* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### August 3, 2005 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. SHERMA LEE LEACH, Defendant - Appellant. No. 04-5117

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 03-CR-114-H) *

Paul D. Brunton, Julia O’Connell, Barry L. Derryber ry, Office of the Federal Public Defender, Tulsa, Oklahoma, for Defendant-App ellant. David E. O’Melia, Kenneth P. Snoke, Office of the U nited States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.

Before EBEL , McKAY and HENRY , Circuit Judges.

EBEL , Circuit Judge.1 Defendant was also fined $2,000, ordered to pay res titution in the amount

of $300, and subjected to a special assessment of $ 100. On appeal, Defendant does not challenge these aspects of her sentence. - 2 - Sherma Lee Leach (“Defendant”) pled guilty to theftof mail by a postal employee, a violation of 18 U.S.C. § 1709. After a ccepting Defendant’s plea and conducting a sentencing hearing, the district courtsentenced Defendant to thirtyseven months’ imprisonment, followed by three years ’ supervised release. 1 On appeal, Defendant challenges the district court’s application of the United States Sentencing Guidelines as well as the constitutional ity of her sentence under United States v. Booker , 125 S. Ct. 738 (2005). Exercising jurisdiction o ver this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we REVERSE Defendant’s sentence and REMAND for proceedings consistent with this Opinion. I. Factual Background Defendant was employed by the United States Postal Service (“USPS”) in Bartlesville, Oklahoma, as a mail sorter between 19 99 and 2003. During this time, Defendant had contact with large volumes of m ail addressed to the Voice of the Martyrs (“VOM”), a nonprofit organization that assists Christians around the world who are being persecuted for their faith. Th e group finances operations through charitable donations sent to its headquarte rs in Bartlesville.- 3 -

During the same period Defendant was employed with the USPS, VOM began receiving reports from its donors that checks the donors had mailed to VOM were not being cashed. In accordance with its established internal procedure, VOM compiled a log, recording each time it was notified that a donation had not been cashed. VOM also notified po stal inspectors, who began a formal investigation at the Bartlesville post offic e in July 2003. The investigators observed Defendant hide VOM mail in a post office box and return after her shift to retrieve the mail by accessing the post office box from the lobby. During one of Defendant’s trips to the post office box, postal inspectors apprehended Defendant, who was carrying 31 pieces of mail addressed to VOM as well as mail addressed to several other c haritable organizations. Defendant admitted to postal inspectors that she ha d been stealing mail for five or six years and consented to a search of her residenc e. The search of Defendant’s residence yielded an addi tional forty-five pieces of discarded mail, most of which were addressed to VOM. The total amount of cash and checks found in Defendant’s possession (bo th on her person and at her residence) on the date of her arrest was $4,707. II. Procedural history On August 23, 2003, the United States Attorney for the Northern District of Oklahoma charged Defendant by information with one count of theft of mail by a2 Title 18, U.S.C. § 1709 provides:

Whoever, being a Postal Service officer or employee , embezzles any letter, postal card, package, bag, or mail, or any article or thing contained therein entrusted to him or which comes i nto his possession intended to be conveyed by mail, or carr ied or delivered by any carrier, messenger, agent, or other person e mployed in any department of the Postal Service, or forwarded thro ugh or delivered from any post office or station thereof established by authority of the Postmaster General or of the Postal Service; or ste als, abstracts, or removes from any such letter, package, bag, or mail , any article or thing contained therein, shall be fined under this title or imprisoned not more than five years, or both.

3 Although Defendant was originally scheduled for sen tencing on March 5, 2004, the district court granted a number of contin uances. The last of these continuances, granted on June 18, 2004, stated thatsentencing would be held in approximately three weeks. Six days later, on June 24, 2004, the Supreme Court issued Blakely . 124 S. Ct. at 2531. - 4 - postal employee, a violation of 18 U.S.C. § 1709. 2 On December 4, 2003, Defendant petitioned the district court to enter a plea of guilty to the charge against her. In her written petition, Defendant expressly admitted to stealing eighty pieces of mail, but made no admission as to the amount of funds that were embezzled or the number of victims involved. Defen dant also expressly waived her right to a jury trial. The district court held a hearing the same day, accepted the guilty plea, and set sentencing for March 5, 20 04. Between the time of Defendant’s guilty plea and hersentencing, the Supreme Court issued its decision in Blakely v. Was hington , 124 S. Ct. 2531 (2004). 3 Blakelyinvalidated the State of Washington’s sentencing s cheme on4 Of course, at this point, the Supreme Court had notestablished such a right

in federal criminal prosecutions. See Blakely , 124 S. Ct. at 2538 n.9. Nevertheless, the district court held as an initial matter that the rationale in Blakelyapplied to the federal sentencing guidelines and r equired any judicial fact-finding made by federal courts during sentenci ng to comply with the Sixth Amendment. - 5 - Sixth Amendment grounds because the scheme permitte d judges to increase a criminal defendant’s sentence based on facts neithe r admitted by a defendant nor proven to a jury. Id. at 2536-38. Because Blakelysignificantly changed the legal landscape of criminal sentencing, the district court permitted the parties to file supplemental briefs discussing the case’s applicabi lity to the federal sentencing guidelines. At this point in the proceedings, there were two di sputed factual issues relevant to sentencing: the amount of loss suffered and the number of victims. The district court offered Defendant an opportunity to withdraw her pre-Blakely guilty plea and waiver of jury trial. Defendant de clined the offer, arguing that the earlier waiver of the right to a jury trial applied only to the right to have a jury determine guilt or innocence, not the right to have a jury determine facts relevant to sentencing. 4 Because Blakelyhad not been decided at the time Defendant entered her waiver of the right to a jury trial, De fendant argued that she could not have knowingly waived her right under Blakelyto a jury determination of facts relevant to sentencing.5 Defendant does not challenge this enhancement on ap peal. - 6 - After considering this argument, the district courtheld that Defendant’s pre-Blakelywaiver of a jury trial applied both to the guilt-i nnocence and sentencing phases of the proceedings. That is, the district court held that the Sixth Amendment right to a jury trial was not sever able between guilt-innocence and sentencing phases, and that a waiver as to one was a waiver as to the other. The district court then concluded that, in light of Defendant’s waiver, it could make factual findings without violating the Sixth A mendment. Out of an abundance of caution, however, the distri ct court opted to hold a full-blown evidentiary hearing in accordance with t he Federal Rules of Evidence and required the Government to prove facts regardin g loss amount and number of victims beyond a reasonable doubt. Under the sentencing guidelines, Defendant’s convic tion under 18 U.S.C. § 1709 warranted a base offense level of six. See U.S.S.G. § 2B1.1(a)(2) (2003). The district court then imposed a two level enhance ment for abuse of a position of trust based on admissions contained in Defendant ’s guilty plea petition. 5 See U.S.S.G. § 3B1.3. Next, the court applied two enhancements based on t estimony presented at the evidentiary hearing. First, the district courtfound beyond a reasonable doubt that the amount of loss attributable to Defendant’s conduct was $134,571.34.- 7 -

Pursuant to U.S.S.G. § 2B1.1(b)(1)(F), Defendant’s offense level was enhanced by ten levels, bringing her total offense level to eighteen. Second, the district court found beyond a reasonable doubt that Defendan t’s crime involved fifty or more victims and enhanced her offense level by fourlevels pursuant to U.S.S.G. § 2B1.1(b)(2)(B). Finally, the court applied a three-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(a)-(b), bringing the total offens e level to nineteen. With Defendant’s criminal history catego ry of I, the appropriate guidelines range was 30-37 months’ imprisonment. T he district court imposed the highest possible sentence of thirty-seven months, n oting that such a sentence was appropriate because Defendant had abused a position of trust and it was likely that there were many more unidentified victims. Th e instant appeal followed.
III. Discussion On appeal, Defendant raises three issues: First, sh e challenges the district court’s application of U.S.S.G. § 2B1.1(b)(2)(B), a rguing that the district court incorrectly concluded that Defendant’s crime involv ed fifty or more victims. Second, she argues that the district court incorrec tly applied U.S.S.G. § 2B1.1(b)(1)(F) by miscalculating the amount of loss attributable to Defendant. Finally, Defendant argues that the enhancements to her sentence under U.S.S.G. § 2B1.1(b)(2)(B) and (b)(1)(F) violated her Sixth Ame ndment right to trial by jury6 See United States v. Gonzalez-Huerta , 403 F.3d 727, 731-32 (10th Cir.

2005) (en banc) (describing the difference between constitutional and nonconstitutional Bookererror). - 8 - because the district court engaged in unconstitutio nal fact finding. See Blakely , 124 S. Ct. at 2536-38, Booker , 125 S. Ct. 755-56 (applying Blakely ’s holding to the federal sentencing guidelines). Because the la st of these three issues has the potential to be dispositive, we consider it first.
A. Booker /Blakely violation In Booker , the Supreme Court held that for federal sentences , “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonab le doubt.” 125 S. Ct. at 756. Defendant raises constitutional Bookererror, 6 arguing that her Sixth Amendment rights were violated when the district court made f actual findings regarding the amount of loss and the number of victims that enhan ced her offense level by fourteen points. A defendant’s right to a jury trial at sentencing, just like the right to a jury trial at the guilt-innocence phase, can be voluntar ily waived. Here, defendant’s guilty plea (which was entered prior to the Supreme Court’s decisions in Blakely and Booker ) contained such a waiver. Our task, then, is to d etermine whether this waiver applies to Defendant’s rights under Booker

.7 As an initial matter, we note that our precedent fo recloses Defendant’s

contention that constitutional Bookeris structural error. United States v. Dowlin , 408 F.3d 647, 668-69 (10th Cir. 2005). - 9 -

1. Waiver 7 A waiver is the intentional relinquishment or aband onment of a known right or privilege. United States v. Chavez-Salais , 337 F.3d 1170, 1172-73 (10th Cir. 2003). Here, when submitting her petition to plead guilty, Defendant also executed a written waiver of her Sixth Amendment ri ght to a jury trial which read as follows: Comes now the undersigned defendant having been ful ly apprised of my rights, do hereby waive a jury and agree to try the above styled and numbered criminal proceedings to the Court as p rovided by Rule 23(a), Rules of Criminal Procedure. In addition, Defendant’s petition to plead guilty c ontained the following statement regarding her waiver of constitutional rights:
WAIVER OF CONSTITUTIONAL RIGHTS I know I have the right to plead “NOT GUILTY” to any offense charged against me. If I plead “NOT GUILTY ” I know the Constitution guarantees me . . . the right to a spe edy and public trial by jury . . . . In regard to my right to a jury trial, I know I am the only person who can waive, that is give up, that right. I also fully understand that if I have a trial by a jury, I have the right of the assistance of an attorney; also the right to confro nt and crossexamine witnesses against me; and the right not to be compelled to incriminate myself. Furthermore, I understand thatto convict me, all 12 jury members would have to agree that I am “GUIL TY.”- 10 -

On appeal, Defendant argues that since her initial waiver was entered before the Supreme Court decided Bookeror Blakely , she could not have waived jury trial rights created by those decisions becaus e they did not yet exist. We disagree. As the Sixth Circuit has recognized, [p]lea agreements . . . may waive constitutional orstatutory rights then in existence as well as those that courts may recognize in the future. . . . [W]here developments in the law later expand a righ t that a defendant has waived in a plea agreement, the chang e in law does not suddenly make the plea involuntary or unknowing or otherwise undo its binding nature. United States v. Bradley , 400 F.3d 459, 463 (6th Cir. 2005), petition for c ert. filed(June 9, 2005) (No. 04-10620). Citing Bradley , this court has held that a waiver of appellate rights was not rendered unknowi ng or involuntary by the Supreme Court’s subsequent issuance of Bookeror Blakely . United States v.
Green , 405 F.3d 1180, 1190 (10th Cir. 2005). Similarly, we do not believe these decisions should negate waivers of other constituti onal rights, such as the right to a trial by jury. Furthermore, the record indicates that after Blakel ywas decided, the district court offered Defendant an opportunity to withdraw her guilty plea and waiver of jury trial rights, an opportunity Defenda nt refused. If there was any doubt as to the scope or voluntariness of Defendant ’s pre-Blakelywaiver, that- 11 -

doubt was erased when Defendant, having full knowle dge of Blakely , declined the offer to withdraw her plea.

2. Conclusion Because Defendant waived, without qualification, he r right to a jury trial in her guilty plea, we conclude that she may not now a ssign as error the failure of the district court to afford her a jury determinati on of facts relevant to sentencing. We will, however, consider Defendant’s two points o f error related to the district court’s application of the guidelines. B. Application of U.S.S.G. § 2B1.1(b)(1)(F): Loss at tributable to Defendant Based on evidence presented at the sentencing heari ng, the district court found beyond a reasonable doubt that the monetary l oss attributable to Defendant’s conduct was $134,571.34. This finding permitted the court to apply a sentencing enhancement under U.S.S.G. § 2B1.1(b)( 1)(F), which permits a tenlevel increase in a defendant’s offense level if th e loss suffered exceeds $120,000 but is not more than $200,000. On appeal, Defendan t argues that the district court miscalculated the loss attributable to her co nduct and therefore erroneously applied the guideline enhancement. When reviewing a district court’s application of the sentencing guidelines, we review legal quest ions de novo and any factual findings for clear error, giving due deference to t he district court’s application of8 A district court’s loss calculation at sentencing i s a factual question we

review under the clearly erroneous standard. Unite d States v. Levine , 970 F.2d 681, 690 (10th Cir. 1992). - 12 - the guidelines to the facts. United States v. Doe , 398 F.3d 1254, 1257 (10th Cir. 2005). 8 In calculating the loss attributable to defendant, the district court “need only make a reasonable estimate of the loss.” U.S. S.G. § 2B1.1 cmt. n.3(C). The sentencing judge is in a unique position to assess the evidence and estimate the loss based upon that evidence. Id. For this reason, the court’s loss determination is entitled to appropriate deference. Id. (citing 18 U.S.C. § 3742(e) and (f)). Here, the district court relied on an exhibit furni shed by VOM which purported to estimate the amount of contributions l ost from 1999 to 2003, the period during which Defendant was a USPS employee. During this time, each time a check was reported uncashed, VOM (acting pur suant to its internal policy) made an entry into a spreadsheet. This report cont ained the date each undelivered check was reported, the check number, the donor’s n ame and address, the amount of the donation, and the estimated date the donatio n was mailed. The total number of donations reported lost during this perio d was $253,555.42 (“the gross loss”).However, it appears that some of the donors who rep orted uncashed checks sent in “replacement donations” when they were info rmed that their original- 13 -

donations had not been received by VOM. A donation was categorized by VOM as a “replacement donation” when it was (1) the sam e amount as the original donation; (2) received within four months of the no tification that the original donation did not arrive; and (3) not part of a fixe d program of systematic giving. These “replacement donations” totaled $134,571.34. The district court concluded that the Government ha d shown by a preponderance of the evidence that the loss attribu table to Defendant was equivalent to VOM’s gross loss of $253,555.42. How ever, the court chose to require the Government to prove the loss attributab le to Defendant beyond a reasonable doubt, and it concluded that the Governm ent had not presented enough evidence that VOM actually suffered a loss in this amount. Instead, the court relied upon evidence of replacement checks in deter mining the loss attributable to Defendant: The Court finds that the fact that a contributor se nt a replacement check in the same amount after learning that the or iginal check did not arrive establishes beyond a reasonable doubt th at the check had been sent in the first place. Thus, the loss to VO M established beyond a reasonable doubt is $134,571.34. Defendant assails this evidence as merely the “gues swork of VOM employees” and argues that the district court shoul d not have relied upon it in making its sentencing determination. We disagree. Although the replacement donations were not, in a strict sense, a measure of the money Defendant caused9 Under this guideline, the term “Person” includes in dividuals as well

corporate entities. U.S.S.G. § 2B1.1 cmt. n.1. - 14 - VOM to lose (since VOM ultimately received these fu nds), the donations are evidence of the loss Defendant intended VOM to suffer. See U.S.S.G. § 2B1.1 cmt. n.3(A) (“loss is the greater of actual loss orintended loss”). Therefore, after considering all of the evidence in the record, we cannot say that the district court clearly erred in its calcul ation of the loss attributable to Defendant. As a result, the court’s application of the enhancement under U.S.S.G. 2B1.1(b)(1)(F) was proper. C. Application of U.S.S.G. § 2B1.1(b)(2)(B): Number of victims Defendant also challenges the district court’s conc lusion that her offense involved fifty or more (but less than 250) victims, which justified a four-level enhancement, pursuant to U.S.S.G. § 2B1.1(b)(2)(B). We review the court’s legal determinations de novo and its factual finding for clear error. Doe , 398 F.3d at
1257. The commentary to U.S.S.G. § 2B1.1 defines a “Victi m” as “any person who sustained any part of the actual loss determine d under subsection (b)(1); or any individual who sustained bodily injury as a res ult of the offense.” 9 U.S.S.G. § 2B1.1 cmt. n.1. In a case in which undelivered U nited States mail was taken, “‘victim’ means (I) any victim as defined in Applic ation Note 1; or (II) any10 The envelopes were addressed to VOM, Prayer by Lett ers, Saint Matthews

Church, Southwest Indian Children’s Fund, Word of F aith, Robert Tilton Ministries, and two private residences in Bartlesvi lle. - 15 - person who was the intended recipient, or addressee , of the undelivered United States mail.” Id. cmt. n.4(B)(i). At the time of her arrest, Defendant was in possess ion of mail addressed to eight separate people or entities. 10 Based on VOM’s exhibit, however, the district court found that “over 200 people reported undelive red donations and incurred the expense of writing and mailing a replacement check. ” These expenses, the court concluded, qualified the senders of the uncashed ch ecks as “victims” under U.S.S.G. § 2B1.1. We disagree. As an initial matter, it is undisputed that none of these 200 people were intended addressees of the undelivered mail, nor di d they suffer any bodily injury as a result of the offense. Cf. U.S.S.G. § 2B1.1 cmt. n.1, 4(B)(i)(II). Thus, the only relevant definition of “Victim” is “any person who sustained any part of the actual loss determined under subsection (b)(1) [.]” Id. cmt. n.1 (emphasis added). “Actual loss” is defined as “the reasonably foresee able pecuniary harm that resulted from the offense.” Id. cmt. n.3(A)(i). While we agree that the cost of sending in replacement checks was a reasonably fore seeable pecuniary harm of Defendant’s conduct, this harm was not included as part of the actual loss “determined under subsection (b)(1).” Id. cmt. n.1. There was no testimony11 We cannot conclude that this error was harmless. S ee Fed. R. Crim. P.

52(a). Without these 200 individuals, Defendant’s crime involved only eight discernable victims. If this were the case, no enh ancement based on the number of victims would be appropriate under the guideline s. See U.S.S.G. § 2B1.1(b)(2) (requiring at least 10 victims for an enhancement). Without the enhancement, the maximum sentence Defendant could have received woul d have been twenty-four months’ imprisonment, thirteen months less than the thirty-seven month sentence she actually received. In effect, the district cou rt’s error increased Defendant’s maximum sentence by more than fifty percent. - 16 - presented at the sentencing hearing regarding the type and amount of loss suffered by donors . Rather, the court’s calculation of the actual lo ss was merely an estimation of the amount of funds Defendant intende d to take from VOM . That calculation did not include any estimation of “repl acement costs” incurred by donors who sent in additional checks. Because the loss suffered by these 200 donors was n ot part of the actual loss determined by the court under U.S.S.G. § 2B1.1 (b)(1)(F), the district court erred by counting the donors as “victims” for the p urposes of an enhancement under U.S.S.G. § 2B1.1(b)(2). 11
IV. Conclusion We conclude that Defendant’s sentence is neither in fected with constitutional error under Bookernor an improper enhancement based on the amount of loss. However, the district court’s erro r in the application of U.S.S.G. § 2B1.1(b)(2) requires a reversal. Accordingly, we REVERSE Defendant’s sentence and REMAND for proceedings consistent with this opinion.