FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CARLOS JONATHAN GONZALEZ

BECERRA, AKA Carlos Jonathan

Gonzalez, AKA Jonathan Becerra,

AKA Carlos Jonathan Becerra,

Defendant-Appellant.

No. 13-50381

D.C. No.

2:07-cr-00812-

DSF-1

OPINION

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Submitted March 3, 2015*

Pasadena, California

Filed April 14, 2015

Before: Michael R. Murphy,

**

 Ronald M. Gould,

and Richard C. Tallman, Circuit Judges.

Opinion by Judge Murphy

* The panel unanimously finds this case suitable for decision without

oral argument. Fed. R. App. P. 34(a)(2).

** The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.

Court of Appeals, Tenth Circuit, sitting by designation.
2 UNITED STATES V. GONZALEZ BECERRA

SUMMARY***

Criminal Law

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

 

*** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. GONZALEZ BECERRA 3

§ 2B1.1, and the district court did not err in increasing the

defendant’s offense level pursuant to § 2B1.1(b)(2)(B).

COUNSEL

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.

OPINION

MURPHY, Circuit Judge:

I. INTRODUCTION

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).
4 UNITED STATES V. GONZALEZ BECERRA

GonzalezBecerra 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 (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 Becerra,

because the commentary includes within its definition of

victims individuals who did not suffer a pecuniary loss, the

commentary is inconsistent with the guideline.

Gonzalez Becerra’s argument is unpersuasive. Section

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 monetaryloss. Thus,

exercising jurisdiction pursuant to 28 U.S.C. § 1291 and

18 U.S.C. § 3742, this court affirmsthe sentence imposed by

the district court.

II. BACKGROUND

A. Factual Background

Gonzalez Becerra’s prosecution for possession of stolen

mail grew out of a traffic stop. Gonzalez Becerra was the

driver of the vehicle; Angela Okos was his passenger. During

the stop, Gonzalez Becerra was unable to provide a driver’s
UNITED STATES V. GONZALEZ BECERRA 5

license. While searching him for identification, officers

found three credit cards, none of which was in Gonzalez

Becerra’s name. Inside the vehicle, officers found a piece of

mail addressed to another person, sheets of paper containing

personal identifying information of numerous individuals,

and a Mexican identification card in the name of Carlos

Jonathan Gonzalez.

1 The next day, officers executed a search

warrant at Gonzalez Becerra’s residence. The search

revealed that Gonzalez Becerra possessed a large quantity of

stolen mail. Including the mail found in both his car and

house, Gonzalez Becerra possessed the mail of slightly less

than 250 individuals. The items in that stolen mail included

43 credit cards; 140 personal checks in the names of 32

individual account holders; 360 blank checks in the names of

15 individual account holders; and 289 pieces of other mail

such as bills, tax documents, bank and credit card statements,

and other miscellaneous items.

During an interview, Okos told officers she had

accompanied Gonzalez Becerra on previous occasions when

he traded methamphetamine for stolen mail. Okos also told

officers she had driven Gonzalez Becerra around the Greater

Los Angeles area to steal mail.

B. Procedural Background

The grand jury issued a multi-count indictment charging

Gonzalez Becerra with, inter alia, numerous counts of

possessing stolen mail. Gonzalez Becerra entered into a plea

agreement with the government. He agreed to plead guilty to

a single violation of 18 U.S.C. § 1708 and, in exchange, the

1 The record reveals that Gonzalez Becerra’s full name is Carlos

Jonathan Gonzalez Becerra.
6 UNITED STATES V. GONZALEZ BECERRA

government agreed to move to dismiss the remaining counts

of the indictment and recommend a three-level reduction to

Gonzalez Becerra’s offense level for acceptance of

responsibility. The district court accepted Gonzalez

Becerra’s guilty plea and ordered the preparation of a

presentence investigation report (“PSR”).

As relevant to this appeal, the PSR recommended a fourlevel increase to Gonzalez Becerra’s offense level pursuant to

the terms of § 2B1.1(b)(2). Section 2B1.1(b)(2) provides for

graduated increases to a defendant’s offense level based on

the number of victims involved in the offense of conviction:

(1) an increase of two levels if the crime “involved 10 or

more victims” or “was committed through mass-marketing”;

(2) an increase of four levels if the crime “involved 50 or

more victims”; or (3) an increase of six levels if the crime

“involved 250 or more victims.” U.S.S.G. § 2B1.1(b)(2). 

Although the text of § 2B1.1 does not contain a definition of

the term “victim,” the PSR noted that the commentary to the

guideline contains three definitions. Application Note 1

defines the term, in relevant part, as follows: “‘Victim’ means

(A) any person who sustained any part of the actual loss

determined under subsection (b)(1)[2]; or (B) any individual

who sustained bodily injury as a result of the offense.” Id.

2 U.S.S.G. § 2B1.1(b)(1) sets out a schedule in which greater amounts

of actual or intended monetary losses are coupled with correspondingly

greater increases to a defendant’s offense level. In this case, the district

court concluded there was no actual loss, but that Gonzalez Becerra

intended to cause a loss of more than $120,000. The amount of intended

loss found by the district court corresponds to a ten-level increase in

Gonzalez Becerra’s total offense level. Id. § 2B1.1(b)(1)(F). Because the

district court concluded there was no actual loss, but instead only intended

loss, Gonzalez Becerra’s crime did not involve any victims under the

definition of the term set out in § 2B1.1 cmt. n.1.
UNITED STATES V. GONZALEZ BECERRA 7

§ 2B1.1 cmt. n.1. Application Note 4(C) includes a special

definition of “victim” as it applies to offenses involving

undelivered United States mail:

(C) Undelivered United States Mail.—

(i) In General.—In a case in which

undelivered United States mail was

taken, or the taking of such item was

an object of the offense, or in a case in

which the stolen property received,

transported, transferred, transmitted,

or possessed was undelivered United

States mail, “victim” means (I) any

victim as defined in Application Note

1; or (II) any person who was the

intended recipient, or addressee, of the

undelivered United States mail.

. . . .

(iii) Definition.—“Undelivered United

States mail” means mail that has not

actually been received by the

addressee or the addressee’s agent

(e.g., mail taken from the addressee’s

mail box).

U.S.S.G. § 2B1.1 cmt. n.4(C). Pursuant to the definition set

out in Application Note 4(C), the PSR concluded Gonzalez

Becerra’s offense level should be increased by four levels

because his offense involved the undelivered mail of slightly

less than 250 individuals. Id. § 2B1.1(b)(2)(B).
8 UNITED STATES V. GONZALEZ BECERRA

In his sentencing memorandum, Gonzalez Becerra

mounted a narrow, fact-based challenge to the applicability

of § 2B1.1(b)(2)(B). Gonzalez Becerra recognized the

commentary to § 2B1.1(b)(2)(B) set out two relevant

definitions of the term “victim” and asserted neither

definition applied. He asserted the definition set out in

Application Note 1 did not apply because both parties agreed

his criminal conduct did not give rise to any actual loss. He

asserted the definition set out in Application Note 4(C) did

not apply because

it has never been established that the mail

items in question were in fact items that were

undelivered. It is quite plausible that much if

not all of the mail in question could have been

removed from the trash—after the mail had

been delivered to its intended recipient—

which would also render this enhancement

inapplicable. Given the failure of proof on

this issue, this enhancement should not be

applied.

The entirely fact-based nature of Gonzalez Becerra’s

challenge to the applicability of the definition of “victim” set

out in Application Note 4(C) is confirmed by the transcript of

the sentencing hearing. The district court began the hearing

by setting out the limited parameters of Gonzalez Becerra’s

challenge: “The defense also challenges the conclusion of the

probation officer and the government that there were more

than 50 victims of the offense. He admits that victim in this

context includes any person who was the intended recipient

or addressee of the undelivered mail.” The district court then

rejected Gonzalez Becerra’s fact-based challenge to the

applicability of Application Note 4(C), finding as follows:
UNITED STATES V. GONZALEZ BECERRA 9

He admitted in the plea agreement that he

possessed mail that he knew had been stolen

from the U.S. mail or a mail receptacle. He

also admitted the mail included blank checks,

bills, credit cards, and multiple personal

checks made out to persons or entities.

The authorities found undelivered mail

belonging to nearly 250 people. The items

included 43 credit cards. One could argue

that people sometimes receive credit cards

they don’t actually want and are uninformed

enough about identity theft to just throw them

away. However, a number of victims made

statements establishing that the items at issue

had been stolen, not that they had thrown

them away.

In any event, there were also 140 personal

checks in the names of 32 individual account

holders and blank checks in the names of 15

individual account holders. People do not

throw such things away.

The district court offered the parties a chance to make any

“legal objections” before formal imposition of sentence. 

Gonzalez Becerra’s counsel indicated he had none.

III. ANALYSIS

On appeal, Gonzalez Becerra abandons the fact-based

argument against the applicability of § 2B1.1(b)(2) he raised

in the district court. He instead contends the district court

committed legal error when it applied the definition of
10 UNITED STATES V. GONZALEZ BECERRA

“victim” set out in Application Note 4(C) to conclude his

offense involved at least fifty victims. In particular, he

asserts the district court erred in applying the definition from

the commentary because the commentary is inconsistent with

the text of § 2B1.1(b)(2).

Because the record makes clear the legal issue Gonzalez

Becerra advances was not raised below, he can only obtain

relief on appeal bydemonstrating the district court committed

plain error. United States v. Tafoya-Montelongo, 659 F.3d

738, 741–42 (9th Cir. 2011). “Relief for plain error is

available if there has been (1) error; (2) that was plain;

(3) that affected substantial rights; and (4) that seriously

affected the fairness, integrity, or public reputation of the

judicial proceedings.” Id. at 741 (quotation omitted). “An

error is plain if it is clear or obvious under current law. An

error cannot be plain where there is no controlling authority

on point and where the most closely analogous precedent

leads to conflicting results.” United States v. De La Fuente,

353 F.3d 766, 769 (9th Cir. 2003) (citation omitted). Under

this standard, Gonzalez Becerra cannot demonstrate an error,

let alone an error that is plain. Accordingly, it is unnecessary

to consider whether he has carried his burden of

demonstrating the alleged error affected his substantial rights

or seriously affected the fairness or integrity of his sentencing

proceeding. United States v. Vonn, 535 U.S. 55, 62–63

(2002) (placing upon the defendant-appellant the burden of

demonstrating the existence of the third and fourth prongs of

plain error review); United States v. Gowadia, 760 F.3d 989,

996 (9th Cir. 2014) (holding it is unnecessary to reach the

third and fourth prongs of plain error review when “[t]here

was no error . . . , let alone plain error”).
UNITED STATES V. GONZALEZ BECERRA 11

Gonzalez Becerra asserts § 2B1.1 is a fraud guideline and,

within that context, the term “victim” is commonly

understood to mean someone who has suffered a monetary

loss. Section 2B1.1 is not simply a fraud guideline. In 2001,

the Sentencing Commission undertook a major rewrite of the

guideline provisions relating to property crimes in response

to concerns that the numerous guideline provisions then

applicable to such crimes created undue complexity and

unwarranted sentencing disparity. See U.S.S.G. app. C,

amend. 617. To alleviate these concerns, the Sentencing

Commission created a guideline provision consolidating the

“theft, property destruction, and fraud guidelines.” Id. To

reflect the large number of offenses covered by § 2B1.1,3

the

general definition of “victim” in Application Note 1 includes

the two most common types of victims of federal and

assimilative property crimes—individuals who suffered

physical4or pecuniary harm. Given the wide applicability of

§ 2B1.1, the commentary quite reasonably includes a rule

applicable to a certain subset of property crimes (theft of

undelivered United States mail) and an additional type of

victim (intended recipients of that undelivered mail). 

3

See U.S.S.G. § 2B1.1 cmt. (listing large number of federal statutory

provisions to which the guideline is applicable); U.S.S.G. app. C, amend.

617 (noting that the guidelines also apply to “offenses that arise under the

Assimilative Crimes Act”); see also United States v. Reed, 734 F.3d 881,

885 (9th Cir. 2013) (describing how the Assimilative Crimes Act borrows

“state law to fill gaps in the federal criminal law that applies on federal

enclaves” and, in doing so, “establishes uniformity in a state’s prohibitory

laws where such conduct is not made penal by federal statutes”

(quotations and citations omitted)).

4 This definition in Application Note 1, standing alone, demonstrates the

falsity of Gonzalez Becerra’s assertion that § 2B1.1 was only intended to

cover fraud victims who suffered pecuniary harm. Not surprisingly, this

provision is not addressed in Gonzalez Becerra’s brief.
12 UNITED STATES V. GONZALEZ BECERRA

U.S.S.G. app. C, amend. 617. In light of the breadth of

§ 2B1.1, it is impossible to give credence to Gonzalez

Becerra’s assertion this court should embrace one, and only

one, narrow aspect of the definitions of “victim” set out in the

commentary to the guideline.

Having rejected Gonzalez Becerra’s assertion that courts

must define the term “victim” solely against a contextual

background of crimes involving fraud, it is easy to reject his

assertion that the term “victim” is tied exclusively to

pecuniary loss. Dictionaries, both legal and nonlegal,

recognize the term encompasses individuals who have

suffered harm to not only their financial interests, but also to

dignitary or proprietary interests and physical well-being. 

Black’s Law Dictionary 1703 (9th ed. 2009) (defining

“victim” as a “person harmed by a crime, tort, or other

wrong”); Webster’s Third New Int’l Dictionary 2550 (1993)

(defining “victim” as, inter alia, “someone tricked, duped, or

subjected to hardship”).5 An individual deprived of

undelivered United States mail most certainly suffers harm,

whether or not the harm is directly tied to a pecuniary loss. 

The Sentencing Commission’s recognition of this fact in

Application Note 4(C) is not remotely inconsistent with the

ordinary understanding of the term “victim.” See U.S.S.G.

app. C, amend. 617 (“A special rule is provided for

application of the victim enhancement for offenses involving

United States mail because of (i) the unique proof problems

5 Consistent with these dictionary definitions, status as a victim is

commonly understood to embrace an individual deprived of property with

nominal economic value, but significant sentimental value. Thus, it

appears the term “victim” includes significantly more individuals than

recognized in the application notes to § 2B1.1. Gonzalez Becerra’s

assertion that the commentary to § 2B1.1 expanded the definition beyond

its ordinary meaning is unpersuasive.
UNITED STATES V. GONZALEZ BECERRA 13

often attendant to such offenses, (ii) the frequently

significant, but difficult to quantify, non-monetary losses in

such offenses, and (iii) the importance of maintaining the

integrity of the United States mail.”).

Finally, Gonzalez Becerra’s arguments on appeal find no

support in case law. Application Note 4(C) has been applied,

without anyquestion, bynumerous Circuit Courts of Appeals. 

See, e.g., United States v. Moore, 733 F.3d 161, 163 & n.5

(5th Cir. 2013) (citing Application Note 4(C) for proposition

that “[w]hen mail is unlawfully taken, each intended recipient

of that mail is deemed to be a victim”); United States v.

Otuya, 720 F.3d 183, 191-92 (4th Cir. 2013) (rejecting

argument that individuals were not victims because they

suffered no pecuniary harm by noting the individuals

qualified as victims because their mail was stolen); United

States v. Leach, 417 F.3d 1099, 1106 (10th Cir. 2005) (citing

Application Note 4(C) for proposition that in a case in which

undelivered United States mail was taken, the term “victim”

includes “any person who was the intended recipient, or

addressee, of the undelivered United States mail” (quotation

omitted)).6 No Circuit Court of Appeals has ever questioned

6 Gonzalez Becerra claims the Tenth Circuit’s decision in Leach

“implicitly acknowledge[s] [the] principle” that “[t]here must be actual

loss before there are actual victims.” Appellant’s Brief at 10 n.4. Leach

actually holds that in the case of stolen mail, the term “victim” includes

“any person who was the intended recipient, or addressee, of the

undelivered United States mail.” 417 F.3d at 1106 (quotation omitted). 

The Tenth Circuit held there were “eight discernable victims,” id. at 1107

n.11, because “[a]t the time of her arrest, Defendant was in possession of

mail addressed to eight separate people or entities.” Id. at 1106. The

reason the court in Leach declined to count some individuals as “victims”

for purposes of Application Note 4(C) was because they were the senders

of the mail, not the intended recipients or addressees, as required by the
14 UNITED STATES V. GONZALEZ BECERRA

whether Application Note 4(C) is consistent with

§ 2B1.1(b)(2).7 This is true even though the relevant

commentary was added to the guidelines in 2001. U.S.S.G.

app. C, amend. 617.

IV. CONCLUSION

The special definition of the term “victim” set out in

Application Note 4(C) regarding the theft of undelivered mail

is perfectly consistent with the use of that term in the text of

§ 2B1.1. Thus, the district court did not err, let alone plainly

err, in increasing Gonzalez Becerra’s offense level by four

levels because he possessed the stolen mail of at least fifty

individuals. U.S.S.G. § 2B1.1(b)(2)(B). Accordingly, the

sentence imposed by the district court is hereby

AFFIRMED.

application note. Id. Far from supporting Gonzalez Becerra’s position,

Leach directly contradicts it.

7 The cases cited in Gonzalez Becerra’s brief are not to the contrary. 

Neither United States v. Armstead, 552 F.3d 769, 780 (9th Cir. 2008), nor

United States v. Pham, 545 F.3d 712, 716 (9th Cir. 2008), involve stolen

mail. Instead, both simply involve the situation of identity theft that did

not lead to monetary loss. In those circumstances, Application Note 1

makes clear the individuals who had their identities stolen are not

“victims” for purposes of § 2B1.1(b)(2).