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Filed: Patrick Fisher
Filed: Patrick Fisher
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
August 3, 2005
PATRICK FISHER
Clerk
No. 04-5117
Factual Background
Defendant was employed by the United States Postal Service (USPS) in
Bartlesville, Oklahoma, as a mail sorter between 1999 and 2003. During this
time, Defendant had contact with large volumes of mail addressed to the Voice of
the Martyrs (VOM), a nonprofit organization that assists Christians around the
world who are being persecuted for their faith. The group finances operations
through charitable donations sent to its headquarters in Bartlesville.
Defendant was also fined $2,000, ordered to pay restitution in the amount
of $300, and subjected to a special assessment of $100. On appeal, Defendant
does not challenge these aspects of her sentence.
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During the same period Defendant was employed with the USPS, VOM
began receiving reports from its donors that checks the donors had mailed to
VOM were not being cashed. In accordance with its established internal
procedure, VOM compiled a log, recording each time it was notified that a
donation had not been cashed. VOM also notified postal inspectors, who began a
formal investigation at the Bartlesville post office in July 2003.
The investigators observed Defendant hide VOM mail in a post office box
and return after her shift to retrieve the mail by accessing the post office box from
the lobby. During one of Defendants trips to the post office box, postal
inspectors apprehended Defendant, who was carrying 31 pieces of mail addressed
to VOM as well as mail addressed to several other charitable organizations.
Defendant admitted to postal inspectors that she had been stealing mail for five or
six years and consented to a search of her residence.
The search of Defendants residence yielded an additional forty-five pieces
of discarded mail, most of which were addressed to VOM. The total amount of
cash and checks found in Defendants possession (both on her person and at her
residence) on the date of her arrest was $4,707.
II.
Procedural history
On August 23, 2003, the United States Attorney for the Northern District of
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Of course, at this point, the Supreme Court had not established such a right
in federal criminal prosecutions. See Blakely, 124 S. Ct. at 2538 n.9.
Nevertheless, the district court held as an initial matter that the rationale in
Blakely applied to the federal sentencing guidelines and required any judicial
fact-finding made by federal courts during sentencing to comply with the Sixth
Amendment.
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After considering this argument, the district court held that Defendants
pre-Blakely waiver of a jury trial applied both to the guilt-innocence and
sentencing phases of the proceedings. That is, the district court held that the
Sixth Amendment right to a jury trial was not severable between guilt-innocence
and sentencing phases, and that a waiver as to one was a waiver as to the other.
The district court then concluded that, in light of Defendants waiver, it could
make factual findings without violating the Sixth Amendment.
Out of an abundance of caution, however, the district court opted to hold a
full-blown evidentiary hearing in accordance with the Federal Rules of Evidence
and required the Government to prove facts regarding loss amount and number of
victims beyond a reasonable doubt.
Under the sentencing guidelines, Defendants conviction under 18 U.S.C.
1709 warranted a base offense level of six. See U.S.S.G. 2B1.1(a)(2) (2003).
The district court then imposed a two level enhancement for abuse of a position
of trust based on admissions contained in Defendants guilty plea petition. 5 See
U.S.S.G. 3B1.3.
Next, the court applied two enhancements based on testimony presented at
the evidentiary hearing. First, the district court found beyond a reasonable doubt
that the amount of loss attributable to Defendants conduct was $134,571.34.
5
Discussion
On appeal, Defendant raises three issues: First, she challenges the district
because the district court engaged in unconstitutional fact finding. See Blakely,
124 S. Ct. at 2536-38, Booker, 125 S. Ct. 755-56 (applying Blakelys holding to
the federal sentencing guidelines). Because the last of these three issues has the
potential to be dispositive, we consider it first.
A.
Booker/Blakely violation
In Booker, the Supreme Court held that for federal sentences, [a]ny fact
(other than a prior conviction) which is necessary to support a sentence exceeding
the maximum authorized by a plea of guilty or a jury verdict must be admitted by
the defendant or proved to a jury beyond a reasonable doubt. 125 S. Ct. at 756.
Defendant raises constitutional Booker error, 6 arguing that her Sixth Amendment
rights were violated when the district court made factual findings regarding the
amount of loss and the number of victims that enhanced her offense level by
fourteen points.
A defendants right to a jury trial at sentencing, just like the right to a jury
trial at the guilt-innocence phase, can be voluntarily waived. Here, defendants
guilty plea (which was entered prior to the Supreme Courts decisions in Blakely
and Booker) contained such a waiver. Our task, then, is to determine whether this
waiver applies to Defendants rights under Booker.
See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir.
2005) (en banc) (describing the difference between constitutional and nonconstitutional Booker error).
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1.
Waiver 7
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On appeal, Defendant argues that since her initial waiver was entered
before the Supreme Court decided Booker or Blakely, she could not have waived
jury trial rights created by those decisions because they did not yet exist. We
disagree. As the Sixth Circuit has recognized,
[p]lea agreements . . . may waive constitutional or statutory rights
then in existence as well as those that courts may recognize in the
future. . . .
[W]here developments in the law later expand a right that a
defendant has waived in a plea agreement, the change in law does not
suddenly make the plea involuntary or unknowing or otherwise undo
its binding nature.
United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005), petition for cert.
filed (June 9, 2005) (No. 04-10620). Citing Bradley, this court has held that a
waiver of appellate rights was not rendered unknowing or involuntary by the
Supreme Courts subsequent issuance of Booker or Blakely. United States v.
Green, 405 F.3d 1180, 1190 (10th Cir. 2005). Similarly, we do not believe these
decisions should negate waivers of other constitutional rights, such as the right to
a trial by jury.
Furthermore, the record indicates that after Blakely was decided, the
district court offered Defendant an opportunity to withdraw her guilty plea and
waiver of jury trial rights, an opportunity Defendant refused. If there was any
doubt as to the scope or voluntariness of Defendants pre-Blakely waiver, that
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doubt was erased when Defendant, having full knowledge of Blakely, declined the
offer to withdraw her plea.
2.
Conclusion
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the guidelines to the facts. United States v. Doe, 398 F.3d 1254, 1257 (10th Cir.
2005). 8
In calculating the loss attributable to defendant, the district court need
only make a reasonable estimate of the loss. U.S.S.G. 2B1.1 cmt. n.3(C). The
sentencing judge is in a unique position to assess the evidence and estimate the
loss based upon that evidence. Id. For this reason, the courts loss determination
is entitled to appropriate deference. Id. (citing 18 U.S.C. 3742(e) and (f)).
Here, the district court relied on an exhibit furnished by VOM which
purported to estimate the amount of contributions lost from 1999 to 2003, the
period during which Defendant was a USPS employee. During this time, each
time a check was reported uncashed, VOM (acting pursuant to its internal policy)
made an entry into a spreadsheet. This report contained the date each undelivered
check was reported, the check number, the donors name and address, the amount
of the donation, and the estimated date the donation was mailed. The total
number of donations reported lost during this period was $253,555.42 (the gross
loss).
However, it appears that some of the donors who reported uncashed checks
sent in replacement donations when they were informed that their original
A district courts loss calculation at sentencing is a factual question we
review under the clearly erroneous standard. United States v. Levine, 970 F.2d
681, 690 (10th Cir. 1992).
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donations had not been received by VOM. A donation was categorized by VOM
as a replacement donation when it was (1) the same amount as the original
donation; (2) received within four months of the notification that the original
donation did not arrive; and (3) not part of a fixed program of systematic giving.
These replacement donations totaled $134,571.34.
The district court concluded that the Government had shown by a
preponderance of the evidence that the loss attributable to Defendant was
equivalent to VOMs gross loss of $253,555.42. However, the court chose to
require the Government to prove the loss attributable to Defendant beyond a
reasonable doubt, and it concluded that the Government had not presented enough
evidence that VOM actually suffered a loss in this amount. Instead, the court
relied upon evidence of replacement checks in determining the loss attributable to
Defendant:
The Court finds that the fact that a contributor sent a replacement
check in the same amount after learning that the original check did
not arrive establishes beyond a reasonable doubt that the check had
been sent in the first place. Thus, the loss to VOM established
beyond a reasonable doubt is $134,571.34.
Defendant assails this evidence as merely the guesswork of VOM
employees and argues that the district court should not have relied upon it in
making its sentencing determination. We disagree. Although the replacement
donations were not, in a strict sense, a measure of the money Defendant caused
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VOM to lose (since VOM ultimately received these funds), the donations are
evidence of the loss Defendant intended VOM to suffer. See U.S.S.G. 2B1.1
cmt. n.3(A) (loss is the greater of actual loss or intended loss).
Therefore, after considering all of the evidence in the record, we cannot say
that the district court clearly erred in its calculation of the loss attributable to
Defendant. As a result, the courts application of the enhancement under
U.S.S.G. 2B1.1(b)(1)(F) was proper.
C.
Defendant also challenges the district courts conclusion that her offense
involved fifty or more (but less than 250) victims, which justified a four-level
enhancement, pursuant to U.S.S.G. 2B1.1(b)(2)(B). We review the courts legal
determinations de novo and its factual finding for clear error. Doe, 398 F.3d at
1257.
The commentary to U.S.S.G. 2B1.1 defines a Victim as any person
who sustained any part of the actual loss determined under subsection (b)(1); or
any individual who sustained bodily injury as a result of the offense. 9 U.S.S.G.
2B1.1 cmt. n.1. In a case in which undelivered United States mail was taken,
victim means (I) any victim as defined in Application Note 1; or (II) any
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person who was the intended recipient, or addressee, of the undelivered United
States mail. Id. cmt. n.4(B)(i).
At the time of her arrest, Defendant was in possession of mail addressed to
eight separate people or entities. 10 Based on VOMs exhibit, however, the district
court found that over 200 people reported undelivered donations and incurred the
expense of writing and mailing a replacement check. These expenses, the court
concluded, qualified the senders of the uncashed checks as victims under
U.S.S.G. 2B1.1. We disagree.
As an initial matter, it is undisputed that none of these 200 people were
intended addressees of the undelivered mail, nor did they suffer any bodily injury
as a result of the offense. Cf. U.S.S.G. 2B1.1 cmt. n.1, 4(B)(i)(II). Thus, the
only relevant definition of Victim is any person who sustained any part of the
actual loss determined under subsection (b)(1)[.] Id. cmt. n.1 (emphasis added).
Actual loss is defined as the reasonably foreseeable pecuniary harm that
resulted from the offense. Id. cmt. n.3(A)(i). While we agree that the cost of
sending in replacement checks was a reasonably foreseeable pecuniary harm of
Defendants conduct, this harm was not included as part of the actual loss
determined under subsection (b)(1). Id. cmt. n.1. There was no testimony
The envelopes were addressed to VOM, Prayer by Letters, Saint Matthews
Church, Southwest Indian Childrens Fund, Word of Faith, Robert Tilton
Ministries, and two private residences in Bartlesville.
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presented at the sentencing hearing regarding the type and amount of loss suffered
by donors. Rather, the courts calculation of the actual loss was merely an
estimation of the amount of funds Defendant intended to take from VOM. That
calculation did not include any estimation of replacement costs incurred by
donors who sent in additional checks.
Because the loss suffered by these 200 donors was not part of the actual
loss determined by the court under U.S.S.G. 2B1.1(b)(1)(F), the district court
erred by counting the donors as victims for the purposes of an enhancement
under U.S.S.G. 2B1.1(b)(2). 11
IV.
Conclusion
We conclude that Defendants sentence is neither infected with
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