* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20917

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

DIANA QUINONES

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CR-58-ALL

Before REAVLEY, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

Diana Quinones, a rural mail carrier in Cypress, Texas, was convicted by

a jury of possession of stolen mail in violation of 18 U.S.C. § 1708. The district

court sentenced Quinones to 12 months and one day in prison and a three-year

term of supervised release.

Quinones asserts that the evidence presented at trial was insufficient to

support her conviction. To establish that Quinones possessed stolen mail, the

Government was required to prove beyond a reasonable doubt that Quinones

United States Court of Appeals

Fifth Circuit

F I L E D

October 20, 2008

Charles R. Fulbruge III

Clerk
No. 07-20917

2

“possessed the item stated in the indictment; (2) that the item had been stolen

from the mail; (3) that [Quinones] knew the item was stolen; and (4) that

[Quinones] had the specific intentto possess the item unlawfully.” UnitedStates

v. Hall, 845 F.2d 1281, 1284 (5th Cir. 1988) (citing United States v. Osunegbu,

822 F.2d 472, 475 (5th Cir. 1987)).

Quinones did not move for a judgment of acquittal at either the close ofthe

Government’s case or the close of all the evidence. Accordingly, we review her

claim only to determine whether there was a manifest miscarriage of justice.

See United States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001). A manifest

miscarriage of justice exists when “the record is devoid of evidence pointing to

guilt.” Id. (internal quotation marks and citations omitted). In making this

determination, we consider the evidence in the light most favorable to the

verdict, giving it the benefit of all reasonable inferences and credibility choices,

just as we do when considering a properly preserved sufficiency claim. United

States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007).

The trial evidence demonstrated that Quinones was found in possession

of undelivered mail after the completion of her route. Investigators equipped a

package with a tracking device, and the tracking signal indicated that Quinones

opened the package in her vehicle after she completed her route. When

investigators approached Quinones in her vehicle, they saw the opened package

in the vehicle. No one other than Quinones was in her delivery vehicle at any

time from the beginning to the completion of her route. Pieces of the tracked

package and 131 other pieces of undelivered mail were found in her vehicle. The

Mail carriers such as Quinones are not authorized to be in possession of

undelivered mail atthe completion oftheir daily routes. The record is not devoid

of evidence pointing to guilt. There was no manifest miscarriage of justice in

this case. Delgado, 256 F.3d at 274.

Quinones also asserts thatthe district court erred in imposing a four-level

enhancement pursuant to U.S.S.G. § 2B1.1(b)(2)(B). Quinones contends the
No. 07-20917

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enhancementis improper because the evidence does not supportthe finding that

50 or more victims were involved in the offense.

A district court’s interpretation or application of the Sentencing Guidelines

is reviewed de novo, and its factual findings are reviewed for clear error. See

United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The

district court’s determination of what constitutes relevant conduct for sentencing

purposes is a factual finding that is reviewed for clear error. See United States

v. Mann, 493 F.3d 484, 497 (5th Cir. 2007). A factual finding is clearly erroneous

only if, based on the entirety of evidence, the reviewing court is left with the

definite and firm conviction that a mistake has been made. United States v.

Valdez, 453 F.3d 252, 262 (5th Cir. 2006). A factual finding is not clearly

erroneous if it is plausible in light of the entire record. Id.

Pursuantto § 2B1.1(b)(2)(B),the offense levelfor offenses involving stolen

property is increased by four levels if the offense involved 50 or more victims.

In cases where “undelivered United States mail was taken, or the taking of such

items was an object of the offense, or in which the stolen property . . . possessed

is undelivered United States mail,” the term “victim” refers to “any person who

was the intended recipient, or addressee of the undelivered United States mail.”

§ 2B1.1(2)(B), comment. (n.4(C)(i)). Further, there is a “special rule” for cases

involving undelivered mail and a United States Postal Service relay box,

collection box, delivery vehicle, satchel, or cast:those cases are presumed to have

involved at least 50 victims. § 2B1.1(2)(B), comment. (n.4(C)(ii)(I)).

The evidence reflects that Quinones used her mail delivery vehicle in the

offense; that investigators found approximately 131 pieces of unopened First,

Second, and Third Class United States mail in Quinones’s vehicle; and that

investigators identified more than 50 individuals whose undelivered mail was

in the vehicle. Accordingly, because the district court’s factual finding was not

implausible in light of the record as a whole, the district court did not clearly err
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in imposing the four-level enhancement. See Cisneros-Gutierrez, 517 F.3d at

764; Valdez, 453 F.3d at 262.

Finally, Quinones argues that the district court’s exclusion of certain

testimony at trial was harmful to her defense. We review a district court’s

evidentiary rulings for an abuse of discretion, applying the harmless error

doctrine. United States v. Sanders, 343 F.3d 511, 517 (5th Cir. 2003). “An error

is harmless if the reviewing court is sure, after viewing the entire record, that

the error did not influence the jury or had a very slight effect on its verdict.”

United States v. Rodriguez, 43 F.3d 117, 123 (5th Cir. 1995).

Even if Quinones could demonstrate that the district court’s evidentiary

ruling was an abuse of discretion, which she has not done, she has failed to

demonstrate that, in light of the entire record, any error either influenced the

jury or affected the verdict. See id. Consequently, she has failed to show that

the district court’s evidentiary rulings constituted reversible error.

The judgment of the district court is AFFIRMED.