### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10630

UNITED STATES OF AMERICA, Plaintiff–Appellee
v. CRYSTAL DENISE MOORE, Defendant–Appellant

Appeal from the United States District Court f or the Northern District of Texas

Before WIENER, DENNIS, and OWEN, Circuit Judges. WIENER, Circuit Judge: Defendant–Appellant Crystal Denise Moore (“Moore”) a ppeals h er sentence for a conspiracy that involved, inter alia , theft of United States Postal Service (“Postal Service”) mail from a “collection box.” She c on t e n d s t h a t the district court erred in calculating her offense level. Moore’s a ppeal 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 t hat the Note permits the district court t o presume that t he r e w e r e a t least 50 victims when calcula t i n g 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 U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 23, 2013 Ly l e W . Cay ce Clerk Case: 12-10630 Document: 00512416481 Page: 1 Date Filed: 10/23/2013No. 12-10630

the n umber of such r eceptacles that were involved. Accordingly, we vacate and remand for resentencing. I. Facts & Proceedings Moore pleaded guilty t o one count for her role in a sophisticated conspiracy to steal mail, harvest identifying information, and cash f orged paychecks. It is undisputed that Moore’s co-conspirators stole mail f rom six Postal Servic e “collection boxes.” B ased on that number of collection boxes, and fo r reasons explained at greater length below, the probation office’s p r e s entence investigation report (“PSR”) presumed 50 victims per collection b ox —for a total of 300 victims—and recommended a 6-level enh a n c e m ent to M o ore’s offense level. Moore objected to the P SR, u rging that the probation office misinterpreted the Note and that she should receive only a 4-level enhancement. The district court o ve r r u l e d Moore’s objection and s entenced her b ased on the PSR’s Guidelines r ange d e t e r m i n e d on the basis o f the 6-level enhancement. Moore timely filed a notice of appeal. II. Analysis We review de novo the d i s t r i c t court’s interpretation of the Sentencing G u i d elines and Application Notes, applying ordinary rules of statuto r y 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 v iolates the Constitution or
a federal statute, or is inconsistent with, or a p lainly erroneous reading of, that guideline.” 3

1 U ni ted Sta tes v . Serf

a ss , 684 F. 3d 548, 550- 51 ( 5th Cir. 2012)

.
2 Id. at 551.

3 U ni ted S ta tes v . D i az - Cora do , 648 F. 3d 2 9 0 , 292 (5th Cir. 2011) ( quoting Sti nson v . U ni ted Sta tes , 508 U

. S. 36, 38 ( 1993) ) (internal quotation m ark s om itted )

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Moore’s offense level was c alculated pursuant t o § 2B1.1, w hich applies an enhancement based on the number of victims: 4 levels if the offense involved 50

or more vic t ims but less than 250, and 6 levels if it involved 250 or more victims. 4 When mail is unlawfully taken, e ach intended r ecipient of that mail is deemed to be a victim. 5 Application Note 4 to § 2B1.1 c ontains special rules for dete r m i n i n g t he number o f 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) o f t h i s 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 h o using u nit cluster box or any similar receptacle that contains multiple mailb o x e s , wh e ther such receptacle is owned by the United States Postal Service or o therwise owned, s hall, u nless p roven otherwise, b e 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 r e c e p t acles owned exclusively by the P ostal Service, so any mail stolen from such a receptacle was
s t i l l i n the Postal Service’s custody and control. T h us, none of that mail h a d been s o rted by addressee, much less delivered to the a ddressee, before it was stolen. By contrast, s ub-sub-paragraph II c overs “cluster boxes” and other receptacles t h a t comprise multiple individual mailboxes: Cluster boxes might

4 U

. S. S. G

. § 2B1. 1(b) ( 2) ( B) , ( C)

.
5 Id. at cm t. n. 4( C ) (i)

.
6 Id. at cm t. n. 4( C ) (ii)

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b e l o n g t o the Postal S ervice b ut might also (and most frequently do) belong to private parties or entities, such as office buildings or a p a r t m ent complexes. Important to today’s issue, each separate mailbox within a c l uster has already been assigned to an individual mail a ddressee: O nce mail is placed in a mailbox within a cluster, that mail is no longer i n the custody of the P ostal Service; it has been sorted and delivered to the individual owner or assignee of that particular mailbox. This is why sub-sub-paragraph II n e e d n o t presume an arbitrary number of victims (su c h a s sub-sub-paragraph I d o es 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. M o o r e ’s appeal requires u s to interpret t h e Note when, as here, mail i s stolen f rom more than one of the Postal Service’s o wn 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 l e ast 50 victims, then at least 300 victims are presumed to exist when mail is taken from six such boxes. Consequent l y, the PSR recommended the 6-level enhancement that results under § 2 B1

. 1 (b)(2)(C) when t he offense i nvolves 250 victims o r more. Moore countered that nothing i n sub-sub-p a r a g r a ph I authorizes presuming an additional 50 victims for each additional col lection box. She

reasons that, in the absence of any proof o f t he actual number of victims, only 50 victims c ould be presumed, ergo she s hould have received only the 4

- l e v e l enhancement. The parties could not find any case on point from any jurisdiction, and our
own research confirms that vacuum. Given t h at lack of prece d e n t , we understand the district court’s reliance on the probation office’s interpretation of the N ote, which, at first glance, might s ee m p l a u sible. Our de novo review nevertheless l e a d s u s to the conclusion that, u nder the plain l a nguage of the

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Note, the number of collection boxes in excess of o n e d o e s n o t i ncrease the presumed number of victims beyond 50. This plain reading is c onfirmed by a comparison to parallel provisions and does not produce an absurd result. We begin, a s w e must, with the plain l anguage 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 5 0 vi ctims.” 7 Parsing this language carefully, w e first note that, if the case involved a collection box, it is the case itself, not the c o llection box or boxes, that i s presumed to have involved at least 5 0 victims; the collection b ox itself does not have victims. And, whether the case i nvolved a collection box is

a straightforward, yes-or-no question: Either it involved such a box or i t did not. Neither the question thus posed nor its answer changes i f the case involved two boxes, or six boxes, or a b ox, a satchel, and a truck: The c a se itself still i nvolved one of the rule’s named receptacles. The probation office went astray b y overlooking the i n troductory language in 4(C)(ii) and j umping s traight 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 p roduced its flawed syllogism that, ergo, 50 m ore victims are presumed for each additional collection box. Although the Sentencing Commission c ertainly could have chosen to draft the Note that way, it did not. We see n o basis in the plain language of the Note for adding 50 presumed victims for each additional Postal S ervice r e c e p t a cle. Accordingly, the presumption created b y the Note is for a t least 50 victims, but no more than 50, regardless of the number of such receptacles inv o l v e d. Some credible proof is required to go beyo n d t h e p r esumption and find that there were in fact more

7 Id. at cm t. n. 4( C ) (ii) ( I)

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than 50 victims. 8 Here, apart from the Note’s presumption, t he record c ontains

no independent evidence that 250 (or mo r e ) v i c tims were actually involved. Therefore, only the 4-level § 2B1.1(b)(2)(B) enhancement was applicable. 9 As noted above, this plain r eading of sub-sub-paragraph I i s confirmed by comparing it to the companion provision in s ub-sub-paragraph II, which governs “housing unit cluster” boxes: “A case . . . t hat i nvolved

. . . a housing unit cluster box

. . . shall, unless p roven otherwise, be presumed t o have involved t he number of victims corresponding to the number o f mailboxes in each cluster box.” 1 0 Subs u b -paragraphs I a nd II both begin with “[a] case . . . that involved,” but t h a t phr a s e i s followed in each sub-sub-paragraph by its own list of expressly identified a nd distinctly different types o f mail receptacles—and each provision directs the sentencing court to draw a different p re s u m p t i o n r egarding the number of victi m s. Based o n these differences, if the case involved collection boxes, w hether one or many, t h e n under sub-sub-paragraph I t he n umber of presumed victims is fixed at 50. Under sub-sub-paragraph II, by contrast, the t o t a l n umber of victims p resumed corresponds precisely to the total n umbe r o f 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 o f which i s assigned to an i ndividual mail addressee for the
purpose of receiving mail delivered from the Posta l S e r vice to that addressee—each of whom is a separate, easily counted “victim.”

8 The d is sent urges that the p lain language of the N ote “d oes not f oreclos e increas ing the num ber of victim s” if m ore th a n o n e recep tacle is involved

. Although the N ote d oes not f oreclos e p roof o f a d d i t i o nal victim s , it d oes not allow the court to p resum e that ad d itional victim s exis t.

9 Becaus e the Ap p lication N ote is unam biguous , w e need not ap p ly the rule of lenity in M oore’s f

avor. See Serf

a ss , 684 F. 3d at 551.

1 0 U

. S. S. G. § 2B1. 1 at cm t. n. 4( C) (ii) (II) ( em p has is ad ded)

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Sub-su b

- p aragraph II confirms that the Sentencing Commission knows
p r e c i s e l y how to link the number of presumed victims in a case t o t he numbe r of mail receptacles involved when it wants to by expre s s l y c o u n t i ng “ e ach

. . . box.” T he Commission did just that in sub-sub-paragraph II for “cluster” boxes. But, in writing sub-sub-paragraph I, the Commission c o uld 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 a re further convinced that the C o m m i ssion’s choice of language—and the distinction that it produces between t he two provi s i o n s—was intentional. 1 1 T he incongruity between the Commission’s treatment of collection boxes and its treatment of c l u s t e r b o x e s r e s ults from the Commission’s deliberate and logical choice. 1 2 Contrary to the a ssertions of gove r n m e n t and the dissent, this does not p r o d u c e a n absurd result. Rather, the special rule in t he Note produces a reasonable s ol u t i on to the enigmatic problem o f fixing the number of victims when u ndelivered mail is t aken from a given type of receptacle. F or “collection boxe s , ” a one-size-fits-all presumption of 5 0 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 a nd capacity. Indeed, we
can only b egin t o imagine the troubling outcomes that might result if the government’s interpretation were credited and each receptacle added an additional 50 presumed vi ctims. For example, a defendant who took mail from

1 1 See, e. g. , Serf

a ss , 684 F. 3d at 552.

1 2 The dis s ent p urp orts to see “s ym m etry” betw een s ub- s ub- p aragrap hs I and II that s im ply d oes not exis t and that is not s up p orted by the p lain language of thos e p rovis ions

. As d is cus s ed below , “collection boxes ” are p h y s i cally and f unctionally dif

f erent f rom “clus ter boxes , ” w hich dif

f erence is ref

lected in the d is tinctive s tructures of the d if f erent rules

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five shoulder s atchels carried by postal workers would be presumed to have 250 victims and receive t h e 6

- level enhancement, but another defendant who t ook

e very bit of mail from one Postal Service truck would receive only the 4-le v e l 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 n umber o f victims i n any given case, a single, across-the-board presumption reduces t he burden o n the p robation o ffice and results in consistent a pplication of t he 4-level enhancement f or t h e n u m b er of victims under § 2B1.1(b)(2)(B) in cases that involve theft of mail from t he Postal Service’s delivery sy s t e m . And, by setting a f loor rather than a ceiling for the numbe r of p resumed victims, the N o te still leaves the door open to proof of

a d d i t i o n al victims when and if such proof is available. This solution to an evidentiary p roblem s t r i k e s u s as both logical and practical, and anything but productive of an absurd result. 1 3 Finally, both parties cite t he history of the special rules embodied in subsub-paragraphs I and II and the Sentencing Commission’s s t a t ed r e asons for adopting them. As our analys i s b e g i ns and ends w ith the unambiguous plain language of the N ote, although, we need not, and therefore d o not, consider those

sources. 1 4 We nevertheless observe in passing that th e C ommission’s stated

reasons satisfactorily explain the existence of different rules f or different kinds of mail receptacles. When the Commission p romulgated sub-sub-paragraph I,

1 3 Certainly, the Com m is s ion could have tak en a d if f erent ap p roach, but the mere exis tence of reas onable alternatives i n n o way requires us to conclud e that the s olution actually ad op ted is abs urd

. And there is nothing abs urd about a rule that only p ar t ially relieves the governm ent of its burd en of p roof at s entencing. See U ni ted S t a t es v . Teuschl er , 689 F. 3d 397, 399 ( 5th Cir. 2012) ( “Th e G o ve r n m ent bears the burd en of p roving by a p rep ond erance of the releva n t a n d reliable evid ence that the f acts s up p ort a sentencing enhancem ent. ”)

1 4 Serf a ss , 684 F. 3dat 551. 8 Case: 12-10630 Document: 00512416481 Page: 8 Date Filed: 10/23/2013No. 12-10630

it e xplained that the special rule was necessary because of “the unique proof problems often a ttendant to such offenses.” 1 5 That problem i s s e lf -evident: When

a collection box (or truck or satchel) is i n v o lved, no characteristic of the receptacle itself indicates the number of putative victims who were intended to receive the mail insi d e t h a t receptacle. Presuming at l e ast 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 m ore specific in citing “unique proof problems in that

once entry is gained t o such a cluster box and mail is removed, it is difficult to determine the number of persons from whom mail was stolen.” 1 6 Cluster boxes differ f rom collection boxes; the number of individual boxes in a cluster a ssigned to different addressees allows a more case-specific d etermination of the number of victims, at a minimal burden on the probation office. These s omewhat different “proof problems” help to explain the Sentencing Commission’s creation of different rules in sub-sub-paragraphs I and II. 1 7 But, to reiterate, we base our holding on the unambiguous wording of the Note, not

on what we speculate the S ente n cing C ommission 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 l east 50 victim s i n a c a se that i nvolves any

n u mb e r

—whether one or more—of the specific types o f P o s t al S e rvi c e r e c e p t a c l e s listed i n t hat n ote. Proof of more than 50 victims is permitted, but the Note does

1 5 II U

. S. Sentenci ng G ui del i nes M a nua l ap p . C. , at 173 ( 2003)

.
1 6 I II U

. S

. Sentenci ng G ui del i nes M a nua l ap p . C, at 133 ( 2011)

.
1 7 I nd ee d , if the C om mis s ion—w hen d raf ting s ub- s ub- p aragrap h II years af ter it ad op ted s ub- s ub- p aragrap h I—had m eant f or the s am e p res um p tion to ap p ly to clus ter boxes as the one ap p licable to collection boxes and the other typ es of recep tacles lis ted in s ub- s ubp aragrap h I, it could have (and p res um ably would have) s im p ly am end ed s ub- s ub- p aragrap h I by ad d ing “clus ter boxes ” to the lis t. 9 Case: 12-10630 Document: 00512416481 Page: 9 Date Filed: 10/23/2013No. 12-10630

not authorize the presumption o f m o r e . Th e di strict court’s understandable error
was in relying on the PSR’s erroneous multiplication of th e n umber of victims by t h e n umber of collection boxes involved. On this record, Moore should have received only the 4-level § 2 B1.1(b)(2)(B) enhancement app l i c able to cases involving at least 50 victims but not 250 or more. III. Conclusion We VACATE Moore’s sentence a nd REMAND for resentencing consistent with this opinion.

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OWEN, Circuit Judge, dissenting: I w ould affirm Moore’s sentence and hold that t he district c ourt c orrectly construed the sentencing guidelines when it determined that Moore’s crime involved a t l east 300 victims. The district court did not err in applying the corresponding 6-level enhancement

. T he majority o pinion’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, p o s s e s s i n g , a nd uttering

a forged and counterfeit security. The district court found that Moore and her co-defendants c aused an actual loss of $ 9 1 , 332.22, and i n tended a loss of $115,884.74 as a result of a scheme that spanned m ore than a year and i nvolved the theft of mail. The district court c a lculated the a dvisory s e n t e n cing guidelines range of i mprisonment to be 7 0 to 87 months a nd sentenced Moore to 63 months of imprisonment, three years of supervised release, and $91,332.22 in restitution. The relevant facts are undisputed : M o o r e a d m it s th at mail was stolen from at least six United States Post Office collection b o x e s on different dates in different l ocations. 1 She contends t hat t he distri ct court e rred in its

1 M oore’s brief conced es that “thef ts occurred during the follow ing tim es ,” and s ets f orth the f ollow ing des crip tion of s even thef ts : Arlington P O w hich occurred in Ap ril 2010 O ak w ood PO w hich occurred in Sep tem ber 2010 Alta M es a PO w hich occurred in N ovem ber 2010 H and ley PO w hich occurred in January 2011 Trinity PO w hich occurred in May 2011 8th A venue [s ic] PO w hich occurred in June 2011 7th Street P O w hich occurred in July 2011. 11 Case: 12-10630 Document: 00512416481 Page: 11 Date Filed: 10/23/2013No. 12-10630

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 c alculation. 3 Application N ote 4(C)(ii)(I) p rovides a s p e cial rule for determining the number of victims in a case involving United States Postal Service r eceptacles, including collection boxes: (C) Undelivered United States Mail.— (i) In General.—In a case in which u ndeli v ered United S t ates mail w as 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, transmi t t e d, or possessed was undelivered U nited States m ail, “victim” means (I) a ny victim as defined in Application Note 1; or (II) any person who w a s t h e intended recipient, o r addressee, of the undelivered United States mail. (ii) S p e c i a l R ule.—A case described in s u b d i v i s i o n (C)(i) of this note that involved— (I) A United States P o s t a l Service relay box, collection box, delivery vehicle, satchel, or c art, shall be c onsidered to have involved at least 50 victims. ( I I) A housing unit c luster box o r a n y similar receptacle that contains multiple mailboxes, whether such r eceptacle is

2 U

. S. S E NT E N C I N G G U I DE L I N E S MANU AL § 2B1. 1 cm t. n. 4( C) (ii) ( I) ( 2011)

.
3 U ni ted Sta t es v. Serf

a ss , 684 F. 3d 548, 551 (5th Cir. 2012) (“When the language of the guid eline is unam biguous , the p lain m eaning of that language is controlling unles s it creates an abs urd res ult. ”)

. 12 Case: 12-10630 Document: 00512416481 Page: 12 Date Filed: 10/23/2013No. 12-10630 owned by the United States Postal Service or ot herwise owned, shall, u nless proven oth e r w i se, be presumed to have i nvolved the number of victims corresponding to t h e number o f mailboxes i n each cluster box or similar receptacle. 4

The district court r e asoned 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 T his is t h e c o r r ect interpretation of the Guidelines. The Note says that “ a [ emphasis added] United St a tes Postal Service

. . . collection box

. . . shall b e c o n s i d e r e d t o have i nvolved at least 50 victims.” 6 If “a

. . . collection box” “shall be considered t o have involved at least 50 victims,” 7 then six collection boxes are considered to h ave inv o l v e d a t least 300 victims (6 x 50). The majority opinion mistakenly focuses on the words “A case,” reasoning th at no m o r e t h a n 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 t he Guidelines leads to patently abs u r d r e sults. What if a case i nvolved thefts f rom 51 mailboxes, or 75 mailboxes, o r 1 0 0 m ailboxes? The majority opinion s ays 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 cm t. n. 4( C)

.
5 Id

.
6 Id

.
7 Id

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of victims that can b e “presumed,” r egardless of the number of collection boxes from which mail was stolen in a case. I n a case involvin g 7 5 m ailboxes, the Government must prove, according t o the majority o pinion, that a t least one item o f mail was in e ach mailbox beyond the 50th mailbox to e xceed a 50-victim “presumption,” and only the number o f items of mail actually p r o v e n t o have been in each mailbox will be used to establish the number o f victims beyond 50 victims. This is not the intent of the Guidelines. In amending the commentary t o include the c ollection-box provision, the Commission explained its reasoning as follows: A s pecial rule is provided for application of the victim enhancement for offenses involvin g U n i t e d States mail because of (i) the u nique proof problems often a ttendant to such offenses, (ii) the frequently significant, but difficult to quantify, non-monetary losses i n such offenses, a nd (iii) the i mportance of maintaining the i ntegrity of t h e United States mail. 8 The Guidelines define a victim as “any person who was the intended r ecipient,

or addressee, of the undelivered United States mail,” 9 a nd as the C ommission recognizes, law enforce m e n t w ill rarely, if ever, be able to identify a ll of the intended recipients affected by the theft of mail from a mail collection box or similar r eceptacle. T he Commission therefore drafted Application Note 4 to say that if “a case” involved “a United States P ostal Service relay box, collection box, delivery vehicle, satchel, or cart” the case “shall be considered to have i nvolved at least 50 victims.” 1 0 That language does not foreclose increasing the number

8 U

. S. S E NT E N C I N G G U I DE L I N E S MANU ALap p. C, vol. I I , at 173 ( 2003)

.
9 U

. S. S E NT E N C I N G G U I DE L I N E S MANU AL § 2B1. 1 cm t. n. 4( C) (i) ( II) ( 2011)

.
1 0 Id

. § 2B1. 1 cm t. n. 4( C) (ii)

. 14 Case: 12-10630 Document: 00512416481 Page: 14 Date Filed: 10/23/2013No. 12-10630

of victims that “a case” “shall be considered to have i n v o lved” 1 1 if that case involved more than “a” “relay box, collection box

. . . .” If “a case” involved more t h an one of the identified mail r eceptacles or transporters, or it involved a combination of one o r m ore of the receptacles o r transporters enumerated in (C)(ii)(I), then the directive that “at least 50 victims” shall b e considered to have been invol v e d w i t h respect to a receptacle o r transporter requires m ultiplying the number of receptacles or transporter s i n “ a case” by 50 to d etermine the number of victims “considered to have [been] involved.” The correct interpret a t i o n of t his application note is all the more clear when its companion p rovision in subsecti o n (I I) r e g ar ding “a housing unit cluster box or any similar r eceptacle” is considered. Subsection (II) immediately follows the collection box section and the “shall be considered t o have i nv olved at least 50 victims” language. The cluster-box provision says: (II) A housing unit c l u s t e r box or any similar receptacle that con t ains multiple m ailboxes, whether such receptacle is owned by the United States Postal Service or otherwise owned, shall, unless p r o v e n o therwise, be presumed to have involved the number of victim s corresponding t o the number of mailboxes in each cluster box or similar receptacle. 1 2

T h e number o f victims is presumed to e qual the number o f individ u a l mailboxes in the cluster. There is symmetry between sub s e c t i o n ( I) and (II), when properly interpreted. A mailbox w i t hin a cluster box is for the u se of an individual or a h ousehold. The receptacles or transporters described in (I) are used to collect or carry the mail f or many individuals or households. The

1 1 Id

.
1 2 Id. § 2B1. 1 cm t. n. 4( C) (ii) ( II)

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directive that e a ch central mail collection box, such as the collection boxes at issue in this case, o r that each delivery truck or mail satchel shall b e considered to have at least 50 vic t i m s i s entirely congruent with t he treatment of unit cluster boxes. The majority opinion imprope r l y p laces a constraint on the number of victims that c an be presumed under s u b s e c tion (I), ignoring the parallels between it and subsection (II). The ho u s i n g u nit cluster-box provision was adopted in 2 004, a fter the C o m m i s s i o n had originally promulgated p r ovisio n s d e ali n g w ith c o ll e c ti o n b o x e s . In adopti ng the cluster-box provision, the Commission explained that “[t]he amendment p rovides a presumption that a theft f rom such a cluster box involves the n umber of victims c o r responding to the number of mailboxes contained in the c luster box.” 1 3 The Commission also explained that “ [t]he same rationale for the original special rule applies to this expansion,” and that rationale was: (i) unique p roof pr o b l ems in that once entry is gained to such a c l u ster box and mail is r emoved, it i s difficult to determin e t h e n u m b er o f persons from whom m ail was stolen; (ii) the frequently significant, b ut difficult to quantify, non-mone t ary losses; and (iii) the i m p ortance o f maintaining the integrity of the United States mail service. T hes e r e a sons are equally valid whether the mail
r e c e p t a c le is owned b y the United States Postal Service or is privately owned. 1 4 A scheme in which six cluster boxes were breached, w ith 50 individual mailboxes in each clu s t er, w ould have 300 presumed victims. Under the majority opinion’s interpretation of the collection-box provision, h o wever, a scheme—like the one in which Moore participated—in which six collection boxes

1 3 U

. S. S E NT E N C I N G G U I DE L I N E S MANU AL ap p . C , vol. III, at 133 ( 2011)

.
1 4 Id. (internal citation om itted )

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were breached, would have a maximum o f 50 presumed victims. Such disparate results cannot be reconcile d w ith t he Commission’s identical r a tionale for adopting both provisions. The majority o pi ni o n s p e culates that this disparity can b e explained by the difference between c luster boxes and the receptacles listed in the collection-box provision, i.e., that “the number of individual b oxes i n a cluster

. . . a llows a more case-specific determination of the number of victims.” 1 5This explains why the number of victims per cluster is c ounted b y individual boxes while the number of victims per collection box (or other receptacle) i s counted by a predetermined amount, such as 5 0 victims per receptacle. It does n ot, however, account for the inconsistency b etween counting the number of individual mailboxes in each cluster , on the one h and, and setting a presumed number of victims that remains constant regardless of the total number o f receptacles involved in the scheme,

on the other. The majority opinion m aintains that a presumption of “at least 50 victims” for a c ase involving more than one collection box “leaves t he door open to proof of additional victims when and if s u ch proof i s available.” 1 6 But, as the Commission noted, the v e r y 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 f or the same presumption to a pply to cluster boxes as t he one applicable to c o llect i o n b o x e s . . . it could have (and presumably would h ave) simply amended sub-sub-paragraph I by adding ‘cluster b oxes’ to the list.” 17 But the

1 5 A nte at 9.

1 6 A nte at 8 ( em phas is in original)

.
1 7 A nte at 9 n. 17. 17 Case: 12-10630 Document: 00512416481 Page: 17 Date Filed: 10/23/2013No. 12-10630

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

as the one applicable to collections boxes.” The majorit y opinion c orrectly explains that because there a re an identifiable number of individual mailboxes

w i t h i n a h ousing unit cluster box o r any similar receptacle t h at c ontain s multiple mailboxes, a reasonable presumption may be made that the number of victims corresponds to the number of m ailboxes. It would make n o sense to treat a cluster box the same as a collection box and to deem that there were at least 50 v i c t ims involved w ith regard to a c luster. The cluster m ight contain ten mailboxes, or i t might c ontain 200; but the number of mailboxes w ithin a cluster would be readily ascertainable. There is no reason to choose “at least 5 0” as the number of victims that s hall be considered t o be involved with regard to a cluster b o x. T here is a r eason to choose “at least 50 victims” with reg a r d t o e a c h collection box. At any given m oment o n any given day, the number of items of

m a i l i n a p ublic mail receptacle such as a collection b ox can vary w idely , a n d often, there is no m e a ns of proving how many a d d r essees were victims of the theft. That is why the Commission did not “simply amend[]” 1 8 the Special Rule in t he application note by adding “cluster b oxes” to the l i s t t h at c ontains collection boxes. The C ommission determined that “ a t l e ast 5 0 victims” was a reasonable number of victims to ascribe to the theft o f mail f r o m a public receptacle like a collection box when t h e n u mber of victims is rarely ascertainable. T h e re is no need for a directive like t he one applicable to a collection b ox 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

1 8 Id

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(C)(ii)(I) is to be i nterpreted whe n “ a c a s e ” involves theft from more than one collection box. The majority o pinion’s strained reading of the Guidelines provides for the

same e nhancement even if the c r i m i n a l scheme spanned months or years and involved breaches o f hundreds of public collection boxes. This is not a reasonable reading of § 2B1.1 and its application notes.

* * *
I w o u l d a ffirm the district court’s common-sense i nterpretation of the Guidelines. I therefore respectfully dissent.

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