United States Court of Appeals

Fifth Circuit

FILED

July 10, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 06-11239

(Summary Calendar)

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UNITED STATES OF AMERICA,

Plaintiff - 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 guilty to possession of stolen mail in violation of

18 U.S.C. § 1708. In April 2006, the defendant was working for Telesis Courier Service. Part of

hisjob wasto pick-up a pouch ofmisaddressed or misdirected mail piecesfrom a PNC Bank lockbox

operation and take those mail pieces to the post office. After complaints about stolen and

counterfeited checks, the PostalInspection Service investigated PNC Bank’slockbox operation. On
1 An addendum to the presentence investigation report, which the district court adopted,

specifically states, “[The defendant’s] position as a courier did not entail professional or managerial

discretion. . . .” The government did not challenge this finding before the district court and it does

not challenge it here.

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the date of the defendant’s arrest, the investigators sprayed the mail at PNC Bank with an invisible

substance visible only under black light. After the defendant delivered the pouch of PNC Bank mail

to the post office, the investigators found that 15 pieces of mail were missing and stopped the

defendant. A search of the defendant’s vehicle revealed 19 checks with different payees, totaling

$456,000, and the defendant’s hands illuminated under the black light, establishing 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 totaling $1,361,670, which were never used, and had used

three checks to fraudulently draw $303,805. Therefore, the total intended loss attributed to the

defendant was $2,121,475.

In calculating the defendant’s total offense level, the district court applied a two-level

enhancement 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 that significantlyfacilitated the commission or concealment ofthe offense.” Id. 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 professional or managerial discretion (i.e.,

substantial discretionary judgment that is ordinarily given considerable deference).” Id. at comment.

(n.1).1 Rather the district court applied the enhancement based on Application Note 2(A), which

states, “Notwithstanding Application Note 1, or any other provision of this guideline, an adjustment
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under this guideline shall apply to . . . [a]n employee of the United States Postal Service who engages

in the theft or destruction of undelivered United States mail.” Id. at comment. (n.2(A)).

The defendant challenges this enhancement arguing that although he engaged in the theft of

undelivered United States mail, he was not an employee of the United States Postal Service, so this

enhancement cannot be applied to him. It is undisputed that the defendant was not an employee of

the United States Postal Service. Despite recognizing this fact, the district court still applied the

enhancement, finding, “[The defendant] wasin 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 after Booker, is reviewed de novo.

This Court accepts findings of fact made in connection with sentencing unless clearly erroneous.”

United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006) (internal citations and footnotes omitted).

“We regard the Guidelines commentary as authoritative, and when interpreting it, we apply the plain,

ordinaryand commonlyunderstood meaning ofthe words.” United States v. Gonzalez-Ramirez, 477

F.3d 310, 312 (5th Cir. 2007) (footnotes omitted).

We agree with the defendant that U.S.S.G. § 3B1.3 Application Note 2(A), by its terms,

applies only to “employee[s] of the United States Postal Service” and therefore should not have been

applied to the defendant. Although 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 Commission intended this Application Note to reach all individuals who professionally

handle United States mail, such as couriers or mail room employees, it could have said so. See
2 Although not clearly articulated, there is some language from the sentencing transcripts

indicating that the district court may have thought the defendant was a contract employee 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, that the defendant was a contract

employee of the U.S. Postal Service. Therefore, we need not reach the question of whether a

contract employee ofthe U.S. Postal Service can be subjected to U.S.S.G. § 3B1.3 Application Note

2(A).

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United States v. Smaw, 22 F.3d 330, 332-33 (D.C. Cir. 1994) (“The Commission in the second

paragraph did not say ‘positions comparable to an employee of the U.S. Postal Service.’”). Instead,

the Sentencing Commission limited the reach of this 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 from abusing that position to commit a crime, and the purpose of Application Note 2(A) is to

clarify that all employees of the United 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 United States

mail. A courier, such as the defendant, is not, by the nature of his employment status, in a per se

position of trust as related 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 United States mail, a district court must undertake the normal “sophisticated factual

determination,” United States v. Deville, 278 F.3d 500, 508 (5th Cir. 2002), needed to establish that

§ 3B1.3 applies.

The sentence is VACATED and the case is REMANDED for resentencing.