IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-11026

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GABRIEL GRANADO,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:13-CR-260

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Gabriel Granado appeals the sentence imposed following his guilty plea 

conviction for one count of burglary of a United States Post Office in violation 

of 18 U.S.C. §§ 2 and 2115 (Count One), and two counts of possession of stolen 

mail in violation of 18 U.S.C. §§ 2 and 1708 (Counts Two and Three). He 

contends that the district court plainly erred by using the intended loss to 

calculate his offense level on Count One because U.S.S.G. § 2B2.1 does not 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 23, 2015

Lyle W. Cayce

Clerk

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define “loss” to include the intended loss. He also argues that the 

$1,451,807.22 loss attributed to him on Count One was an incorrect valuation 

of the property taken. Because Granado did not raise these arguments in the 

district court, our review is limited to plain error. See United States v. Villegas, 

404 F.3d 355, 358 (5th Cir. 2005), superseded by regulation on other grounds 

as stated in United States v. Pimpton, 558 F. App’x 335, 337-38 (5th Cir. 2013).

Although the presentence report (PSR) referred to the $1,451,807.22 as 

the “intended loss amount,” the PSR explained that this figure represented 

“the total value of the 398 pieces of stolen U.S. Mail recovered by agents at the 

Motel 6 on June 20, 2013.” Thus, Granado cannot show that the district court 

misapplied § 2B2.1. See § 2B2.1(b)(2)(F); § 2B2.1, comment. (n.2). 

 Granado’s challenge to the district court’s valuation of the property 

taken is also unavailing. “[Q]uestions of fact capable of resolution by the 

district court can never constitute plain error.” United States v. Chung, 261 

F.3d 536, 539 (5th Cir. 2001) (internal quotation marks and citations omitted). 

Further, the $1,451,807.22 loss amount represents the cumulative face value 

of the checks and money orders taken in the burglary offense. Courts have 

upheld loss determinations based on the face value of the stolen checks or 

money orders. See United States v. Wimbish, 980 F.2d 312, 316-17 (5th Cir. 

1992), abrogated on other grounds by Stinson v. United States, 508 U.S. 36 

(1993); United States v. Quertermous, 946 F.2d 375, 376, 378 (5th Cir. 1991); 

see also United States v. Hallman, 23 F.3d 821, 823-24 (3d Cir. 1994). 

Moreover, Granado has pointed to no evidence demonstrating a reasonable 

probability that, absent the alleged error, the district court would have 

imposed a lesser sentence. See United States v. Blocker, 612 F.3d 413, 416-17

(5th Cir. 2010). Accordingly, he cannot show reversible plain error. See 

Puckett v. United States, 556 U.S. 129, 135 (2009).

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Granado also contends that the district court plainly erred by failing to 

apply a three-level reduction for a partially completed offense under U.S.S.G. 

§ 2X1.1(b)(1). He argues that the reduction was warranted because his 

possession of stolen mail offenses were merely part of a larger attempted theft 

and he was being held accountable for substantial portions of the 

unaccomplished theft. He also argues that this court’s decision in United 

States v. John, 597 F.3d 263 (5th Cir. 2010), compels the application of the 

reduction because the bulk of the activity necessary to effectuate the over 

$2,000,000 intended loss was uncompleted. Granado concedes that the alleged 

error is not clear or obvious in light of our unpublished decision in United 

States v. Thomas, 585 F. App’x 869 (5th Cir. 2014), cert. denied, 135 S. Ct. 1750 

(2015), but he seeks to preserve the issue for further review in the event of a 

subsequent clarifying opinion while the appeal remains pending.

In Thomas, we concluded that the reduction did not apply because 

“Thomas was convicted of possession of stolen mail, and no uncompleted 

offenses were considered in calculating his offense level.” Thomas, 585 F. 

App’x at 869-70, quote at 870. We reasoned that the decision in John was 

distinguishable and that “Thomas’ underlying offense of possession of stolen 

mail [did] not require actual loss as part of the substantive offense.” Id. at 870. 

Finally, we noted that the proper focus was “on the substantive offense and the 

defendant’s conduct in relation to that specific offense.” Id. (internal quotation 

marks and citation omitted). Although our decision in Thomas is not binding, 

it is persuasive and instructive authority. See 5TH CIR. R. 47.5.4; United States 

v. Sauseda, 596 F.3d 279, 282 (5th Cir. 2010). Further, as Granado 

acknowledges, in light of Thomas, whether the district court committed clear 

and obvious error is at least subject to reasonable debate. See United States v. 

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Ellis, 564 F.3d 370, 377-78 (5th Cir. 2009). Accordingly, Granado cannot show 

reversible plain error. See Puckett, 556 U.S. at 135. 

AFFIRMED.

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