Eleventh Circuit Rules Number-of-Victims Sentencing Enhancement Inapplicable to Single-Package Theft

Eleventh Circuit Rules Number-of-Victims Sentencing Enhancement Inapplicable to Single-Package Theft

Michael Ackerman*

On April 23, 2016, Jhonathan Tejas approached a United States Postal Service (“USPS”) delivery vehicle and requested a package from the mail carrier. United States v. Tejas, No. 16-16336, 2017 WL 3611975, at *1 (11th Cir. Aug. 23, 2017). When the carrier refused, Tejas shoved the carrier out of the way and took the package from the delivery vehicle’s front seat. Id. At trial, a jury in the United States District Court for the Southern District of Florida found Tejas guilty of theft of mail in violation of 18 U.S.C. § 1708. Tejas, 2017 WL 3611975, at *1.

A probation officer applied three sentencing enhancements in his pre-sentence investigation report (“PSR”), one of which, § 2B1.1(b)(2)(A)(i) of the U.S. Sentencing Guidelines, required the offense to involve ten or more victims. Id. The probation officer justified his inclusion of this number-of-victims enhancement based on a “special rule” found in the commentary to § 2B1.1. Id. This “special rule” states that theft of undelivered mail from a delivery vehicle “shall be considered to have involved at least 10 victims.” Id. (quoting U.S. Sentencing Guidelines Manual § 2B1.1 cmt. n.4(C)(ii)(I) (U.S. Sentencing Comm’n 2016)). The government alleged that because Tejas stole from a USPS delivery vehicle, the special rule applied, and therefore, the number-of-victims enhancement was triggered regardless of how many victims were actually involved. Tejas, 2017 WL 3611975, at *1. Based on these enhancements, the PSR recommended a sentence range of 12 to 18 months imprisonment. Id. The district court agreed with the probation officer’s use of the special rule despite acknowledging that Tejas only took one piece of mail and sentenced Tejas to 366 days’ imprisonment. Id. at *2. Tejas appealed, claiming the trial court erred in its application of the enhancements and in its refusal to provide a sentence reduction for acceptance of responsibility. Id.

On appeal, the Eleventh Circuit affirmed the lower court’s use of two other sentencing enhancements and its rejection of a sentence reduction. Id. at *3-5. However, the Eleventh Circuit found the district court erred by applying the enhancement for ten or more victims. Id. at *2-3. The Court held that the special rule could not be used to bring the victim count to ten when the sentencing court knew the defendant actually harmed fewer people. Id. The Court admitted that a rule setting the number of victims at ten may be reasonable in scenarios where the actual statistic is unknown. Id. at *3. However, the Court limited the rule’s applicability in order to keep sentences in line with the plain meaning of the number-of-victims enhancement guideline. Id. at *2-3.

The Court explained that the Sentencing Commission included the special rule in the commentary for three reasons: (1) the difficulty the government faces in proving the identities of victims of undelivered mail theft; (2) the non-monetary losses involved in mail theft which are difficult to quantify; and (3) the importance of preserving the integrity of the postal system. Id. at *2 (citing U.S. Sentencing Guidelines Manual app. C, amend. 617 (U.S. Sentencing Comm’n 2016)). The Court found that the first and second reasons were not issues in this case because the court knew Tejas stole only one specific package and thus harmed two people at most, the mail carrier and the intended recipient Tejas, 2017 WL 3611975, at *3. Though the government correctly asserted that the third justification, preserving the integrity of the postal system, was applicable to this offense, the Eleventh Circuit found this interest insufficient to allow a rule in the comments to trump the guideline’s plain meaning. Id. 

The Court stated that § 2B1.1(b)(2)(A)(i) cannot apply by its own terms because there was no dispute that the offense actually involved fewer than ten victims. Id. Consequentially, the special rule’s ten-victim determination is inconsistent with the guideline’s plain text and must be disregarded in this instance. Id. Therefore, the Eleventh Circuit vacated the district court’s sentence and remanded with instructions to not apply the ten-victim enhancement. Id. at *5.

*Michael Ackerman is a member of the 2017-2018 Editorial Board for Georgia Law Review.

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