UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4440

TERRY ALLEN PICKERAL,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

Jackson L. Kiser, Senior District Judge.

(CR-99-110)

Submitted: October 24, 2000

Decided: November 14, 2000

Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion. 

COUNSEL

Randy V. Cargill, MAGEE, FOSTER, GOLDSTEIN & SAYERS,

P.C., Roanoke, Virginia, for Appellant. Robert P. Crouch, Jr., United

States Attorney, Craig J. Jacobsen, Assistant United States Attorney,

Roanoke, Virginia, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Terry Allen Pickeral pled guilty to four counts of presenting an

altered postal money order for payment, see 18 U.S.C. § 500 (1994),

and was sentenced to twenty-one months imprisonment and three

years of supervised release. He challenges his sentence, arguing that

the district court erred in determining that the loss was more than

$2000, see U.S. Sentencing Guidelines Manual § 2F1.1 (1998), and

in ordering him to pay $1222 in restitution, and clearly erred in determining that he engaged in more than minimal planning. See USSG

§ 2F1.1(b)(2)(A). We affirm in part, vacate in part, and remand. 

On November 29, December 1, and December 3, 1999, Pickeral

bought four postal money orders, each worth one dollar, at four different post offices in western Virginia. He altered the amount of each

money order with a ball point pen, and presented each money order

for payment at a different post office. In all, he used eight post offices

in seven cities. Pickeral was successful with two of the altered money

orders, receiving $651 and $571. He failed to receive payment for the

remaining money orders, altered to show amounts of $571 and $671.

The total amount of all four altered money orders was $2464. Using

this amount, the district court added a one-level enhancement for a

loss of over $2000. See USSG § 2F1.1(b)(1)(B). 

On appeal, Pickeral raises two legal questions concerning the

amount of loss. We review the district court’s legal interpretation of

the term "loss" de novo. See United States v. Loayza, 107 F.3d 257,

265 (4th Cir. 1997). Pickeral first contends that he should be accountable only for the amount of the two money orders he cashed on

November 29 and December 1, and the one he presented unsuccessfully on December 3, less two dollars—a total of $1891. He argues

that he did not intend a greater loss because, had he successfully

cashed the first money order he presented for $571 on December 1,

2 UNITED STATES v. PICKERAL
he would not have presented a second money order for the same

amount on the same day. 

Application Note 8 to § 2F1.1 states:

As in theft cases, loss is the value of the money, property,

or services unlawfully taken . . . . Consistent with the provisions of § 2X1.1 (Attempt, Solicitation, or Conspiracy), if

an intended loss that the defendant was attempting to inflict

can be determined, this figure will be used if it is greater

than the actual loss. 

The flaw in Pickeral’s argument is that each presentation of an

altered money order constitutes a separate offense. See United States

v. Jacek, 298 F.2d 429, 429 (3d Cir. 1962) (finding that forging ten

separate money orders constituted ten separate offenses). Pickeral in

fact pled guilty to four separate offenses. Each was a completed

offense, regardless of whether he obtained the money he sought as a

result of presenting the altered money order. For sentencing purposes,

the loss resulting from a completed offense includes the intended loss.

See United States v. Williams, 81 F.3d 1321, 1328 (4th Cir. 1996).

Pickeral offered no evidence that he did not intend to obtain more

than $571 on December 1 or that, had he succeeded in obtaining $571

with the first altered money order he presented on December 1, he

would not have presented the second money order. Pickeral’s argument was based entirely on supposition and the district court did not

err in finding that he was responsible for the loss he intended to inflict

each time he presented an altered money order.*

Pickeral also contests the district court’s order that he pay restitution of $1222 to the Postal Service under 18 U.S.C.A. § 3663A (West

2000). He argues that restitution should be no more than $1220. On

this point, Pickeral is correct, because the government’s actual loss

did not total more than $1220. Pickeral paid two dollars for two

*Pickeral also maintains that the district court should have deducted

from the amount of loss the two dollars he spent to obtain the money

orders which he succeeded in cashing. Because reducing the amount of

loss by several dollars would not affect Pickeral’s offense level, we find

it unnecessary to reach this issue. 

UNITED STATES v. PICKERAL 3
money orders which were each worth one dollar. The government

paid him $651 and $571, thus losing $650 and $570, respectively, on

the two transactions. We note that Pickeral did not specifically contest

the recommended amount of restitution at sentencing, although he did

object to the probation officer’s recommendation that he pay restitution of $1222. The district court adopted the probation officer’s recommendation without making any independent finding concerning

the amount of restitution Pickeral owed. Under 18 U.S.C.A. § 3664(e)

(West 2000), the government has the burden of demonstrating the

amount of loss sustained by the victim, and the district court has the

responsibility of resolving any dispute as to the amount of restitution.

Neither the probation officer nor the government demonstrated that

Pickeral owed $1222 in response to his objection, and the district

court did not resolve the dispute over the amount. Normally, a remand

to the district court would be necessary for a determination of the correct amount of restitution. However, because the disputed amount is

so small, we are inclined to give Pickeral the benefit of any doubt.

Accordingly, we vacate this portion of the judgment and remand the

case solely for modification of the restitution order to require restitution of $1220. 

Finally, Pickeral disputes the enhancement for more than minimal

planning. Under § 2F1.1(b)(2)(A), a two-level enhancement is made

if the offense involved more than minimal planning. Application Note

2 explains that the term is defined in the commentary to USSG

§ 1B1.1. Application Note 1(f) defines more than minimal planning

as "more planning than is typical for commission of the offense in a

simple form," and explains that it "exists if significant affirmative

steps were taken to conceal the offense," apart from conduct that constitutes obstruction of justice. Further, more than minimal planning "is

deemed present in any case involving repeated acts over a period of

time, unless it is clear that each instance is purely opportune." Id. The

district court’s factual determination that more than minimal planning

was present is reviewed for clear error. See United States v. Pearce,

65 F.3d 22,26 (4th Cir. 1995). 

The district court determined that Pickeral had shown more than

minimal planning by using different post offices in different towns

over a wide area. In his argument on appeal, Pickeral focuses on the

simple method he used to alter each money order—writing in a larger

4 UNITED STATES v. PICKERAL
amount with a ballpoint pen. While that part of his planning was concededly simple, his use of eight different post offices in different

towns showed forethought and a definite strategy for concealing the

offense. Consequently, the district court did not clearly err in finding

that Pickeral used more than minimal planning and enhancing his

offense level. 

We therefore vacate the portion of the judgment that orders Pickeral to pay $1222 in restitution and remand for modification of the

restitution order to require payment of $1220. We affirm the sentence

in all other respects. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

UNITED STATES v. PICKERAL 5