-10-

Thomas's argument rests solely on his assertion that some of
the vehicles involved in his state conviction for theft, were also
involved in his instant federal conviction for altering VINs. We
do not agree. Though some of the vehicles that were part of
Thomas's state indictments were involved in his investigation for
the instant federal offense, none of the vehicles were made part of
Thomas's indictment and conviction in the district court.7 Thus,
because Thomas's convictions for theft and altering VINs involve
distinct offenses with different elements, and the convictions for
each offense involve different vehicles, this court finds no error
in the district court's application of section 4A1.2(a)(1).
Thomas further maintains that the district court erred in
calculating his base offense level by considering loss, rather than
retail value, in applying and interpreting U.S.S.G. 壯 2B6.1 and
2F1.1. We review the district court's interpretation of the
sentencing guidelines de novo. See United States v. Singleton, 946
F.2d 23, 24 (5th Cir. 1991), cert. denied, 112 S. Ct. 1231 (1992).
This issue arises out of the difference between retail value
and loss, as used by the guidelines in calculating base offense
levels. According to section 2B6.1, a district court may increase
a defendant's offense level by the corresponding number of levels
from the table in section 2F1.1, if the retail value of the motor
vehicles exceeded $2,000. However, the table in section 2F1.1
provides that if "the loss exceeded $2,000, increase the offense
7 See Record on Appeal, vol. 6, at 16-17 (cross-examination
of Cliff Babbitt).
-11-

level" according to the amount of loss.
Thomas argues that the district court should have used retail
value, rather than loss, in applying section 2B6.1 to section
2F1.1. We do not agree. Section 2B6.1 of the guidelines clearly
directs a district court, upon finding that the retail value
exceeded $2,000, to use the amount of loss in applying the loss
table in section 2F1.1. Nowhere in sections 2B6.1 or 2F1.1, or
their Commentary, does it mention using only retail value in
applying the loss table in section 2F1.1. Therefore, we find no
error in the district court's consideration of loss in applying
section 2B6.1 to section 2F1.1.8
Thomas also argues that the district court erred in arriving
at an estimation of loss, by considering the incidental costs
incurred by insurance companies, victims, and innocent purchasers.
We review for clear error, as the issue before the court involves
the application of the guidelines to the facts. See Shano, 955
F.2d at 294.
The Commentary to section 2B1.1 defines loss as being the
market value of the property taken. However, only where
ascertaining market value is impractical, may a court measure loss
8 Our decision in United States v. Patterson, 962 F.2d 409
(5th Cir. 1992), is not inapposite. There, we upheld the
district court's use of retail value in applying section 2F1.1.
Id. at 413-14. However, in applying this section, loss
ordinarily is equated with retail value, unless the market value
is difficult to ascertain or inadequate to measure harm to the
victim. See U.S.S.G. � 2F1.1, comment. (n.7) (cross-referencing
to definition of loss in section 2B1.1).
-12-

in some other way.9 After reviewing the record, we find that the
retail value of the vehicles involved was neither difficult to
ascertain or inadequate to measure harm to the victim. Babbitt
testified, without objection, that the average cost for each
vehicle "would probably be somewhere in the neighborhood of
$20,000." See Record on Appeal, vol. 6, at 16 (cross-examination
of Cliff Babbitt). Both parties accept this $20,000 figure as a
reasonable approximation of the retail value of each vehicle. See
Brief for Thomas at 19-20; Brief for United States at 29. Since
retail value was a practical measure of loss, we find that the
district court clearly erred by considering incidental costs before
retail value.
The government, however, argues that because 30 cars were
involved at $20,000 each (30 x $20,000 = $600,000), Thomas's
argument is moot since his sentence was based on a finding that
total loss fell between $350,000 and $500,000. See Presentence
Report ("PSR") at 3; Record on Appeal, vol. 6, at 18. Accordingly,
the government contends that even if the district court erred in
estimating loss, defendant suffered no harm. We agree, and find a
remand unwarranted. See Williams v. United States, ___ U.S. ___,
9 The Commentary to section 2B1.1 defines loss as:
[T]he value of the property taken, damaged, or
destroyed. Ordinarily, when property is taken or
destroyed the loss is the fair market value of the
particular property at issue. Where the market value
is difficult to ascertain or inadequate to measure the
harm to the victim, the court may measure loss in some
other way, such as reasonable replacement cost to the
victim.
-13-

112 S. Ct. 1112, 1120-21, 117 L. Ed. 2d 341 (1992) ("[A] remand is
[in]appropriate . . . [where] the reviewing court concludes, on the
record as a whole, that the error was harmless.").
A district court must consider a defendant's relevant conduct
in calculating a base offense level.10 U.S.S.G. � 1B1.3. Babbitt
testified, without objection, that 30 vehicles were involved in
Thomas's VIN-switch scheme. See Record on Appeal, vol. 6, at 12
(direct examination of Cliff Babbitt). Thomas did not contest this
evidence during the presentence hearing. Id. Pursuant to section
1B1.3, we find that the district court properly considered these
vehicles as part of Thomas's relevant conduct, for the purpose of
calculating his base offense level. Addendum to PSR at 1A.
Babbitt also testified, without objection, that the retail value of
each of these vehicles was "somewhere in the neighborhood of
$20,000." Record on Appeal, vol. 6, at 16 (cross-examination of
Cliff Babbitt). This evidence is also uncontroverted. Thus, even
if the district court had used retail value rather than incidental
loss in applying section 2F1.1, the aggregate loss figure (30 x
$20,000 = $600,000) would have been greater than the loss figure
(between $350,000 and $500,000) actually used.11 Accordingly, no
10 A defendant's relevant conduct includes "all acts and
omissions committed or aided and abetted by the defendant, or for
which the defendant would be otherwise accountable, that occurred
during the commission of offense of conviction." U.S.S.G. �
1B1.3(a)(1). In addition, all harm that resulted from the acts
or omissions must be counted. U.S.S.G. � 1B1.3(a)(3).
11 The PSR states that only 24 vehicles were involved in
Thomas' VIN-switch scheme. Addendum to PSR at 1A. However, at
$20,000 per vehicle, the aggregate loss figure using retail value
would still be between $350,000 and $500,000 (24 x $20,000 =
-14-

remand is necessary. Williams, 112 S. Ct. at 1120-21.
III
For the foregoing reasons, we AFFIRM.
$480,000).
-15-