Presumption of No More than 50 Victims for Theft of USPS Mail from 1 or More Receptacle

United States v. Moore, No. 12-10630 (Oct. 23, 2013) (Wiener, Dennis, Owen)

How many people are victimized when someone steals mail from a U.S. Postal Service collection box?  According to the majority’s interpretation of Application Note 4(C)(ii)(I) to U.S.S.G. § 2B1.1, a presumption of 50 victims applies regardless of how many collection boxes, relay boxes, satchels, carts, or delivery vehicles were involved.  A court can determine that there were more than 50 victims, but only based on probative evidence.

Here, Moore took mail from 6 collection boxes, so the district court calculated 300 victims and applied a 6-level enhancement.  The Fifth Circuit vacated and remanded after concluding the court could only presume 50 victims, even though Moore took mail from 6 collection boxes.  Thus, only a 4-level enhancement applied.  The case was remanded for resentencing.

Judge Owen dissented, arguing that the plain language of the Guidelines supports the district court’s victim calculation.