United States Court of Appeals Fifth Circuit 

## FILED July 10, 2007 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________ No. 06-11239 (Sum mary Calendar)

_________________ UNITED STATES OF AMERICA,

Pl aint iff - Appellee,

versus AWUNOR JACKSON IKECHUKWU, Defendant - Appellant.

Appeal from the United States District Court For the Northern District of Texas

3:06-CR-149 Before HIGGINBOTHAM, BARKSDALE and GARZA, Circuit Judges. EMILIO M. GARZA, Circuit Judge: The defendant, Awunor Ikechukwu, pled guilt y to possession of stolen mail in vio lat io n of 18 U.S.C. § 1708. In April 2006, the defendant was working for Telesis Courier Service. Part of his jo b was to pick-up a pouch of misaddressed or misdirected mail pieces from a PNC Bank lo ckbox operation and take th ose mail pieces t o th e post of fice. After complaints about stolen and counterfeited checks, the Postal Inspection Service invest igated PNC Bank’s lo ckbox operation. On1 An addendum to the presentence invest igation report, which the district court adopted,

specifically states, “[The defendant’s] position as a courier did not entail prof essional or managerial discretion. . . .” The government did not challenge this finding before the district court and it does not challenge it here. -2- the date of the defendant’s arrest, the investigators sprayed the mail at PNC Bank with an invisible substance visible only under black light

. Aft er the defendant delivered the pouch of PNC Bank mail to the post of

fice, the invest igators fo und th at 15 pieces of mail were missing and stopped the defendant. A search o f the defendant’s vehicle revealed 19 checks with different payees, totaling $456,000, and the defendant’s hands illuminat ed under the black light , est ablishing that he had handled the mail inside the pouch. The defendant consented to an interview and admitted to stealing the mail out of the pouch and keeping the checks in his vehicle. The investigators further found that the defendant had counterfeited checks total ing $1,361,670, which were never used, and had used th ree checks to fraudulently draw $303,805. Therefore, the total int ended loss attributed to the defendant was $2,121,475. In calculating the defendant’s total of fense level, the district court applied a two-level enhanceme nt under United States Sentencing Guidelines (“U.S.S.G.”) § 3B1.3 (2005). This enhancement applies “[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner th at significant ly facilit ated the com missio n or concealment of the of fense.” I d. The district court did not apply the enhancement based on Application Note 1, which defines “a position of public or private trust” as a position “characterized by prof essional or managerial discretion (i .e., substantial discretionary judgment th at is ordinarily given considerable deference).” I d. at com ment . (n.1). 1 Rather the district court applied the enhancement based on Application Note 2(A), which states, “Notwith standing Application Note 1, or any other provision of this guideline, an adjustment-3-

under this guideline shall apply to . . . [a]n employee of the Unit ed States Postal Service who engages in t he theft or destruction of undelivered United States mail.” Id. at com ment . (n.2(A)). The defendant challenges this enhancement arguing th at alt hough he engaged in t he theft of undelivered Unit ed States mail, he was not an employee of the Unit ed States Postal Service, so this enhancement cannot be applied to him. It i s undisputed that the defendant was not an employee of the Unit ed St ates Postal Service. Despite recognizing this fact, the district court still applied the enhancement, finding, “[The defendant] was in the shoes of a postal employee. He was handling mail. He was doing what a postal employee does.” The district court went on to say , “[T]he Guidelines have specifically carved out an exception for postal employees, and that is to deter individuals that handle mail from destroying or stealing mail. That is the purpose of that enhancement.” “The district court's application of the Guidelines, even aft er Booker , is reviewed de novo . This Court accepts f

indings of fact made in connection with sentencing unless clearly erroneous.” United States v. Smith , 440 F.3d 704, 706 (5th Cir. 2006) (int ernal cit ations and fo otn otes om it ted). “We regard the Guidelines com ment ary as authoritative, and when int erpreting it , we apply the plain, ordinary and com

mo nly understood meaning of the words.” U nited States v. Gonzalez-Ramirez , 477 F.3d 310, 312 (5th Cir. 2007) (footnotes omitted). We agree wit h the defendant th at U.S.S.G. § 3B1.3 Appl ication Note 2(A), by its terms, applies only to “emplo yee[s] of the Unit ed States Postal Service” and therefore should not have been applied to the d e fendant. Alt hough he was a courier who regularly transported pieces of United States mail, the defendant was not an employee of the United States Postal Service. Had the Sentencing Com

missio n int ended this Application Note to reach all individuals who prof essionally handle Unit ed States mail, such as couriers or mail room employees, it could have said so. S ee2 Alt hough not clearly articulated, th ere i s some language from the sentencing transcripts

indicating th at the district court may have th ought the defendant was a contract em ployee of U.S. Postal Service. But there is no evidence in the record supporting such a finding and the government does not argue on appeal, nor did it argue before the district court, th at the defendant was a contract employee of the U.S. Post al Service. Theref ore, we need not reach the question of whether a contract employee of the U.S. Postal Service can be subjected to U.S.S.G. § 3B1.3 Application Note 2(A). -4- United States v. Smaw , 22 F.3d 330, 332-33 (D.C. Cir. 1994) (“The Commission in the second paragraph did not say ‘positions com parable to an employee of the U.S. Postal Service.’”). Instead, the Sentencing Com

missio n limit ed the reach of th is Application Note based on the defendant’s employment status. Thus, this Application Note can only be applied to “employee[s] of the United States Postal Service.” 2 We further note that the purpose of this enhancement is to deter individuals in a position of trust f rom abusing that position to commit a crime, and the purpose of Application Note 2(A) is to clarify th at all employees of the Unit ed States Postal Service are, by the nature of their employment status, in a per se position of trust as related to the theft or destruction of undelivered Unit ed States mail. A co uri er, such as the defendant, is not, by the nature of his employment status, in a p er se position of trust as rel ated to the theft or destruction of undelivered United States mail. Thus, to apply U.S.S.G. § 3B1.3 to a non-Postal Service employee convicted of the theft or destruction of undelivered Unit ed States mail, a di strict court m ust undertake the normal “sophisticated factual determ inat io n,” United States v. Deville , 278 F.3d 500, 508 (5th Cir. 2002), needed to establish th at § 3B1.3 applies. The sentence is VACATED and the case is REMANDED for resentencing.