United States of America v.  Ned Steven Sydnor

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4271 
NED STEVEN SYDNOR,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-00-548-AW)
Submitted: May 23, 2001
Decided: June 4, 2001
Before WILKINSON, Chief Judge, and WILLIAMS and
TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Russell P. Butler, DITRANI & BUTLER, L.L.C., Camp Springs,
Maryland, for Appellant. Stephen M. Schenning, United States Attor-
ney, Hollis Raphael Weisman, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ned Sydnor appeals his conviction for two counts of violating 18
U.S.C.A. § 661 (West 2000) based on his theft of the personal prop-
erty of two employees of the National Institute of Health. The prop-
erty was stolen from two separate cubicles in the same office on the
NIH campus. Sydnor was convicted before a magistrate judge based
on his guilty plea; he appealed to the district court, which upheld his
convictions and two-year sentence under 18 U.S.C.A. § 4244 (West
2000). Sydnor timely appealed to this Court.1 Finding no error, we
affirm.
Sydnor contends that his indictment was multiplicitous because it
charged two separate larcenies for conduct that he contends was a sin-
gle larceny. An indictment charging a single offense in several counts
is multiplicitous, subjecting a defendant to a risk of multiple sen-
tences for a single offense in violation of the Double Jeopardy Clause.
United States v. Colon, 231 F.3d 890, 908 (4th Cir. 2000); United
States v. Mancuso, 42 F.3d 836, 847 n.11 (4th Cir. 1994). We review
a claim of multiplicity de novo. Mancuso, 42 F.3d at 847.
1The Government contends that Sydnor waived his right to appeal by
virtue of his guilty plea. However, Sydnor’s counsel referred to the plea
as conditional during the plea hearing, and the Government attorney
expressly agreed that Sydnor could appeal if the sentence was illegal.
Further, the transcript of the hearing before the district court does not
reflect that the Government asserted the waiver argument in that pro-
ceeding. Finally, a defendant who pleads guilty does not waive his right
to challenge an illegal sentence, United States v. Marin, 961 F.2d 493,
496 (4th Cir. 1992), and Sydnor raises a colorable, though ultimately
unsuccessful, argument that his sentence is illegal. Accordingly, we con-
clude that the appeal is properly before us.
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A theft of one owner’s property from two places in the same build-
ing generally constitutes a single act of larceny. United States v.
O’Brien, 255 F. Supp. 755, 767 (E.D. Mich. 1965), aff’d, 365 F.2d
601 (6th Cir. 1966), rev’d on other grounds, 386 U.S. 345 (1967).
Further, most states, and the circuits that have addressed the question,
have adopted the common law "single larceny" rule, whereby theft of
property from two different people in the same place as part of a sin-
gle continuing scheme or plan constitutes a single crime of larceny.
See, e.g., United States v. Perez, 956 F.2d 1098, 1102 (11th Cir.
1992); United States v. Billingslea, 603 F.2d 515, 520 n.6 (5th Cir.
1979); State v. Jones, 543 S.E.2d 541, 543-44 (S.C. 2001); State v.
Jordan, 495 S.E.2d 732, 735-36 (N.C. Ct. App. 1998); State v. White,
702 A.2d 1263, 1266-69 (Md. 1997) (collecting cases); Richardson v.
Commonwealth, 489 S.E.2d 697, 699-701 (Va. Ct. App. 1997); State
v. Hall, 298 S.E.2d 246, 256 (W. Va. 1982); 37 A.L.R.3d 1407 (1971
& Supp. 2000) (collecting cases). Sydnor contends that the single lar-
ceny doctrine should be applied to his case, and that under that doc-
trine he has committed only one act of larceny.
In United States v. Johnson, 612 F.2d 843, 847 (4th Cir. 1979), this
Court found that when a group of conspirators filled their tanker truck
with gasoline stolen from a single service station three times on the
same night, the conspirators had committed three thefts. Here, as in
the construction of other criminal statutes, the Court looked to con-
gressional intent when determining the " appropriate unit of prosecu-
tion."2 Id. at 845. The statute at issue in Johnson, 18 U.S.C.A. § 659
(West 2000), applied to one who "steals, or unlawfully takes [or] car-
ries away" any "goods or chattels" from an interstate pipeline, tank,
or storage facility. 18 U.S.C.A. § 659. The Court concluded that the
statute was not intended to punish a course of conduct, but instead
was designed to punish each distinct criminal act separately. Johnson,
612 F.2d at 847.
The statute at issue here, 18 U.S.C.A. § 661, provides in relevant
part:
2See, e.g., Bell v. United States, 349 U.S. 81, 82 (1955); United States
v. Dunford, 148 F.3d 385, 388-90 (4th Cir. 1998); United States v.
Elliott, 849 F.2d 886, 889-90 (4th Cir. 1988).
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Whoever, within the special maritime and territorial juris-
diction of the United States, takes and carries away, with
intent to steal or purloin, any personal property of another
shall be punished as follows . . . .
18 U.S.C.A. § 661. As noted above, Sydnor took the property of two
people from two separate cubicles, albeit from a single office, in a
short period of time. Sydnor had to enter one cubicle, take the items,
and carry them away from that cubicle before he could enter the sec-
ond cubicle and take additional items. Applying the statute to these
facts, we conclude that Sydnor, like the defendant in Johnson, 612
F.2d at 846-47, committed more than one offense. Accordingly, we
conclude that Sydnor was properly convicted and sentenced for two
violations of 18 U.S.C.A. § 661.
We affirm the district court’s order. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the Court and argument would not aid the deci-
sional process.
AFFIRMED
4 UNITED STATES v. SYDNOR

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