United States v. Kaiser , 520 F. App'x 731 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 8, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 12-2133
v. (D. N.M.)
KATHRYN KAISER, (D.C. No. 1:11-CR-02421-BB-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and appellant Kathryn Kaiser pled guilty to stealing the contents
of pieces of mail while she was a postal employee, in violation of 18 U.S.C.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
§ 1709. She was sentenced to three years of probation, and required to complete
six months of location monitoring, for which she was obligated to pay in whole or
in part. Arguing that her sentence is procedurally unreasonable, Ms. Kaiser
appeals her sentence. We affirm.
BACKGROUND
At the time of the events relevant to this appeal, Ms. Kaiser had been
employed by the United States Postal Service (“USPS”) as a postal clerk for a
total of sixteen years. On April 8, 2010, Postmaster Vicki Voyles contacted the
USPS Office of the Inspector General (“OIG”). Ms. Voyles told a special agent
with the OIG that several clerks at the Edgewood, New Mexico, Post Office had
observed Ms. Kaiser take and rifle through first-class mail. On May 18, 2010, an
OIG agent interviewed Edgewood postal clerk Kay Mayoora, who stated that she
first noticed Ms. Kaiser rummaging through the mail at the Edgewood Post Office
on April 5, 2010. Ms. Mayoora stated that, although she had seen Ms. Kaiser take
numerous pieces of mail, she only documented a few instances. More
specifically, Ms. Mayoora reported that, on April 26, 2010, she saw Ms. Kaiser
take pieces of mail from the “hot case” (container holding mail to be sorted) and
later return them. Ms. Mayoora retrieved the mail pieces, which had been taped
shut, and photocopied them. Ms. Mayoora gave two of those copies to Ms.
Voyles, who forwarded the copies to OIG.
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Ms. Mayoora also reported that she had seen Ms. Kaiser handle colored
envelopes and take them into the bathroom. She thereafter stated she could hear
the sound of envelopes tearing. At one point, Ms. Mayoora and another clerk
planted envelopes on the bottom of a mail tub that Ms. Kaiser later took to sort.
Ms. Mayoora later saw the “planted” envelopes on Ms. Kaiser’s desk. Ms. Kaiser
turned the envelopes over and covered them. Ms. Mayoora reported that she last
saw Ms. Kaiser take a piece of mail on April 24, 2010.
The OIG agent also interviewed Edgewood postal clerk Steve Mitchell.
Mr. Mitchell reported that he, too, had seen Ms. Kaiser take colored envelopes
(presumably containing greeting cards) from the collection bin and “raw” letter
trays. More specifically, Mr. Mitchell stated that on April 10, 2010, at
approximately 6:00 a.m., he saw Ms. Kaiser stop sorting parcels and go through a
letter tray. She removed three or four colored envelopes and walked to the
women’s bathroom. Ms. Kaiser returned a few minutes later without the
envelopes. Mr. Mitchell identified copies of envelopes he had recovered and
which he believed Ms. Kaiser had rifled through. Mr. Mitchell also stated that he
had not actually seen Ms. Kaiser open or take anything out of an envelope, but
that he believed she had done so, based upon his observations.
On June 28, 2010, OIG agents prepared and placed three test pieces of mail
containing marked $20 bills at the Edgewood Post Office . A short time later that
same day, an OIG agent asked the acting Postmaster at the Edgewood facility,
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Penny Cline, to retrieve the three test mail pieces. Ms. Cline was only able to
find two of the three test pieces. Ms. Kaiser had sorted collections mail that day.
Furthermore, Ms. Cline reported that a $20 bill was found on the Post Office floor
and Ms. Kaiser claimed it was hers, stating it had fallen out of her clothing.
The investigating agents interviewed Ms. Kaiser that same day (June 28).
She admitted to stealing and rifling through first class mail beginning in early
April 2010. Ms. Kaiser stated that, at one point, she was taking three to four
pieces of mail per day, and that Wednesdays were particularly “productive” for
her because she sorted collections on that day. She stated that she targeted
birthday cards and she took money because she needed money for groceries and
other essentials. 1 Ms. Kaiser said she did not steal gift cards, as she thought they
were traceable. She admitted to flushing the OIG test piece envelope down the
toilet. Ms. Kaiser then gave the OIG agents a sworn statement admitting to taking
cash from an open envelope. She reported that she began stealing in April and
ended towards the end of June. She estimated that she took a total of between
$300 and $500.
On June 29, 2010, the OIG agents reviewed video footage taken on June 28,
2010, at the Edgewood Post Office. The video showed Ms. Kaiser opening a
1
Ms. Kaiser reported that she was in dire financial straits at the time she
stole the pieces of mail. Among other things, she was the sole financial support
for her family, inasmuch as her husband had suffered an injury at his employment
and was on disability; Ms. Kaiser had lost much of her savings to a gambling
addiction; and her house was in foreclosure.
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piece of mail at 12:16 p.m., placing an item in her right pocket, and concealing
the envelope under her apron.
According to the OIG agents, the USPS did not suffer a loss as a result of
the offense. There were, however, a number of complaints from customers who
reported that their mail had been rifled through or was missing. The agents were
unable to identify specific victims. Although one person reported stolen checks
from her mail, Ms. Kaiser never admitted to taking any checks.
Ms. Kaiser pled guilty to the indictment on January 26, 2012. In
preparation for sentencing under the advisory United States Sentencing
Commission, Guidelines Manual (“USSG”), the United States Probation Office
prepared a presentence report (“PSR”), which was subsequently amended and re-
disclosed. The PSR calculated a total offense level of ten, which included a four-
level enhancement pursuant to USSG §2B1.1(b)(2)(B) because the offense
involved fifty or more victims. With a criminal history category of I, the PSR
recommended an advisory sentence range of six to twelve months.
Ms. Kaiser objected to the PSR, arguing that the four-level enhancement
was incorrect, claiming there is “no evidentiary support for this enhancement.”
Add. to PSR, R. Vol. II at 40. She also filed a Sentencing Memorandum, in
which she stated that, while she had “no objection to any of the factual statements
contained in the [PSR],” she did object to the four-level enhancement for fifty or
more victims because, once again, she averred there was “no evidentiary support
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of any kind” for the enhancement. Sentencing Mem. at 2, R. Vol. I at 17. The
Sentencing Memorandum then went through the evidence, as detailed in the PSR,
in an effort to show why a four-level enhancement for more than fifty victims was
improper: “In sum, since there have been no victims identified by Ms. Kaiser’s
alleged wrongful conduct, there is no evidentiary support for an enhancement for
more than fifty victims under U.S.S.G. §2B1.1(b)(2)(B).” Id. at 19-20.
At sentencing, Ms. Kaiser reiterated her objection to the enhancement, and
asked for a “noncustodial sentence . . . for the reasons set forth in the sentencing
memorandum.” Tr. of Sentencing at 3, R. Vol. III at 3. She went on to state,
“whether or not the Court applies the enhancement for 50 victims and varies
downward, or does not and arrives at an offense level of 6, in either case, [I] ask
the Court to impose a noncustodial sentence.” Id. The government conceded it
could not specifically identify a particular victim, but agreed with the PSR that
the fifty-victim enhancement applied, and indicated that it left the question of
incarceration or not to the discretion of the court.
The district court overruled Ms. Kaiser’s objection to the four-point
enhancement, finding her offense level to be ten and her criminal history category
to be I, yielding an advisory Guidelines sentence of six to twelve months. The
court departed down, sentencing Ms. Kaiser to three years probation and it
included as a special condition the requirement that Ms. Kaiser “participate in and
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successfully complete a location monitoring program for a period of six months”
to be paid, in all or part, by Ms. Kaiser. Id. at 7.
This appeal followed, in which Ms. Kaiser argues her sentence is
procedurally unreasonable because the district court erred in applying the fifty-
victim enhancement.
DISCUSSION
We review sentences for reasonableness under a deferential abuse-of-
discretion standard. See United States v. Alapizco-Valenzuela, 546 F.3d 1208,
1214 (10th Cir. 2008). “‘Reasonableness review is a two-step process comprising
a procedural and a substantive component.’” Id. (quoting United States v.
Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008)). See Gall v. United States,
552 U.S. 38, 51 (2007). Procedural review “asks whether the sentencing court
committed any error in calculating or explaining the sentence.” Alapizco-
Valenzuela, 546 F.3d at 1214. In determining whether the district court correctly
calculated the applicable Guidelines range, “we review factual findings for clear
error and legal determinations de novo.” United States v. Wilken, 498 F.3d 1160,
1169 (10th Cir. 2007). Ms. Kaiser only challenges the procedural reasonableness
of her sentence, inasmuch as she challenges the district court’s inclusion of the
fifty-victim enhancement when calculating her advisory Guidelines range.
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USSG §2B1.1(b)(2)(B) provides for a four-level enhancement if the offense
involved fifty or more victims. “The government carries the burden of proving by
a preponderance of the evidence that an enhancement is appropriate.” United
States v. Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012) (further quotation
omitted). For purposes of §2B1.1(b)(2), when undelivered United States mail has
been taken, a victim is defined as including “any person who was the intended
recipient, or addressee, of the undelivered United States mail.” USSG §2B1.1
comment. (n.4(C)(I)). 2
The commentary to that USSG provision further includes a “special rule”:
“A case described in subdivision (B)(I) of this note that involved a Postal Service
(I) relay box; (II) collection box; (III) delivery vehicle; or (IV) satchel or cart,
shall be considered to have involved at least 50 victims.” USSG §2B1.1
comment. (n.4(C)(ii)(I)). The Sentencing Commission has indicated that it
provided this special rule “because of (i) the problems often attendant to such
offenses, (ii) the frequently significant, but difficult to quantify, non-monetary
losses in such offenses, and (iii) the importance of maintaining the integrity of the
United States mail.” USSG app. C, Amendment 617.
“We must treat this commentary as ‘authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly erroneous
2
The Guidelines contain other definitions of victim, which are not relevant
to this appeal.
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reading of, that guideline.’” United States v. Butler, 694 F.3d 1177, 1181 (10th
Cir. 2012) (quoting Stinson v. United States, 508 U.S. 36, 38 (1993)). Despite
Ms. Kaiser’s allegation that the application of the enhancement violated her due
process rights, we find that the application of the special rule does not violate the
Constitution or in any way violate Ms. Kaiser’s rights.
Ms. Kaiser argues that the district court erred by treating the “presumption”
contained in the commentary’s special rule to be “conclusive and declin[ing] to
consider evidence suggesting its inappropriateness in this case.” Appellant’s
Reply Br. at 6. We have read the entire record in this case, including the PSR and
the transcript of Ms. Kaiser’s sentencing hearing, and we conclude that the
district court did not, in fact, treat the fifty-victim presumption as conclusive.
Rather, the court simply applied that presumption to the evidence in this case.
For example, when Ms. Kaiser stated her belief that “there is no factual support in
the record” for the four-level enhancement, the court responded as follows:
Well, I disagree with that. I’ll go on the record and say that I
have found that [the government’s] interpretation and the probation
office’s interpretation of the statute with regard to the transfer box,
hot box, qualifies under the language of the statute for the intent of
the statute to determine that . . . 50 victims were involved.
Tr. of Sentencing Hr’g at 10-11, R. Vol. III at 10-11. The court clearly indicated
its disagreement with Ms. Kaiser’s view that there was no “factual support” for
the enhancement.
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Furthermore, the court did not prohibit Ms. Kaiser from arguing the
inapplicability of the fifty-victim enhancement. She argued the point vigorously
in her Sentencing Memorandum and specifically reiterated that argument at the
sentencing hearing. Disagreeing with her assertion does not equate to denying
her the opportunity to support her assertion. In short, the government carried its
burden in this case and the district court did not clearly err or erroneously
interpret the Guidelines in applying the enhancement in question.
Having determined that the sentence imposed was procedurally reasonable,
we affirm Ms. Kaiser’s sentence.
CONCLUSION
For the foregoing reasons, we AFFIRM the sentence in this case.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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