United States v. Jolynn May ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 12-30016
Plaintiff-Appellee,
D.C. No.
v. 3:11-cr-05073-
BHS-2
JOLYNN MAY ,
Defendant-Appellant.
UNITED STATES OF AMERICA , No. 12-30021
Plaintiff-Appellee,
D.C. No.
v. 3:11-cr-05073-
BHS-1
JASON MAY ,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted
November 7, 2012—Seattle, Washington
Filed February 12, 2013
2 UNITED STATES V . MAY
Before: William A. Fletcher and Raymond C. Fisher,
Circuit Judges, and Gordon J. Quist, Senior District Judge.*
Opinion by Judge Quist
SUMMARY**
Criminal Law
The panel affirmed sentences but vacated a portion of a
restitution order in a case in which the defendants were
convicted of receipt of stolen mail and mail theft.
The panel held that the district court did not err by
including in the loss calculation expenses the United States
Postal Service incurred to avert future mail thefts. The panel
wrote that uncharged mail thefts that occurred prior to the
date the USPS changed its delivery policy are, simultaneously
with the pre-change possession (receipt) offenses, relevant
conduct the district court may consider; and that the expenses
were a reasonably foreseeable pecuniary harm resulting from
the defendants’ ongoing crime spree of numerous and
widespread thefts.
The panel held that the district court improperly ordered
restitution for the expenses because the mail theft of which
*
The Honorable G ordon J. Quist, United States District Judge for the
W estern District of Michigan, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . MAY 3
the defendants were convicted occurred after, and could not
have caused, the USPS’s delivery procedure change. The
panel wrote that the defendants’ pre-change possession of
stolen mail did not support the restitution order because it is
clear that mail theft – not unlawful possession – caused the
USPS to change its procedures.
COUNSEL
Timothy R. Lohraff (argued), Law Office of Timothy R.
Lohraff, P.S., Seattle, Washington, for Defendant-Appellant
Jason May.
Linda R. Sullivan (argued) and Alan Zarky, Federal Public
Defender, Tacoma, Washington, for Defendant-Appellant
Jolynn May.
Jenny A. Durkan, United States Attorney; S. Kate Vaughan,
Assistant United States Attorney, Teal Luthy Miller (argued),
Assistant United States Attorney, Seattle, Washington, for
Plaintiff-Appellee.
OPINION
QUIST, District Judge:
Defendants Jason and Jolynn May pled guilty to one
count of receipt of stolen mail and one count of mail theft, in
4 UNITED STATES V . MAY
violation of 18 U.S.C. § 1708.1 The district court’s loss
calculation included certain expenses the United States Postal
Service (the “USPS”) incurred to avert future mail thefts. On
appeal, the Mays argue that the district court erred by
including these expenses as loss, for purposes of both
sentencing and restitution. We reject the Mays’ argument
with regard to the loss calculation under the Sentencing
Guidelines, but conclude that the district court improperly
ordered restitution for the USPS’s expenses.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2010, during the holiday season, the Mays
engaged in a series of mail thefts in the Vancouver,
Washington area. On at least four occasions that month, the
Mays drove through Vancouver neighborhoods on
1
18 U.S.C. § 1708 provides, in relevant part:
W hoever steals, takes, or abstracts . . . from or out of
any . . . mail receptacle, or any mail route or other
authorized depository for mail matter . . . any letter,
postal card, package, bag, or mail, or abstracts or
removes from any such letter, package, bag or mail, any
article or thing contained therein . . . ; or
....
W hoever . . . receives . . . or unlawfully has in his
possession any letter, postal card, package, bag, or mail,
or any article or thing contained therein, which has
been so stolen, taken, embezzled, or abstracted, . . .
knowing the same to have been stolen, taken,
embezzled, or abstracted—
Shall be fined under this title or imprisoned not more
than five years, or both.
UNITED STATES V . MAY 5
“Christmas shopping” trips—as the Mays dubbed them—in
search of packages to steal. Mychal Lecouris accompanied
the Mays on several occasions. During these trips, Jolynn
drove the Mays’ Volkswagen, with Jason in the passenger
seat and Lecouris in the back, while they looked for packages
on porches, in doorways, or in community mailboxes. When
they spotted a package, Jason or Lecouris would grab it from
the porch or doorway, return to the car. They would usually
unwrap it and throw the packaging out the car window. If the
target package was in a community mailbox, Jason would use
vice-grips to twist the lock and would then remove the
package from the parcel locker.
On December 24, 2010, based on a witness tip, police
officers arrested the Mays as they sat parked in their
Volkswagen at their apartment. A search of the Mays’
apartment and Volkswagen revealed evidence of stolen
property, including children’s toys and books, medications,
and airline uniforms, some of which were still in priority mail
boxes with missing address labels.
The Mays were charged in a two-count indictment with
receipt of stolen mail and mail theft in violation of 18 U.S.C.
§ 1708. Count 1 alleged that the Mays unlawfully possessed
stolen mail “no later than December 2, 2010, and continuing
through at least December 24, 2010.” Count 2 alleged that
the Mays committed mail theft on December 24, 2010. The
Mays pled guilty to both counts pursuant to written plea
agreements, in which they admitted to stealing mail on at
least four occasions during December 2010.
The Mays’ presentence reports identified the USPS as a
victim and recommended that the loss calculation include
$69,753 in expenses the USPS incurred to prevent additional
6 UNITED STATES V . MAY
mail thefts. The district court held a hearing to establish loss
for sentencing and restitution, at which the government
presented testimony from Angela Pacuzca, the acting
manager of the East Vancouver Post Office (“EVPO”) during
time the Mays committed their thefts. Ms. Pacuzca testified
that the EVPO serves customers in the zip codes affected by
the Mays’ thefts and that from December 13, 2010 through
December 19, 2010, the EVPO received a “tidal wave” of
customer complaints about undelivered parcels. In response
to the increased volume of complaints, Ms. Pacuzca and the
Vancouver Postmaster changed the EVPO’s policy for parcel
deliveries to provide that parcels would be delivered only to
customers who were home and that all undelivered parcels
would be returned to the EVPO for customer pick-up. The
change resulted in less than ten percent of all parcels being
delivered and required the EVPO to extend its business hours
and increase staffing to accommodate customer parcel pick-
up traffic. The policy change remained in effect until
December 24, 2010.
The district court concluded that the USPS’s expenses
should be included as loss under the United States Sentencing
Guidelines (“U.S.S.G.”) and applied an eight-level
enhancement under U.S.S.G. § 2B1.1(b)(1)(E) for loss
exceeding $70,000 (consisting of the USPS’s expenses and
$2,104 in loss suffered by unidentified postal customers).
The district court further concluded that the USPS’s expenses
should be considered a loss for purposes of restitution and
ordered the Mays to pay $69,778 in restitution.2
2
This amount consisted of the USPS’s expenses and a $25 loss of a
single mail theft victim.
UNITED STATES V . MAY 7
DISCUSSION
I. Sentencing
The Mays argue that the district court erred in including
the USPS’s expenses as loss under U.S.S.G. § 2B1.1 because
they were incurred solely to deter future mail thefts, rather
than to address or mitigate the effects of the Mays’ completed
offenses. Thus, the Mays argue, their conduct did not
proximately cause the USPS’s expenditures.
We review “the district court’s interpretation of the
Sentencing Guidelines de novo, the district court’s
application of the Sentencing Guidelines to the facts of this
case for abuse of discretion, and the district court’s factual
findings for clear error.” United States v. Kimbrew, 406 F.3d
1149, 1151 (9th Cir. 2005).
We begin with loss under the Sentencing Guidelines,
which is “the greater of actual or intended loss.” U.S.S.G.
§ 2B1.1, cmt. n. 3(A). “Actual loss”—at issue in this
appeal—“means the reasonably foreseeable pecuniary harm
that resulted from the offense.” U.S.S.G. § 2B1.1, cmt.
n. 3(A)(i). “Pecuniary harm” is “harm that is monetary or
that otherwise is readily measurable in money . . . [but] does
not include emotional distress, harm to reputation, or other
non-economic harm.” U.S.S.G. § 2B1.1 cmt. n. 3(A)(iii).
Harm is reasonably foreseeable if “the defendant knew or,
under the circumstances, reasonably should have known, [that
the harm] was a potential result of the offense.” U.S.S.G.
§ 2B1.1, cmt. n. 3(A)(iv).
In the context of sentencing, a district court is not limited
to offense conduct, but rather may consider all of the
8 UNITED STATES V . MAY
defendant’s “relevant conduct” in calculating loss under
§ 2B1.1. U.S.S.G. § 1B1.3. Pertinent to this appeal, relevant
conduct includes “all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant . . . that occurred during the
commission of the offense of conviction,” U.S.S.G.
§ 1B1.3(a)(1)(A), and “all harm that resulted from [such] acts
and omissions.” U.S.S.G. § 1B1.3(a)(3). Because relevant
conduct may include a broader range of conduct than the
underlying offense conduct, a district court may “properly
consider[] charged, uncharged, and acquitted conduct.”
United States v. Peyton, 353 F.3d 1080, 1089 (9th Cir. 2003),
overruled on other grounds by United States v. Contreras,
593 F.3d 1135, 1136 (9th Cir. 2010) (en banc) (per curiam).
Finally, this court has held that the term “resulted from” in
U.S.S.G. § 1B1.3(a)(3) implies legal causation between the
defendant’s conduct and the resulting harm. United States v.
Hicks, 217 F.3d 1038, 1048 (9th Cir. 2000).
Were we confronted solely with the Mays’ December 24,
2010, mail theft offense, we would have no basis to conclude
that the Mays’ conduct caused the USPS’s expenses because
the EVPO changed its delivery policy on December
20—four days before the charged theft offense. However, the
uncharged mail thefts that occurred prior to December 20,
simultaneously with the possession offenses, are relevant
conduct that we may consider. This conduct is relevant not
only because the Mays admitted to committing the thefts in
their plea agreements, but also because it provided the
government the evidence it needed to prove the Mays
knowingly possessed stolen mail, i.e., the Mays knew they
possessed stolen mail because they stole it.
UNITED STATES V . MAY 9
The question, then, is whether it was reasonably
foreseeable that the USPS would react to their thefts by
switching its parcel delivery policy to customer pick-up to
ensure that its customers received their parcels. On this issue,
the district court said:
There’s no doubt in my mind that it was
foreseeable by these defendants that their
activity had been so extensive in the days
leading up to Christmas that the post office
would find itself compelled to make
temporary and expensive changes to the
service as a result of the activity. Therefore,
the distinction of costs directly incurred to
curb further loss is not a distinction that
affects the answer to the question of whether
the cost was a direct result of or proximately
caused by the criminal conduct of the
defendant[s].
The district court was not clearly erroneous in concluding
that the expense the USPS incurred was a reasonably
foreseeable pecuniary harm resulting from the Mays’ actions.
This is not a case of an isolated mail theft. Instead, each of
the Mays’ excursions involved numerous and widespread
thefts, and each new excursion increased the likelihood that
the USPS would take some action to respond to the surging
“tidal wave” of customer complaints—perhaps by
temporarily changing its parcel delivery procedure for the
duration of the busy holiday delivery season or until the
perpetrators were caught. We decline to wade into the murky
waters of temporary versus permanent crime prevention
measures as permissible loss, as the Mays would have us do,
especially because we discern from the Sentencing
10 UNITED STATES V . MAY
Guidelines no limitation, express or implied, placing such
expenditures beyond the purview of § 2B1.1.3 Whether
permanent crime prevention measures can be considered loss
under § 2B1.1is not an issue we need now address and is best
left for examination in the context of the specific facts under
which it may arise. It suffices for purposes of the instant case
that the USPS theft prevention measures were directed at the
Mays’ ongoing crime spree that concluded after the USPS
changed its delivery procedures.
II. Restitution
The Mays present two arguments on appeal concerning
the restitution order. First, they argue that the district court
erred in ordering restitution for the USPS’s expenses because
they are consequential damages not permitted by the
Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C.
§ 3663A. The Mays also argue that the restitution order is
unlawful because the USPS’s expenses did not result from
3
The only authority the Mays cite for the proposition that crime
prevention measures cannot be considered loss under the Sentencing
Guidelines is United States v. Wright, 176 F. App’x 373 (4th Cir. 2006)
(per curiam), an unreported Fourth Circuit decision. Wright is not at all
instructive on the issue. First, the court’s discussion of the victim’s post-
burglary security costs was in the context of restitution, not sentencing.
Moreover, the opinion offers nothing of substance in terms of analysis, as
the court merely noted the government’s agreement that such costs were
“consequential damages that are not properly included in the restitution
order.” Id. at 375. In contrast, in United States v. Warr, 530 F.3d 1152(9th Cir. 2008), we observed that the 2001 Sentencing Guidelines
amendment defining “loss” under § 2B1.1 as “the reasonably foreseeable
pecuniary harm that resulted from the offense” abrogated the portion of
United States v. Newman, 6 F.3d 623 (9th Cir. 1993), holding that “loss”
does not encompass “consequential losses.” Id. at 1159 n.7. Thus, we
have recognized that loss under § 2B1.1 may include consequential loss.
UNITED STATES V . MAY 11
conduct underlying an offense of conviction. We find the
latter argument persuasive and, therefore, address only that
argument.
The Mays did not raise their offense of conviction
argument in the district court. However, the question
presented is purely one of law, requiring no further factual
development. We will consider such a claim when raised for
the first time on appeal. United States v. Baker, 25 F.3d
1452, 1456 (9th Cir. 1994).
This court’s precedents firmly hold that a court may
award restitution under the MVRA only for loss that flows
directly from “‘the specific conduct that is the basis of the
offense of conviction.’”4 United States v. Gamma Tech
Indus., Inc., 265 F.3d 917, 927 (9th Cir. 2001) (quoting
Hughey v. United States, 495 U.S. 411, 413 (1990)); see also
United States v. Baker, 25 F.3d 1452, 1457 (9th Cir. 1994)
(noting that “a district court may not order restitution for any
loss beyond that caused by the offense of which the defendant
was convicted”). Thus, a court is authorized to order
restitution “for the offense of conviction and not for other
related offenses of which the defendant was not convicted.”
United States v. Batson, 608 F.3d 630, 636 (9th Cir. 2010).
The district court’s causation analysis for both sentencing
and restitution purposes hinged on the Mays’ mail thefts. But
the mail theft charge set forth in Count 2 charged the Mays
4
An exception exists for conduct beyond the offense of conviction if the
offense “involves as an element a scheme, conspiracy, or pattern of
criminal activity.” 18 U.S.C. § 3663A(a)(2); see United States v. Napier,
463 F.3d 1040, 1046 (9th Cir. 2006). The offenses at issue in this case
contain no such element.
12 UNITED STATES V . MAY
with mail theft only on December 24, 2010 and, as we have
already noted, the December 24 mail theft could not have
caused the USPS to change delivery procedures four days
earlier, on December 20. Recognizing this hitch in the
district court’s analysis, the government asserts that the
conviction on Count 1 for receipt of stolen mail supports the
restitution order because it alleges that the Mays possessed
stolen mail prior to December 20, 2010. What is clear both
from the district court’s reasoning and the facts surrounding
the USPS’s change in parcel delivery, however, is that mail
theft—not unlawful possession—caused the USPS to change
its procedures. The Mays were not convicted of mail theft
that occurred prior to December 20.
While it is true that the Mays’ thefts were conduct
surrounding their convictions for possession of stolen mail,
the government was only required to prove that the mail was
stolen, not that Mays stole it. See Randhawa v. Ashcroft,
298 F.3d 1148, 1153 (9th Cir. 2002) (to prove possession of
stolen mail, the government must show “(1) that the
defendant possessed stolen mail; (2) that the defendant knew
the mail was stolen; and (3) that the mail was, in fact,
stolen”). Thus, the district court plainly erred in ordering
restitution for the USPS’s expenses. See United States v.
Reed, 80 F.3d 1419, 1422 (9th Cir. 1996) (holding that
district courts cannot order “restitution for conduct that is
related to the offense of conviction, but that is not an element
of the offense”).
The government argues United States v. Bachsian, 4 F.3d
796 (9th Cir. 1993), is controlling because in Bachsian, this
court rejected the defendant’s argument that a conviction for
possession of stolen goods cannot support a restitution order
because theft of the goods, rather than possession, causes the
UNITED STATES V . MAY 13
loss. Bachsian has no application to the specific restitution
issue before us. The court in Bachsian concluded that the
defendant’s possession of the stolen gloves resulted in loss
because those gloves were the only gloves that were not
recovered. Id. at 800. In other words, the possession
deprived the lawful owner of the gloves. Bachsian thus deals
with loss caused by possession of the stolen object and would
apply to this case if we were concerned with loss resulting
from the Mays’ possession of the stolen mail, but that is not
our issue.
CONCLUSION
For the foregoing reasons, we affirm the Mays’ sentences
but vacate that portion of the restitution order awarding
restitution for the USPS’s expenses of $69,753.
AFFIRMED IN PART AND VACATED IN PART.