United States v. Gray , 71 F. App'x 300 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 18, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-20992
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY LEE GRAY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(H-02-CR-214-1)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jerry Lee Gray pleaded guilty to destruction of letter boxes
intended and used for the receipt and delivery of mail; he was
sentenced, inter alia, to 21 months’ imprisonment. Gray and his
coconspirator pried off the mailbox panels in an apartment
building, exposing 42 individual mailboxes. The building’s
security guard informed police that mail was in some of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
individual boxes, but the record does not reflect how many of them
contained mail.
The probation officer recommended adding two levels to Gray’s
base offense level, pursuant to Sentencing Guidelines §
2B1.1(b)(2)(A), because there were more than ten and fewer than 50
victims. Gray objected to this adjustment, contending: under the
Guidelines, there must be mail inside a mailbox for the owner to be
considered a victim; and, because there was no indication how many
boxes contained mail, there was insufficient evidence to show more
than ten victims. The probation officer responded that the
Guidelines require only that the object of the offense involve the
theft of mail. The district court overruled Gray’s objection.
We review interpretation of the Guidelines de novo; factual
findings, for clear error. E.g., United States v. Claiborne, 132
F.3d 253, 254 (5th Cir.), cert. denied, 523 U.S. 1144 (1998). As
noted, § 2B1.1(b)(2)(A) provides for a two-level adjustment if the
offense involved ten or more, but fewer than 50, victims.
In a case in which undelivered United
States mail was taken, or the taking of such
item was an object of the offense, ...
‘victim’ means [(1) any person who sustained
any part of an actual (financial) loss or
bodily injury from the offense, or (2)] who
was the intended recipient, or addressee, of
the undelivered United States mail.
§ 2B1.1, cmt. n.3(B)(i) (emphasis added). “Undelivered United
States mail” means “mail that has not actually been received by the
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addressee or his agent (e.g., mail taken from the addressee’s
mailbox)”. § 2B1.1, cmt. n.3(B)(iii).
Neither of the definitions of “victim” are applicable to the
42 owners, absent evidence that they suffered damage or had
undelivered mail. The management company, not the tenants, paid
for the repairs to the boxes and was thus the only known economic
victim. Moreover, as stated, there is no indication that Gray or
his coconspirator actually removed mail from any of the individual
mailboxes or that any mail went otherwise undelivered.
Presumably the taking of undelivered mail inside the boxes was
the object of the offense, and the intended recipients of that mail
were its intended victims. Thus, anyone who had mail could
properly be counted as a victim for purposes of the Guideline.
Again, however, there is no indication that this group was at least
ten in number.
The Government relies, in part, on a “special rule” involving
undelivered mail in a Postal Service box, vehicle, satchel, or
cart, and for which there are unique proof problems concerning the
number of victims. See U.S.S.G. § 2B1.1, cmt. n. 3(b)(ii).
Needless to say, the “special rule” is not applicable.
The application of the number-of-victims adjustment is VACATED
and the case REMANDED for resentencing consistent with this
opinion.
VACATED and REMANDED
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