IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10630

UNITED STATES OF AMERICA,

Plaintiff–Appellee

v.

CRYSTAL DENISE MOORE,

Defendant–Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before WIENER, DENNIS, and OWEN, Circuit Judges.

WIENER, Circuit Judge:

Defendant–Appellant Crystal Denise Moore (“Moore”) appeals her

sentence for a conspiracy that involved, inter alia, theft of United States Postal

Service (“Postal Service”) mail from a “collection box.” She contends that the

district court erred in calculating her offense level. Moore’s appeal presents an

interpretation issue of first impression regarding Application Note 4(C)(ii)(I) to

Guideline § 2B1.1 (“the Note” or “sub-sub-paragraph I”). We hold that the Note

permits the district court to presume that there were at least 50 victims when

calculating an offense level in a case that involves one or more Postal Service

receptacles; absent probative evidence that the actual number of victims

exceeded 50, however, the court may not presume more than 50, irrespective of

United States Court of Appeals

Fifth Circuit

F I L E D

October 23, 2013

Lyle W. Cayce

Clerk

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the number of such receptacles that were involved. Accordingly, we vacate and

remand for resentencing.

I. Facts & Proceedings

Moore pleaded guilty to one count for her role in a sophisticated conspiracy

to steal mail, harvest identifying information, and cash forged paychecks. It is

undisputed that Moore’s co-conspirators stole mail from six Postal Service

“collection boxes.” Based on that number of collection boxes, and for reasons

explained at greater length below, the probation office’s presentence

investigation report (“PSR”) presumed 50 victims per collection box—for a total

of 300 victims—and recommended a 6-level enhancement to Moore’s offense

level. Moore objected to the PSR, urging that the probation office misinterpreted

the Note and that she should receive only a 4-level enhancement. The district

court overruled Moore’s objection and sentenced her based on the PSR’s

Guidelines range determined on the basis of the 6-level enhancement. Moore

timely filed a notice of appeal.

II. Analysis

We review de novo the district court’s interpretation of the Sentencing

Guidelines and Application Notes, applying ordinary rules of statutory

construction.1“When the language of the guideline is unambiguous, the plain

meaning of that language is controlling unless it creates an absurd result.”2 The

Guidelines commentary “is authoritative unless it violates the Constitution or

a federal statute, or is inconsistent with, or a plainly erroneous reading of, that

guideline.”3

1 United States v. Serfass, 684 F.3d 548, 550-51 (5th Cir. 2012).

2

Id. at 551.

3 United States v. Diaz-Corado, 648 F.3d 290, 292 (5th Cir. 2011) (quoting Stinson v.

United States, 508 U.S. 36, 38 (1993)) (internal quotation marks omitted).

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Moore’s offense level was calculated pursuant to § 2B1.1, which applies an

enhancement based on the number of victims: 4 levels if the offense involved 50

or more victims but less than 250, and 6 levels if it involved 250 or more

victims.4 When mail is unlawfully taken, each intended recipient of that mail

is deemed to be a victim.5

Application Note 4 to § 2B1.1 contains special rules for determining the

number of victims based on the particular type of receptacle or receptacles from

which the mail is stolen:

(ii) Special Rule.—A case described in subdivision (C)(i) of this

note that involved—

(I) a United States Postal Service relay box, collection box,

delivery vehicle, satchel, or cart, shall be considered to

have involved at least 50 victims.

(II) a housing unit cluster box or any similar receptacle that

contains multiple mailboxes, whether such receptacle is

owned by the United States Postal Service or otherwise

owned, shall, unless proven otherwise, be presumed to

have involved the number of victims corresponding to

the number of mailboxes in each cluster box or similar

receptacle.6

Notably, sub-sub-paragraph I covers various types of receptacles owned

exclusively by the Postal Service, so any mail stolen from such a receptacle was

still in the Postal Service’s custody and control. Thus, none of that mail had

been sorted by addressee, much less delivered to the addressee, before it was

stolen. By contrast, sub-sub-paragraph II covers “cluster boxes” and other

receptacles that comprise multiple individual mailboxes: Cluster boxes might

4 U.S.S.G. § 2B1.1(b)(2)(B), (C).

5

Id. at cmt. n.4(C)(i).

6

Id. at cmt. n.4(C)(ii).

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belong to the Postal Service but might also (and most frequently do) belong to

private parties or entities, such as office buildings or apartment complexes. 

Important to today’s issue, each separate mailbox within a cluster has already

been assigned to an individual mail addressee: Once mail is placed in a mailbox

within a cluster, that mail is no longer in the custody of the Postal Service; it has

been sorted and delivered to the individual owner or assignee of that particular

mailbox. This is why sub-sub-paragraph II need not presume an arbitrary

number of victims (such as sub-sub-paragraph I does with 50), but proceeds

directly (1) to determine the actual number of boxes in the cluster and then (2)

to count each box’s assignee as one victim.

Moore’s appeal requires us to interpret the Note when, as here, mail is

stolen from more than one of the Postal Service’s own collection boxes under the

provisions in sub-sub-paragraph I—but not its or anyone else’s “cluster” boxes

under II. The probation office simplistically—and mistakenly—reasoned that,

if taking mail from one collection box is presumed to produce at least 50 victims,

then at least 300 victims are presumed to exist when mail is taken from six such

boxes. Consequently, the PSR recommended the 6-level enhancement that

results under § 2B1.1(b)(2)(C) when the offense involves 250 victims or more. 

Moore countered that nothing in sub-sub-paragraph I authorizes

presuming an additional 50 victims for each additional collection box. She

reasons that, in the absence of any proof of the actual number of victims, only 50

victims could be presumed, ergo she should have received only the 4-level

enhancement. 

The parties could not find any case on point from any jurisdiction, and our

own research confirms that vacuum. Given that lack of precedent, we

understand the district court’s reliance on the probation office’s interpretation

of the Note, which, at first glance, might seem plausible. Our de novo review

nevertheless leads us to the conclusion that, under the plain language of the

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Note, the number of collection boxes in excess of one does not increase the

presumed number of victims beyond 50. This plain reading is confirmed by a

comparison to parallel provisions and does not produce an absurd result.

We begin, as we must, with the plain language of the special rule in subsub-paragraph I: “A case [in which undelivered mail was taken] that involved . . .

a United States Postal Service . . . collection box . . . shall be considered to have

involved at least 50 victims.”7 Parsing this language carefully, we first note that,

if the case involved a collection box, it is the case itself, not the collection box or

boxes, that is presumed to have involved at least 50 victims; the collection box

itself does not have victims. And, whether the case involved a collection box is

a straightforward, yes-or-no question: Either it involved such a box or it did not. 

Neither the question thus posed nor its answer changes if the case involved two

boxes, or six boxes, or a box, a satchel, and a truck: The case itself still involved

one of the rule’s named receptacles. 

The probation office went astray by overlooking the introductory language 

in 4(C)(ii) and jumping straight to sub-sub-paragraph I. The probation office

thus read only that a “collection box . . . shall be considered to have involved at

least 50 victims,” which narrow reading produced its flawed syllogism that, ergo,

50 more victims are presumed for each additional collection box. Although the

Sentencing Commission certainly could have chosen to draft the Note that way,

it did not. 

We see no basis in the plain language of the Note for adding 50 presumed

victims for each additional Postal Service receptacle. Accordingly, the

presumption created by the Note is for at least 50 victims, but no more than 50,

regardless of the number of such receptacles involved. Some credible proof is

required to go beyond the presumption and find that there were in fact more

7

Id. at cmt. n.4(C)(ii)(I).

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than 50 victims.8 Here, apart from the Note’s presumption, the record contains

no independent evidence that 250 (or more) victims were actually involved. 

Therefore, only the 4-level § 2B1.1(b)(2)(B) enhancement was applicable.9

As noted above, this plain reading of sub-sub-paragraph I is confirmed by

comparing it to the companion provision in sub-sub-paragraph II, which governs

“housing unit cluster” boxes: “A case . . . that involved . . . a housing unit cluster

box . . . shall, unless proven otherwise, be presumed to have involved the number

of victims corresponding to the number of mailboxes in each cluster box.”10 Subsub-paragraphs I and II both begin with “[a] case . . . that involved,” but that

phrase is followed in each sub-sub-paragraph by its own list of expressly

identified and distinctly different types of mail receptacles—and each provision

directs the sentencing court to draw a different presumption regarding the

number of victims. Based on these differences, if the case involved collection

boxes, whether one or many, then under sub-sub-paragraph I the number of

presumed victims is fixed at 50. Under sub-sub-paragraph II, by contrast, the

total number of victims presumed corresponds precisely to the total number of

receptacles in each of the “clusters” involved. A “collection box” is a single Postal

Service receptacle; a “cluster box” is, by definition, a hive of multiple, separate

receptacles, each of which is assigned to an individual mail addressee for the

purpose of receiving mail delivered from the Postal Service to that

addressee—each of whom is a separate, easily counted “victim.”

8 The dissent urges that the plain language of the Note “does not foreclose increasing

the number of victims” if more than one receptacle is involved. Although the Note does not

foreclose proof of additional victims, it does not allow the court to presume that additional

victims exist.

9 Because the Application Note is unambiguous, we need not apply the rule of lenity in

Moore’s favor. See Serfass, 684 F.3d at 551.

10 U.S.S.G. § 2B1.1 at cmt. n.4(C)(ii)(II) (emphasis added).

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Sub-sub-paragraph II confirms that the Sentencing Commission knows

precisely how to link the number of presumed victims in a case to the number

of mail receptacles involved when it wants to by expressly counting “each . . .

box.” The Commission did just that in sub-sub-paragraph II for “cluster” boxes. 

But, in writing sub-sub-paragraph I, the Commission could not—and therefore

did not—link the presumed number of victims to the number of collection boxes. 

When we apply the venerable interpretation canon of expressio unius est exclusio

alterius, we are further convinced that the Commission’s choice of

language—and the distinction that it produces between the two provisions—was

intentional.11 The incongruity between the Commission’s treatment of collection

boxes and its treatment of cluster boxes results from the Commission’s deliberate

and logical choice.12

Contrary to the assertions of government and the dissent, this does not

produce an absurd result. Rather, the special rule in the Note produces a

reasonable solution to the enigmatic problem of fixing the number of victims

when undelivered mail is taken from a given type of receptacle. For “collection

boxes,” a one-size-fits-all presumption of 50 victims avoids the compounded

uncertainty of “guesstimating” (1) the number of the pieces of mail (2) intended

for an unknowable number of different addressees (3) that were taken from any

of a number receptacles (4) which vary greatly in size and capacity. Indeed, we

can only begin to imagine the troubling outcomes that might result if the

government’s interpretation were credited and each receptacle added an

additional 50 presumed victims. For example, a defendant who took mail from

11 See, e.g., Serfass, 684 F.3d at 552.

12 The dissent purports to see “symmetry” between sub-sub-paragraphs I and II that

simply does not exist and that is not supported by the plain language of those provisions. As

discussed below, “collection boxes” are physically and functionally different from “cluster

boxes,” which difference is reflected in the distinctive structures of the different rules.

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five shoulder satchels carried by postal workers would be presumed to have 250

victims and receive the 6-level enhancement, but another defendant who took

every bit of mail from one Postal Service truck would receive only the 4-level

enhancement, despite the fact that a Postal Service truck would likely contain

much more mail than the five satchels. That would truly be an absurd result.

Although the Commission’s arbitrary 50-victim presumption might either

overstate or understate the actual number of victims in any given case, a single,

across-the-board presumption reduces the burden on the probation office and

results in consistent application of the 4-level enhancement for the number of

victims under § 2B1.1(b)(2)(B) in cases that involve theft of mail from the Postal

Service’s delivery system. And, by setting a floor rather than a ceiling for the

number of presumed victims, the Note still leaves the door open to proof of

additional victims when and if such proof is available. This solution to an

evidentiary problem strikes us as both logical and practical, and anything but

productive of an absurd result.13

Finally, both parties cite the history of the special rules embodied in subsub-paragraphs I and II and the Sentencing Commission’s stated reasons for

adopting them. As our analysis begins and ends with the unambiguous plain

language of the Note, although, we need not, and therefore do not, consider those

sources.14 We nevertheless observe in passing that the Commission’s stated

reasons satisfactorily explain the existence of different rules for different kinds

of mail receptacles. When the Commission promulgated sub-sub-paragraph I,

13 Certainly, the Commission could have taken a different approach, but the mere

existence of reasonable alternatives in no way requires us to conclude that the solution

actually adopted is absurd. And there is nothing absurd about a rule that only partially

relieves the government of its burden of proof at sentencing. See United States v. Teuschler,

689 F.3d 397, 399 (5th Cir. 2012) (“The Government bears the burden of proving by a

preponderance of the relevant and reliable evidence that the facts support a sentencing

enhancement.”)

14 Serfass, 684 F.3d at 551.

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it explained that the special rule was necessary because of “the unique proof

problems often attendant to such offenses.”15 That problem is self-evident: When

a collection box (or truck or satchel) is involved, no characteristic of the

receptacle itself indicates the number of putative victims who were intended to

receive the mail inside that receptacle. Presuming at least 50 victims is an

arbitrary but reasonable way to cope with that inherent uncertainty. 

Several years later, when it added sub-sub-paragraph II to address cluster

boxes, the Commission was more specific in citing “unique proof problems in that

once entry is gained to such a cluster box and mail is removed, it is difficult to

determine the number of persons from whom mail was stolen.”16 Cluster boxes

differ from collection boxes; the number of individual boxes in a cluster assigned

to different addressees allows a more case-specific determination of the number

of victims, at a minimal burden on the probation office. 

These somewhat different “proof problems” help to explain the Sentencing

Commission’s creation of different rules in sub-sub-paragraphs I and II.17 But,

to reiterate, we base our holding on the unambiguous wording of the Note, not

on what we speculate the Sentencing Commission might have been trying to

achieve.

In sum, we conclude that the plain language of Application Note 4(C)(ii)(I)

specifies a presumption of at least 50 victims in a case that involves any

number—whether one or more—of the specific types ofPostalService receptacles

listed in that note. Proof of more than 50 victims is permitted, but the Note does

15

II U.S. Sentencing Guidelines Manual app. C., at 173 (2003).

16

III U.S. Sentencing Guidelines Manual app. C, at 133 (2011).

17

Indeed, if the Commission—when drafting sub-sub-paragraph II years after it

adopted sub-sub-paragraph I—had meant for the same presumption to apply to cluster boxes

as the one applicable to collection boxes and the other types of receptacles listed in sub-subparagraph I, it could have (and presumably would have) simply amended sub-sub-paragraph

I by adding “cluster boxes” to the list.

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not authorize the presumption of more. The district court’s understandable error

was in relying on the PSR’s erroneous multiplication of the number of victims

by the number of collection boxes involved. On this record, Moore should have

received only the 4-level § 2B1.1(b)(2)(B) enhancement applicable to cases

involving at least 50 victims but not 250 or more.

III. Conclusion

We VACATE Moore’s sentence and REMAND for resentencing consistent

with this opinion.

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OWEN, Circuit Judge, dissenting:

I would affirm Moore’s sentence and hold that the district court correctly

construed the sentencing guidelines when it determined that Moore’s crime

involved at least 300 victims. The district court did not err in applying the

corresponding 6-level enhancement. The majority opinion’s reading of

Application Note 4(C) to § 2B1.1 is not supported by the language of that Note

and leads to absurd results.

I

Moore pled guilty to and was convicted of making, possessing, and uttering

a forged and counterfeit security. The district court found that Moore and her

co-defendants caused an actual loss of $91,332.22, and intended a loss of

$115,884.74 as a result of a scheme that spanned more than a year and involved

the theft of mail. The district court calculated the advisory sentencing

guidelines range of imprisonment to be 70 to 87 months and sentenced Moore to

63 months of imprisonment, three years of supervised release, and $91,332.22

in restitution.

The relevant facts are undisputed:Moore admits that mail was stolen from

at least six United States Post Office collection boxes on different dates in

different locations.1 She contends that the district court erred in its

1Moore’s brief concedes that “thefts occurred during the following times,” and sets forth

the following description of seven thefts:

Arlington PO which occurred in April 2010

Oakwood PO which occurred in September 2010

Alta Mesa PO which occurred in November 2010

Handley PO which occurred in January 2011

Trinity PO which occurred in May 2011

8th A venue [sic] PO which occurred in June 2011

7th Street PO which occurred in July 2011.

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interpretation of Application Note 4(C)(ii) when the court concluded that each

mailbox “shall be considered to have involved at least 50 victims”2

and calculated

the number of victims to be 300.

The plain language of the Guidelines contemplates this calculation.3

Application Note 4(C)(ii)(I) provides a special rule for determining the number

of victims in a case involving United States Postal Service receptacles, including

collection boxes:

(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.

(ii) Special Rule.—A case described in subdivision

(C)(i) of this note that involved—

(I) A United States Postal Service relay

box, collection box, delivery vehicle,

satchel, or cart, shall be considered to have

involved at least 50 victims.

(II) A housing unit cluster box or any

similar receptacle that contains multiple

mailboxes, whether such receptacle is

2 U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. n.4(C)(ii)(I) (2011).

3 United States v. Serfass, 684 F.3d 548, 551 (5th Cir. 2012) (“When the language of the

guideline is unambiguous, the plain meaning of that language is controlling unless it creates

an absurd result.”).

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owned by the United States Postal Service

or otherwise owned, shall, unless proven

otherwise, be presumed to have involved

the number of victims corresponding to the

number of mailboxes in each cluster box or

similar receptacle.4

The district court reasoned that because Moore’s offense involved six

collection boxes, the Guidelines direct that each mailbox “shall be considered to

have involved at least 50 victims.”5 This is the correct interpretation of the

Guidelines. The Note says that “a [emphasis added] United States Postal

Service . . . collection box . . . shall be considered to have involved at least 50

victims.”6If “a . . . collection box” “shall be considered to have involved at least

50 victims,”7then six collection boxes are considered to have involved at least

300 victims (6 x 50). The majority opinion mistakenly focuses on the words “A

case,” reasoning that no more than 50 victims can be considered to have been

involved in “A case” involving a mail collection box, regardless of the number of

collection boxes or other receptacles involved in the case.

The majority opinion’s construction of the Guidelines leads to patently

absurd results. What if a case involved thefts from 51 mailboxes, or 75

mailboxes, or 100 mailboxes? The majority opinion says that the “at least 50

victims” phrase in subsection (I) of the Special Rule is a ceiling on the number

4 U.S.S.G. § 2B1.1 cmt. n.4(C).

5

Id.

6

Id.

7

Id.

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of victims that can be “presumed,” regardless of the number of collection boxes

from which mail was stolen in a case. In a case involving 75 mailboxes, the

Government must prove, according to the majority opinion, that at least one

item of mail was in each mailbox beyond the 50th mailbox to exceed a 50-victim

“presumption,” and only the number of items of mail actually proven to have

been in each mailbox will be used to establish the number of victims beyond 50

victims. This is not the intent of the Guidelines.

In amending the commentary to include the collection-box provision, the

Commission explained its reasoning as follows:

A special rule is provided for application of the victim enhancement

for offenses involving United States mail because of (i) the unique

proof problems 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.8

The Guidelines define a victim as “any person who was the intended recipient,

or addressee, of the undelivered United States mail,”9and as the Commission

recognizes, law enforcement will rarely, if ever, be able to identify all of the

intended recipients affected by the theft of mail from a mail collection box or

similar receptacle. The Commission therefore drafted Application Note 4 to say

that if “a case” involved “a United States Postal Service relay box, collection box,

delivery vehicle, satchel, or cart” the case “shall be considered to have involved

at least 50 victims.”10 That language does not foreclose increasing the number

8 U.S. SENTENCING GUIDELINES MANUAL app. C, vol. II, at 173 (2003).

9 U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. n.4(C)(i)(II) (2011).

10

Id. § 2B1.1 cmt. n.4(C)(ii).

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of victims that “a case” “shall be considered to have involved”11if that case

involved more than “a” “relay box, collection box . . . .” If “a case” involved more

than one of the identified mail receptacles or transporters, or it involved a

combination of one or more of the receptacles or transporters enumerated in

(C)(ii)(I), then the directive that “at least 50 victims” shall be considered to have

been involved with respect to a receptacle or transporter requires multiplying

the number of receptacles or transporters in “a case” by 50 to determine the

number of victims “considered to have [been] involved.”

The correct interpretation of this application note is all the more clear

when its companion provision in subsection (II) regarding “a housing unit cluster

box or any similar receptacle” is considered. Subsection (II) immediately follows

the collection box section and the “shall be considered to have involved at least

50 victims” language. The cluster-box provision says:

(II) A housing unit cluster box or any similar receptacle that

contains multiple mailboxes, whether such receptacle is owned by

the United States Postal Service or otherwise owned, shall, unless

proven otherwise, be presumed to have involved the number of

victims corresponding to the number of mailboxes in each cluster

box or similar receptacle.12

The number of victims is presumed to equal the number of individual

mailboxes in the cluster. There is symmetry between subsection (I) and (II),

when properly interpreted. A mailbox within a cluster box is for the use of an

individual or a household. The receptacles or transporters described in (I) are

used to collect or carry the mail for many individuals or households. The

11

Id.

12

Id. § 2B1.1 cmt. n.4(C)(ii)(II).

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directive that each central mail collection box, such as the collection boxes at

issue in this case, or that each delivery truck or mail satchel shall be considered

to have at least 50 victims is entirely congruent with the treatment of unit

cluster boxes. The majority opinion improperly places a constraint on the

number of victims that can be presumed under subsection (I), ignoring the

parallels between it and subsection (II). 

The housing unit cluster-box provision was adopted in 2004, after the

Commission had originally promulgated provisions dealing with collection boxes. 

In adopting the cluster-box provision, the Commission explained that “[t]he

amendment provides a presumption that a theft from such a cluster box involves

the number of victims corresponding to the number of mailboxes contained in

the cluster box.”13 The Commission also explained that “[t]he same rationale for

the original special rule applies to this expansion,” and that rationale was:

(i) unique proof problems in that once entry is gained to such a

cluster box and mail is removed, it is difficult to determine the

number of persons from whom mail was stolen; (ii) the frequently

significant, but difficult to quantify, non-monetary losses; and (iii)

the importance of maintaining the integrity of the United States

mail service. These reasons are equally valid whether the mail

receptacle is owned by the United States Postal Service or is

privately owned.14

A scheme in which six cluster boxes were breached, with 50 individual

mailboxes in each cluster, would have 300 presumed victims. Under the

majority opinion’s interpretation of the collection-box provision, however, a

scheme—like the one in which Moore participated—in which six collection boxes

13 U.S. SENTENCING GUIDELINES MANUAL app. C, vol. III, at 133 (2011).

14

Id. (internal citation omitted).

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were breached, would have a maximum of 50 presumed victims. Such disparate

results cannot be reconciled with the Commission’s identical rationale for

adopting both provisions.

The majority opinion speculates that this disparity can be explained by the

difference between cluster boxes and the receptacles listed in the collection-box

provision, i.e., that “the number of individual boxes in a cluster . . . allows a more

case-specific determination of the number of victims.”15 This explains why the

number of victims per cluster is counted by individual boxes while the number

of victims per collection box (or other receptacle) is counted by a predetermined

amount, such as 50 victims per receptacle. It does not, however, account for the

inconsistency between counting the number of individual mailboxes in each

cluster, on the one hand, and setting a presumed number of victims that remains

constant regardless of the total number of receptacles involved in the scheme,

on the other. The majority opinion maintains that a presumption of “at least 50

victims” for a case involving more than one collection box “leaves the door open

to proof of additional victims when and if such proof is available.”16 But, as the

Commission noted, the very purpose behind adopting the directive in the

application note is that such proof is all too often not available.

In a footnote, the majority opinion suggests that if the Commission “had

meant for the same presumption to apply to cluster boxes as the one applicable

to collection boxes . . . it could have (and presumably would have) simply

amended sub-sub-paragraph I by adding ‘cluster boxes’ to the list.”17 But the

15 Ante at 9.

16 Ante at 8 (emphasis in original).

17 Ante at 9 n.17.

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Commission did not intend for “the same presumption to apply to cluster boxes

as the one applicable to collections boxes.” The majority opinion correctly

explains that because there are an identifiable number of individual mailboxes

within a housing unit cluster box or any similar receptacle that contains

multiple mailboxes, a reasonable presumption may be made that the number of

victims corresponds to the number of mailboxes. It would make no sense to treat

a cluster box the same as a collection box and to deem that there were at least

50 victims involved with regard to a cluster. The cluster might contain ten

mailboxes, or it might contain 200; but the number of mailboxes within a cluster

would be readily ascertainable. There is no reason to choose “at least 50” as the

number of victims that shall be considered to be involved with regard to a cluster

box. There is a reason to choose “at least 50 victims” with regard to each

collection box. At any given moment on any given day, the number of items of

mail in a public mail receptacle such as a collection box can vary widely, and

often, there is no means of proving how many addressees were victims of the

theft. That is why the Commission did not “simply amend[]”18

the Special Rule

in the application note by adding “cluster boxes” to the list that contains

collection boxes. The Commission determined that “at least 50 victims” was a

reasonable number of victims to ascribe to the theft of mail from a public

receptacle like a collection box when the number of victims is rarely

ascertainable. There is no need for a directive like the one applicable to a

collection box when a cluster box is involved. Apparently, the majority opinion

and I agree that the Commission had a good reason for treating a collection box

differently from a cluster box. We do disagree, however, as to how subsection

18

Id.

18

 Case: 12-10630 Document: 00512416481 Page: 18 Date Filed: 10/23/2013
No. 12-10630

(C)(ii)(I) is to be interpreted when “a case” involves theft from more than one

collection box. 

The majority opinion’s strained reading of the Guidelines provides for the

same enhancement even if the criminal scheme spanned months or years and

involved breaches of hundreds of public collection boxes. This is not a reasonable

reading of § 2B1.1 and its application notes.

* * *

I would affirm the district court’s common-sense interpretation of the

Guidelines. I therefore respectfully dissent. 

19

 Case: 12-10630 Document: 00512416481 Page: 19 Date Filed: 10/23/2013