Sunday, February 17, 2013

Case o' The Week: Two Sizes Too Small -- May, Relevant Conduct, and "Foreseeable Pecuniary Harm"

All the Whos in Whoville forgave the Grinch for stealing their Christmas presents, and celebrated the season with a feast of Roast Beast in a rosy glow of forgiveness and reconciliation.

Fortunately for the Grinch, Whoville lies outside of the jurisdiction of the United States Sentencing Commission. United States v. May, 2013 WL 503338 (9th Cir. Feb. 12, 2013), decision available here.

Players: Decision by visiting DJ Quist, joined by Judges Fletcher and Fisher. Hard fought appeal by W.D. Wa. AFPD Linda Sullivan and Research & Writing Attorney Alan Zarky.

Facts: Jason and Jolynn May pled guilty to receipt of stolen mail, and to stealing mail on December 24. Id. at *1 (emphasis added). At least four times in December, the couple had stolen mail packages from Vancouver homes. Id. They were arrested on Christmas Eve with stolen mail in their car and apartment. Id. 

Beginning on the 20th, the local Post Office changed its delivery policy to require signatures for delivery, or customer pick-up at the post office. Id. This policy remained in effect until December 24. 

At sentencing, the district court increased the guideline range by eight offense levels, for loss of roughly $68,000 in post office expenses associated with the new delivery policy. Id. at *2. [There was only $2,104 in customer mail loss]. Id..

Issue(s): “[T]he Mays argue that the district court erred by including these expenses as loss, for purposes of both sentencing and restitution . . . .” Id. at *1. “The question [for relevant conduct]. . . is whether it was reasonably foreseeable that USPS would react to their thefts by switching its parcel delivery policy to customer pick-up to ensure that its customers received their parcels.” Id. at *3.  

Held: “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.” Id. at *3.

Of Note: The disappointment from the relevant conduct holding in this case is offset – somewhat – by a good restitution holding. The Ninth rejects restitution for the Post Office because its expenses “did not result from the conduct underlying an offense of conviction.” Id. at *3-*4. 

Sound at odds with the relevant conduct holding above? The different outcomes for the sentencing and restitution challenges are a reminder that “loss” for relevant conduct, and “loss” for restitution, require two very different analyses. For restitution, you look at the specific conduct that is the basis for the conviction. Here, the defendants pled to a single count of stealing mail on the December 24th. Although the Post Office started its new delivery policy on the 20th because of the defendants’ earlier mail mischief, the pair didn’t plead guilty to the earlier mail thefts. Hence the Mays couldn’t owe restitution for a postal policy began the 20th, when their crime of conviction took place on the 24th. Id. at *4.

May nicely illustrates a rich irony of federal sentencing: great precision is demanded for restitution, where money is involved, but we tolerate “close enough” for relevant conduct (when the length of a custodial term is at stake).

How to Use: May tolerates an unwelcome expansion of relevant conduct. The root of this problem is an ’01 amendment to USSG § 2B1.1 – defining loss as the “reasonably foreseeable pecuniary harm that resulted from the offense.” Id. at *3 n.3. Seven years later, the Ninth embraced this expansion in its frustrating Warr decision. See blog entry here.

May builds on the amendment and Warr and tolerates a whopping eight offense-level increase for four days of temporary postal policy. Unfortunately, May is a must-read to understand the potential dangers of unforeseen “foreseeable” guideline loss.
For Further Reading: Much of the injustice of the guidelines arises from their hated relevant conduct principles. For a valuable deconstruction of the relevant conduct guideline, see the article by Amy Baron-Evans and Jennifer Niles Coffin, available here.  

Image of the Grinch from

Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at


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