Submitted, Pasadena, California: March 3, 2015 [*].
Appeal from the United States District Court for the Central District of California. D.C. No. 2:07-cr-00812-DSF-1. Dale S. Fischer, District Judge, Presiding.
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 § 2B1.1, and the district court did not err in increasing the defendant's offense level pursuant to § 2B1.1(b)(2)(B).
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.
Before: Michael R. Murphy,[**] Ronald M. Gould, and Richard C. Tallman, Circuit Judges. Opinion by Judge Murphy.
MURPHY, Circuit Judge:
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).
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, 113 S.Ct. 1913, 123 L.Ed.2d 598 (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 ...