United States v. Gonzalez Becerra ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50381
Plaintiff-Appellee,
D.C. No.
v. 2:07-cr-00812-
DSF-1
CARLOS JONATHAN GONZALEZ
BECERRA, AKA Carlos Jonathan
Gonzalez, AKA Jonathan Becerra, OPINION
AKA Carlos Jonathan Becerra,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted March 3, 2015*
Pasadena, California
Filed April 14, 2015
Before: Michael R. Murphy,** Ronald M. Gould,
and Richard C. Tallman, Circuit Judges.
Opinion by Judge Murphy
*
The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
**
The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals, Tenth Circuit, sitting by designation.
2 UNITED STATES V. GONZALEZ BECERRA
SUMMARY***
Criminal Law
The panel affirmed a sentence for possession of stolen
mail in a case in which the district court increased the
defendant’s offense level pursuant to U.S.S.G.
§ 2B1.1(b)(2)(B) because the offense involved 50 or more
victims.
The district court relied on Sentencing Guidelines
commentary, U.S.S.G. § 2B1.1 cmt. n.4(C), which provides
that the term “victim” encompasses “any person who was the
intended recipient, or addressee, of . . . undelivered United
States mail.”
The defendant argued that the commentary definition is
inconsistent with the definition in § 2B1.1, and that
application of the commentary was therefore error, because
§ 2B1.1 is a fraud guideline, and within that context “victim”
includes only individuals who suffered pecuniary loss.
The panel held that § 2B1.1 is not limited to crimes
involving fraud and the term “victim” is commonly
understood to include a broader class of individuals than
those who suffered a monetary loss. The panel therefore
concluded that the special definition of the term “victim” set
out in the commentary regarding the theft of undelivered mail
is perfectly consistent with the use of that term in the text of
***
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. GONZALEZ BECERRA 3
§ 2B1.1, and the district court did not err in increasing the
defendant’s offense level pursuant to § 2B1.1(b)(2)(B).
COUNSEL
Sean K. Kennedy, Federal Public Defender, and Michael
Tanaka, Deputy Federal Public Defender, Los Angeles,
California, for Defendant-Appellant.
André Birotte Jr., United States Attorney; Joseph B. Widman,
Assistant United States Attorney, Chief, Riverside Branch;
and Tritia L. Yuen, Assistant United States Attorney, Los
Angeles, California, for Plaintiff-Appellee.
OPINION
MURPHY, Circuit Judge:
I. INTRODUCTION
Carlos Gonzalez Becerra pleaded guilty to possessing
stolen mail, in violation of 18 U.S.C. § 1708. In calculating
his advisory sentencing range under the United States
Sentencing Guidelines, the district court increased Gonzalez
Becerra’s offense level by four because the offense “involved
50 or more victims.” U.S.S.G. § 2B1.1(b)(2)(B). The district
court relied on the commentary to § 2B1.1, which provides
that the term “victim” encompasses “any person who was the
intended recipient, or addressee, of . . . undelivered United
States mail.” Id. § 2B1.1 cmt. n.4(C).
4 UNITED STATES V. GONZALEZ BECERRA
Gonzalez Becerra asserts the district court erred in relying
on the definition of “victim” in the commentary because that
definition is inconsistent with the text of the guideline itself.
Cf. Stinson v. United States, 508 U.S. 36, 38 (1993)
(“[C]ommentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline.”). In particular,
he contends § 2B1.1 is a “fraud guideline” and, within that
context, the term “victim” is commonly understood to include
only individuals who suffered pecuniary loss. He further
asserts the use of the term “victim” in the text of § 2B1.1
necessarily incorporates into the guideline this common
understanding. Thus, according to Gonzalez Becerra,
because the commentary includes within its definition of
victims individuals who did not suffer a pecuniary loss, the
commentary is inconsistent with the guideline.
Gonzalez Becerra’s argument is unpersuasive. Section
2B1.1 is not limited to crimes involving fraud and the term
“victim” is commonly understood to include a broader class
of individuals than those who suffered a monetary loss. Thus,
exercising jurisdiction pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742, this court affirms the sentence imposed by
the district court.
II. BACKGROUND
A. Factual Background
Gonzalez Becerra’s prosecution for possession of stolen
mail grew out of a traffic stop. Gonzalez Becerra was the
driver of the vehicle; Angela Okos was his passenger. During
the stop, Gonzalez Becerra was unable to provide a driver’s
UNITED STATES V. GONZALEZ BECERRA 5
license. While searching him for identification, officers
found three credit cards, none of which was in Gonzalez
Becerra’s name. Inside the vehicle, officers found a piece of
mail addressed to another person, sheets of paper containing
personal identifying information of numerous individuals,
and a Mexican identification card in the name of Carlos
Jonathan Gonzalez.1 The next day, officers executed a search
warrant at Gonzalez Becerra’s residence. The search
revealed that Gonzalez Becerra possessed a large quantity of
stolen mail. Including the mail found in both his car and
house, Gonzalez Becerra possessed the mail of slightly less
than 250 individuals. The items in that stolen mail included
43 credit cards; 140 personal checks in the names of 32
individual account holders; 360 blank checks in the names of
15 individual account holders; and 289 pieces of other mail
such as bills, tax documents, bank and credit card statements,
and other miscellaneous items.
During an interview, Okos told officers she had
accompanied Gonzalez Becerra on previous occasions when
he traded methamphetamine for stolen mail. Okos also told
officers she had driven Gonzalez Becerra around the Greater
Los Angeles area to steal mail.
B. Procedural Background
The grand jury issued a multi-count indictment charging
Gonzalez Becerra with, inter alia, numerous counts of
possessing stolen mail. Gonzalez Becerra entered into a plea
agreement with the government. He agreed to plead guilty to
a single violation of 18 U.S.C. § 1708 and, in exchange, the
1
The record reveals that Gonzalez Becerra’s full name is Carlos
Jonathan Gonzalez Becerra.
6 UNITED STATES V. GONZALEZ BECERRA
government agreed to move to dismiss the remaining counts
of the indictment and recommend a three-level reduction to
Gonzalez Becerra’s offense level for acceptance of
responsibility. The district court accepted Gonzalez
Becerra’s guilty plea and ordered the preparation of a
presentence investigation report (“PSR”).
As relevant to this appeal, the PSR recommended a four-
level increase to Gonzalez Becerra’s offense level pursuant to
the terms of § 2B1.1(b)(2). Section 2B1.1(b)(2) provides for
graduated increases to a defendant’s offense level based on
the number of victims involved in the offense of conviction:
(1) an increase of two levels if the crime “involved 10 or
more victims” or “was committed through mass-marketing”;
(2) an increase of four levels if the crime “involved 50 or
more victims”; or (3) an increase of six levels if the crime
“involved 250 or more victims.” U.S.S.G. § 2B1.1(b)(2).
Although the text of § 2B1.1 does not contain a definition of
the term “victim,” the PSR noted that the commentary to the
guideline contains three definitions. Application Note 1
defines the term, in relevant part, as follows: “‘Victim’ means
(A) any person who sustained any part of the actual loss
determined under subsection (b)(1)[2]; or (B) any individual
who sustained bodily injury as a result of the offense.” Id.
2
U.S.S.G. § 2B1.1(b)(1) sets out a schedule in which greater amounts
of actual or intended monetary losses are coupled with correspondingly
greater increases to a defendant’s offense level. In this case, the district
court concluded there was no actual loss, but that Gonzalez Becerra
intended to cause a loss of more than $120,000. The amount of intended
loss found by the district court corresponds to a ten-level increase in
Gonzalez Becerra’s total offense level. Id. § 2B1.1(b)(1)(F). Because the
district court concluded there was no actual loss, but instead only intended
loss, Gonzalez Becerra’s crime did not involve any victims under the
definition of the term set out in § 2B1.1 cmt. n.1.
UNITED STATES V. GONZALEZ BECERRA 7
§ 2B1.1 cmt. n.1. Application Note 4(C) includes a special
definition of “victim” as it applies to offenses involving
undelivered United States mail:
(C) Undelivered United States Mail.—
(i) In General.—In a case in which
undelivered United States mail was
taken, or the taking of such item was
an object of the offense, or in a case in
which the stolen property received,
transported, transferred, transmitted,
or possessed was undelivered United
States mail, “victim” means (I) any
victim as defined in Application Note
1; or (II) any person who was the
intended recipient, or addressee, of the
undelivered United States mail.
....
(iii) Definition.—“Undelivered United
States mail” means mail that has not
actually been received by the
addressee or the addressee’s agent
(e.g., mail taken from the addressee’s
mail box).
U.S.S.G. § 2B1.1 cmt. n.4(C). Pursuant to the definition set
out in Application Note 4(C), the PSR concluded Gonzalez
Becerra’s offense level should be increased by four levels
because his offense involved the undelivered mail of slightly
less than 250 individuals. Id. § 2B1.1(b)(2)(B).
8 UNITED STATES V. GONZALEZ BECERRA
In his sentencing memorandum, Gonzalez Becerra
mounted a narrow, fact-based challenge to the applicability
of § 2B1.1(b)(2)(B). Gonzalez Becerra recognized the
commentary to § 2B1.1(b)(2)(B) set out two relevant
definitions of the term “victim” and asserted neither
definition applied. He asserted the definition set out in
Application Note 1 did not apply because both parties agreed
his criminal conduct did not give rise to any actual loss. He
asserted the definition set out in Application Note 4(C) did
not apply because
it has never been established that the mail
items in question were in fact items that were
undelivered. It is quite plausible that much if
not all of the mail in question could have been
removed from the trash—after the mail had
been delivered to its intended recipient—
which would also render this enhancement
inapplicable. Given the failure of proof on
this issue, this enhancement should not be
applied.
The entirely fact-based nature of Gonzalez Becerra’s
challenge to the applicability of the definition of “victim” set
out in Application Note 4(C) is confirmed by the transcript of
the sentencing hearing. The district court began the hearing
by setting out the limited parameters of Gonzalez Becerra’s
challenge: “The defense also challenges the conclusion of the
probation officer and the government that there were more
than 50 victims of the offense. He admits that victim in this
context includes any person who was the intended recipient
or addressee of the undelivered mail.” The district court then
rejected Gonzalez Becerra’s fact-based challenge to the
applicability of Application Note 4(C), finding as follows:
UNITED STATES V. GONZALEZ BECERRA 9
He admitted in the plea agreement that he
possessed mail that he knew had been stolen
from the U.S. mail or a mail receptacle. He
also admitted the mail included blank checks,
bills, credit cards, and multiple personal
checks made out to persons or entities.
The authorities found undelivered mail
belonging to nearly 250 people. The items
included 43 credit cards. One could argue
that people sometimes receive credit cards
they don’t actually want and are uninformed
enough about identity theft to just throw them
away. However, a number of victims made
statements establishing that the items at issue
had been stolen, not that they had thrown
them away.
In any event, there were also 140 personal
checks in the names of 32 individual account
holders and blank checks in the names of 15
individual account holders. People do not
throw such things away.
The district court offered the parties a chance to make any
“legal objections” before formal imposition of sentence.
Gonzalez Becerra’s counsel indicated he had none.
III. ANALYSIS
On appeal, Gonzalez Becerra abandons the fact-based
argument against the applicability of § 2B1.1(b)(2) he raised
in the district court. He instead contends the district court
committed legal error when it applied the definition of
10 UNITED STATES V. GONZALEZ BECERRA
“victim” set out in Application Note 4(C) to conclude his
offense involved at least fifty victims. In particular, he
asserts the district court erred in applying the definition from
the commentary because the commentary is inconsistent with
the text of § 2B1.1(b)(2).
Because the record makes clear the legal issue Gonzalez
Becerra advances was not raised below, he can only obtain
relief on appeal by demonstrating the district court committed
plain error. United States v. Tafoya-Montelongo, 659 F.3d
738, 741–42 (9th Cir. 2011). “Relief for plain error is
available if there has been (1) error; (2) that was plain;
(3) that affected substantial rights; and (4) that seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings.” Id. at 741 (quotation omitted). “An
error is plain if it is clear or obvious under current law. An
error cannot be plain where there is no controlling authority
on point and where the most closely analogous precedent
leads to conflicting results.” United States v. De La Fuente,
353 F.3d 766, 769 (9th Cir. 2003) (citation omitted). Under
this standard, Gonzalez Becerra cannot demonstrate an error,
let alone an error that is plain. Accordingly, it is unnecessary
to consider whether he has carried his burden of
demonstrating the alleged error affected his substantial rights
or seriously affected the fairness or integrity of his sentencing
proceeding. United States v. Vonn, 535 U.S. 55, 62–63
(2002) (placing upon the defendant-appellant the burden of
demonstrating the existence of the third and fourth prongs of
plain error review); United States v. Gowadia, 760 F.3d 989,
996 (9th Cir. 2014) (holding it is unnecessary to reach the
third and fourth prongs of plain error review when “[t]here
was no error . . . , let alone plain error”).
UNITED STATES V. GONZALEZ BECERRA 11
Gonzalez Becerra asserts § 2B1.1 is a fraud guideline and,
within that context, the term “victim” is commonly
understood to mean someone who has suffered a monetary
loss. Section 2B1.1 is not simply a fraud guideline. In 2001,
the Sentencing Commission undertook a major rewrite of the
guideline provisions relating to property crimes in response
to concerns that the numerous guideline provisions then
applicable to such crimes created undue complexity and
unwarranted sentencing disparity. See U.S.S.G. app. C,
amend. 617. To alleviate these concerns, the Sentencing
Commission created a guideline provision consolidating the
“theft, property destruction, and fraud guidelines.” Id. To
reflect the large number of offenses covered by § 2B1.1,3 the
general definition of “victim” in Application Note 1 includes
the two most common types of victims of federal and
assimilative property crimes—individuals who suffered
physical4 or pecuniary harm. Given the wide applicability of
§ 2B1.1, the commentary quite reasonably includes a rule
applicable to a certain subset of property crimes (theft of
undelivered United States mail) and an additional type of
victim (intended recipients of that undelivered mail).
3
See U.S.S.G. § 2B1.1 cmt. (listing large number of federal statutory
provisions to which the guideline is applicable); U.S.S.G. app. C, amend.
617 (noting that the guidelines also apply to “offenses that arise under the
Assimilative Crimes Act”); see also United States v. Reed, 734 F.3d 881,
885 (9th Cir. 2013) (describing how the Assimilative Crimes Act borrows
“state law to fill gaps in the federal criminal law that applies on federal
enclaves” and, in doing so, “establishes uniformity in a state’s prohibitory
laws where such conduct is not made penal by federal statutes”
(quotations and citations omitted)).
4
This definition in Application Note 1, standing alone, demonstrates the
falsity of Gonzalez Becerra’s assertion that § 2B1.1 was only intended to
cover fraud victims who suffered pecuniary harm. Not surprisingly, this
provision is not addressed in Gonzalez Becerra’s brief.
12 UNITED STATES V. GONZALEZ BECERRA
U.S.S.G. app. C, amend. 617. In light of the breadth of
§ 2B1.1, it is impossible to give credence to Gonzalez
Becerra’s assertion this court should embrace one, and only
one, narrow aspect of the definitions of “victim” set out in the
commentary to the guideline.
Having rejected Gonzalez Becerra’s assertion that courts
must define the term “victim” solely against a contextual
background of crimes involving fraud, it is easy to reject his
assertion that the term “victim” is tied exclusively to
pecuniary loss. Dictionaries, both legal and nonlegal,
recognize the term encompasses individuals who have
suffered harm to not only their financial interests, but also to
dignitary or proprietary interests and physical well-being.
Black’s Law Dictionary 1703 (9th ed. 2009) (defining
“victim” as a “person harmed by a crime, tort, or other
wrong”); Webster’s Third New Int’l Dictionary 2550 (1993)
(defining “victim” as, inter alia, “someone tricked, duped, or
subjected to hardship”).5 An individual deprived of
undelivered United States mail most certainly suffers harm,
whether or not the harm is directly tied to a pecuniary loss.
The Sentencing Commission’s recognition of this fact in
Application Note 4(C) is not remotely inconsistent with the
ordinary understanding of the term “victim.” See U.S.S.G.
app. C, amend. 617 (“A special rule is provided for
application of the victim enhancement for offenses involving
United States mail because of (i) the unique proof problems
5
Consistent with these dictionary definitions, status as a victim is
commonly understood to embrace an individual deprived of property with
nominal economic value, but significant sentimental value. Thus, it
appears the term “victim” includes significantly more individuals than
recognized in the application notes to § 2B1.1. Gonzalez Becerra’s
assertion that the commentary to § 2B1.1 expanded the definition beyond
its ordinary meaning is unpersuasive.
UNITED STATES V. GONZALEZ BECERRA 13
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.”).
Finally, Gonzalez Becerra’s arguments on appeal find no
support in case law. Application Note 4(C) has been applied,
without any question, by numerous Circuit Courts of Appeals.
See, e.g., United States v. Moore, 733 F.3d 161, 163 & n.5
(5th Cir. 2013) (citing Application Note 4(C) for proposition
that “[w]hen mail is unlawfully taken, each intended recipient
of that mail is deemed to be a victim”); United States v.
Otuya, 720 F.3d 183, 191-92 (4th Cir. 2013) (rejecting
argument that individuals were not victims because they
suffered no pecuniary harm by noting the individuals
qualified as victims because their mail was stolen); United
States v. Leach, 417 F.3d 1099, 1106 (10th Cir. 2005) (citing
Application Note 4(C) for proposition that in a case in which
undelivered United States mail was taken, the term “victim”
includes “any person who was the intended recipient, or
addressee, of the undelivered United States mail” (quotation
omitted)).6 No Circuit Court of Appeals has ever questioned
6
Gonzalez Becerra claims the Tenth Circuit’s decision in Leach
“implicitly acknowledge[s] [the] principle” that “[t]here must be actual
loss before there are actual victims.” Appellant’s Brief at 10 n.4. Leach
actually holds that in the case of stolen mail, the term “victim” includes
“any person who was the intended recipient, or addressee, of the
undelivered United States mail.” 417 F.3d at 1106 (quotation omitted).
The Tenth Circuit held there were “eight discernable victims,” id. at 1107
n.11, because “[a]t the time of her arrest, Defendant was in possession of
mail addressed to eight separate people or entities.” Id. at 1106. The
reason the court in Leach declined to count some individuals as “victims”
for purposes of Application Note 4(C) was because they were the senders
of the mail, not the intended recipients or addressees, as required by the
14 UNITED STATES V. GONZALEZ BECERRA
whether Application Note 4(C) is consistent with
§ 2B1.1(b)(2).7 This is true even though the relevant
commentary was added to the guidelines in 2001. U.S.S.G.
app. C, amend. 617.
IV. CONCLUSION
The special definition of the term “victim” set out in
Application Note 4(C) regarding the theft of undelivered mail
is perfectly consistent with the use of that term in the text of
§ 2B1.1. Thus, the district court did not err, let alone plainly
err, in increasing Gonzalez Becerra’s offense level by four
levels because he possessed the stolen mail of at least fifty
individuals. U.S.S.G. § 2B1.1(b)(2)(B). Accordingly, the
sentence imposed by the district court is hereby
AFFIRMED.
application note. Id. Far from supporting Gonzalez Becerra’s position,
Leach directly contradicts it.
7
The cases cited in Gonzalez Becerra’s brief are not to the contrary.
Neither United States v. Armstead, 552 F.3d 769, 780 (9th Cir. 2008), nor
United States v. Pham, 545 F.3d 712, 716 (9th Cir. 2008), involve stolen
mail. Instead, both simply involve the situation of identity theft that did
not lead to monetary loss. In those circumstances, Application Note 1
makes clear the individuals who had their identities stolen are not
“victims” for purposes of § 2B1.1(b)(2).