F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

August 3, 2005

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

No. 04-5117

SHERMA LEE LEACH,

Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 03-CR-114-H) *
Paul D. Brunton, Julia OConnell, Barry L. Derryberry, Office of the Federal
Public Defender, Tulsa, Oklahoma, for Defendant-Appellant.
David E. OMelia, Kenneth P. Snoke, Office of the United States Attorney, Tulsa,
Oklahoma, for Plaintiff-Appellee.
Before EBEL, McKAY and HENRY, Circuit Judges.

EBEL, Circuit Judge.

After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*

Sherma Lee Leach (Defendant) pled guilty to theft of mail by a postal

employee, a violation of 18 U.S.C. 1709. After accepting Defendants plea and
conducting a sentencing hearing, the district court sentenced Defendant to thirtyseven months imprisonment, followed by three years supervised release. 1 On
appeal, Defendant challenges the district courts application of the United States
Sentencing Guidelines as well as the constitutionality of her sentence under
United States v. Booker, 125 S. Ct. 738 (2005). Exercising jurisdiction over this
appeal under 28 U.S.C. 1291 and 18 U.S.C. 3742, we REVERSE Defendants
sentence and REMAND for proceedings consistent with this Opinion.
I.

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.
1

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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

Oklahoma charged Defendant by information with one count of theft of mail by a

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postal employee, a violation of 18 U.S.C. 1709. 2 On December 4, 2003,

Defendant petitioned the district court to enter a plea of guilty to the charge
against her. In her written petition, Defendant expressly admitted to stealing
eighty pieces of mail, but made no admission as to the amount of funds that were
embezzled or the number of victims involved. Defendant also expressly waived
her right to a jury trial. The district court held a hearing the same day, accepted
the guilty plea, and set sentencing for March 5, 2004.
Between the time of Defendants guilty plea and her sentencing, the
Supreme Court issued its decision in Blakely v. Washington, 124 S. Ct. 2531
(2004). 3 Blakely invalidated the State of Washingtons sentencing scheme on

Title 18, U.S.C. 1709 provides:

Whoever, being a Postal Service officer or employee, embezzles any

letter, postal card, package, bag, or mail, or any article or thing
contained therein entrusted to him or which comes into his
possession intended to be conveyed by mail, or carried or delivered
by any carrier, messenger, agent, or other person employed in any
department of the Postal Service, or forwarded through or delivered
from any post office or station thereof established by authority of the
Postmaster General or of the Postal Service; or steals, abstracts, or
removes from any such letter, package, bag, or mail, any article or
thing contained therein, shall be fined under this title or imprisoned
not more than five years, or both.
Although Defendant was originally scheduled for sentencing on March 5,
2004, the district court granted a number of continuances. The last of these
continuances, granted on June 18, 2004, stated that sentencing would be held in
approximately three weeks. Six days later, on June 24, 2004, the Supreme Court
issued Blakely. 124 S. Ct. at 2531.
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Sixth Amendment grounds because the scheme permitted judges to increase a

criminal defendants sentence based on facts neither admitted by a defendant nor
proven to a jury. Id. at 2536-38. Because Blakely significantly changed the legal
landscape of criminal sentencing, the district court permitted the parties to file
supplemental briefs discussing the cases applicability to the federal sentencing
guidelines.
At this point in the proceedings, there were two disputed factual issues
relevant to sentencing: the amount of loss suffered and the number of victims.
The district court offered Defendant an opportunity to withdraw her pre-Blakely
guilty plea and waiver of jury trial. Defendant declined the offer, arguing that the
earlier waiver of the right to a jury trial applied only to the right to have a jury
determine guilt or innocence, not the right to have a jury determine facts relevant
to sentencing. 4 Because Blakely had not been decided at the time Defendant
entered her waiver of the right to a jury trial, Defendant argued that she could not
have knowingly waived her right under Blakely to a jury determination of facts
relevant to sentencing.

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

Defendant does not challenge this enhancement on appeal.

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Pursuant to U.S.S.G. 2B1.1(b)(1)(F), Defendants offense level was enhanced

by ten levels, bringing her total offense level to eighteen. Second, the district
court found beyond a reasonable doubt that Defendants crime involved fifty or
more victims and enhanced her offense level by four levels pursuant to U.S.S.G.
2B1.1(b)(2)(B).
Finally, the court applied a three-level reduction for acceptance of
responsibility, see U.S.S.G. 3E1.1(a)-(b), bringing the total offense level to
nineteen. With Defendants criminal history category of I, the appropriate
guidelines range was 30-37 months imprisonment. The district court imposed the
highest possible sentence of thirty-seven months, noting that such a sentence was
appropriate because Defendant had abused a position of trust and it was likely
that there were many more unidentified victims. The instant appeal followed.
III.

Discussion
On appeal, Defendant raises three issues: First, she challenges the district

courts application of U.S.S.G. 2B1.1(b)(2)(B), arguing that the district court

incorrectly concluded that Defendants crime involved fifty or more victims.
Second, she argues that the district court incorrectly applied U.S.S.G.
2B1.1(b)(1)(F) by miscalculating the amount of loss attributable to Defendant.
Finally, Defendant argues that the enhancements to her sentence under U.S.S.G.
2B1.1(b)(2)(B) and (b)(1)(F) violated her Sixth Amendment right to trial by jury
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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).
6

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1.

Waiver 7

A waiver is the intentional relinquishment or abandonment of a known right

or privilege. United States v. Chavez-Salais, 337 F.3d 1170, 1172-73 (10th Cir.
2003). Here, when submitting her petition to plead guilty, Defendant also
executed a written waiver of her Sixth Amendment right to a jury trial which read
as follows:
Comes now the undersigned defendant having been fully apprised of
my rights, do hereby waive a jury and agree to try the above styled
and numbered criminal proceedings to the Court as provided by Rule
23(a), Rules of Criminal Procedure.
In addition, Defendants petition to plead guilty contained the following statement
regarding her waiver of constitutional rights:
WAIVER OF CONSTITUTIONAL RIGHTS
I know I have the right to plead NOT GUILTY to any
offense charged against me. If I plead NOT GUILTY I know the
Constitution guarantees me . . . the right to a speedy and public trial
by jury . . . .
In regard to my right to a jury trial, I know I am the only
person who can waive, that is give up, that right. I also fully
understand that if I have a trial by a jury, I have the right of the
assistance of an attorney; also the right to confront and crossexamine witnesses against me; and the right not to be compelled to
incriminate myself. Furthermore, I understand that to convict me, all
12 jury members would have to agree that I am GUILTY.
As an initial matter, we note that our precedent forecloses Defendants
contention that constitutional Booker is structural error. United States v. Dowlin,
408 F.3d 647, 668-69 (10th Cir. 2005).
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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

Because Defendant waived, without qualification, her right to a jury trial in

her guilty plea, we conclude that she may not now assign as error the failure of
the district court to afford her a jury determination of facts relevant to sentencing.
We will, however, consider Defendants two points of error related to the district
courts application of the guidelines.
B.

Application of U.S.S.G. 2B1.1(b)(1)(F): Loss attributable to

Defendant

Based on evidence presented at the sentencing hearing, the district court

found beyond a reasonable doubt that the monetary loss attributable to
Defendants conduct was $134,571.34. This finding permitted the court to apply
a sentencing enhancement under U.S.S.G. 2B1.1(b)(1)(F), which permits a tenlevel increase in a defendants offense level if the loss suffered exceeds $120,000
but is not more than $200,000. On appeal, Defendant argues that the district
court miscalculated the loss attributable to her conduct and therefore erroneously
applied the guideline enhancement. When reviewing a district courts application
of the sentencing guidelines, we review legal questions de novo and any factual
findings for clear error, giving due deference to the district courts application of

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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).
8

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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.

Application of U.S.S.G. 2B1.1(b)(2)(B): Number of victims

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

Under this guideline, the term Person includes individuals as well

corporate entities. U.S.S.G. 2B1.1 cmt. n.1.
9

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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.
10

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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

constitutional error under Booker nor an improper enhancement based on the

amount of loss. However, the district courts error in the application of U.S.S.G.
2B1.1(b)(2) requires a reversal. Accordingly, we REVERSE Defendants
sentence and REMAND for proceedings consistent with this opinion.
We cannot conclude that this error was harmless. See Fed. R. Crim. P.
52(a). Without these 200 individuals, Defendants crime involved only eight
discernable victims. If this were the case, no enhancement based on the number
of victims would be appropriate under the guidelines. See U.S.S.G. 2B1.1(b)(2)
(requiring at least 10 victims for an enhancement). Without the enhancement, the
maximum sentence Defendant could have received would have been twenty-four
months imprisonment, thirteen months less than the thirty-seven month sentence
she actually received. In effect, the district courts error increased Defendants
maximum sentence by more than fifty percent.
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