Case o' The Week: Mail Theft Defendant hit with Murphy's Law - Gonzalez Becerra and Guideline Mail Theft Victims
No monetary loss, no fraud guideline victim?
United States v. Gonzalez Becerra, 2015 WL 1637864 (9th Cir. Apr. 14, 2015), decision available here.
Players: Decision by visiting 10th Senior Circuit Judge Michael Murphy, joined by Judges Gould and Tallman. Hard-fought appeal by CD Cal AFPD Michael Tanaka.
Facts: A traffic stop lead to a search; the search ultimately produced stolen mail from 250 individuals. Id. at *1. Gonzalez Becerra ultimately pleaded guilty to possessing stolen mail. Id. The court imposed a four level bump because the offense involved “50 or more victims” under USSG § 2B1.1(b)(2)(B) – despite the fact that the victims did not sustain any actual monetary loss. Id. The defense made a “narrow, fact-based challenge” to the increase – focusing on whether the mail had in fact been delivered. Id. at *3. On appeal, the defense made a legal argument that that the commentary’s definition of victim in § 2B1.1 was inconsistent with the guideline itself. Id.
Issue(s): “[Gonzalez-Becerra] contends the district court committed legal error when it applied the definition of ‘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 commendatory because the commentary is inconsistent with the text of § 2B1.1.” Id. at *3.
Held: “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 the 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. USSG § 2B1.1(b)(2)(B).” Id. at *5.
Of Note: While the standard of review ultimately doesn’t matter here (see the holding above), the opinion’s musing on plain error is worth a read. Id. at *3 - *4. Judge Murphy goes to fair lengths to characterize the sentencing objections to the guideline in the district court as factual objections – but characterizes the defense’s appellate argument about “victim” as a legal objection. Id. Judge Murphy then concludes, “[b]ecause 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.” Id. at *4. Because “plain error” review is one of the government’s favorite gambits to dodge our appellate arguments, this interpretation triggering that standard is worth reflection (and is a reminder to argue broadly in district court objections).
How to Use: The gist of the defense argument was that § 2B1.1 is a fraud guideline, so the term “victim” should refer to someone who suffered monetary loss. Id. at *4. That argument didn’t get much traction: the Court concludes that the 2001 rewrite of the guideline expanded it beyond the fraud context. Id. Once the Court views § 2B1.1 views more broadly, it finds it “easy to reject [the defense’s] assertion that the term ‘victim’ is tied exclusively to pecuniary loss.” Id. at *5. For better or worse, Gonzalez Becerra contains a fairly in-depth discussion of what constitutes a guidelines “victim” for mail theft cases: dig through the case when your next sad meth addict gets nabbed with a postal key.
For Further Reading: The Ninth isn’t the only one mulling fraud victims. As noted in an early memo, the Sentencing Commission has adopted proposed amendments to § 2B1.1 that purport to focus more on the harm to the victims, rather the number of victims. For a broad and accessible article describing the changed guideline, see the Reuters piece here. For a much more detailed, and very helpful discussion of these (and other) amendments, see the work of the National Sentencing Resource Counsel here.
Image of mail theft from https://www.jeffcitymo.org/police/MailTheftPrevention.html
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org