Note Requiring Application of Abuse-of-Trust Enhancement to Postal Employees Who Steal Mail Doesn't Apply to Private Couriers

United States v. Ikechukwu, No. 06-11239 (5th Cir. July 10, 2007) (Higginbotham, Barksdale, Garza)

Ikechukwu worked for Telesis Courier Service. "Part of his job was to pick-up a pouch of misaddressed or misdirected mail pieces from a PNC Bank lockbox operation and take those mail pieces to the post office." Complaints about stolen and counterfeited checks prompted an investigation into the lockbox operation. Ikechukwu was arrested in a sting operation, and admitted to stealing mail from the pouches. He was ultimately convicted of possession of stolen mail, in violation of 18 U.S.C. § 1708.

At sentencing, the district court applied a 2-level abuse-of-trust enhancement under U.S.S.G. §3B1.3.

The district court did not apply the enhancement based on Application Note 1, which defines “a position of public or private trust” as a position “characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference).” Id. at comment. (n.1). Rather the district court applied the enhancement based on Application Note 2(A), which states, “Notwithstanding Application Note 1, or any other provision of this guideline, an adjustment under this guideline shall apply to . . . [a]n employee of the United States Postal Service who engages in the theft or destruction of undelivered United States mail.” Id. at comment. (n.2(A)).

Ikechukwu appealed his sentence, arguing that Application Note 2(A) applies only to actual postal employees, not to employees of private courier services. The district court had rejected that argument, reasoning that the purpose of the postal employee exception to the general abuse-of-trust provisions is to deter mail theft. But the court of appeals agreed with Ikechukwu. It held that the plain terms of Application Note 2(A) apply only to postal employees. "Had the Sentencing Commission intended this Application Note to reach all individuals who professionally handle United States mail, such as couriers or mail room employees, it could have said so." The court also noted that

the purpose of Application Note 2(A) is to clarify that all employees of the United States Postal Service are, by the nature of their employment status, in a per se position of trust as related to the theft or destruction of undelivered United States mail. A courier, such as the defendant, is not, by the nature of his employment status, in a per se position of trust as related to the theft or destruction of undelivered United States mail.

That's not to say that the abuse-of-trust enhancement can never apply to an employee of a private courier service. It just means that the regular abuse-of-trust analysis applies to someone like that, without the per se rule that applies to postal employees.

One final point: the court observed that the district court might have thought Ikechukwu was a contract employee of the postal service. But since there was no evidence in the record to support that, and because the Government didn't argue that in the district court or on appeal, the court didn't decide whether contract postal employees would be subject to Application Note 2(A).