                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                IN THE UNITED STATES COURT OF APPEALS                  July 18, 2003

                          FOR THE FIFTH CIRCUIT                  Charles R. Fulbruge III
                                                                         Clerk

                               No. 02-20992
                             Summary Calendar


                        UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

                               JERRY LEE GRAY,

                                                     Defendant-Appellant.


            Appeal from the United States District Court
                 for the Southern District of Texas
                           (H-02-CR-214-1)


Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jerry Lee Gray pleaded guilty to destruction of letter boxes

intended and used for the receipt and delivery of mail; he was

sentenced, inter alia, to 21 months’ imprisonment.             Gray and his

coconspirator   pried    off    the   mailbox    panels   in   an   apartment

building,   exposing    42   individual     mailboxes.     The      building’s

security guard informed police that mail was in some of the




     *
        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this opinion should not be published and is not precedent except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.
individual boxes, but the record does not reflect how many of them

contained mail.

       The probation officer recommended adding two levels to Gray’s

base    offense   level,   pursuant   to     Sentencing   Guidelines     §

2B1.1(b)(2)(A), because there were more than ten and fewer than 50

victims.   Gray objected to this adjustment, contending:         under the

Guidelines, there must be mail inside a mailbox for the owner to be

considered a victim; and, because there was no indication how many

boxes contained mail, there was insufficient evidence to show more

than ten    victims.   The   probation     officer   responded   that   the

Guidelines require only that the object of the offense involve the

theft of mail.    The district court overruled Gray’s objection.

       We review interpretation of the Guidelines de novo; factual

findings, for clear error.    E.g., United States v. Claiborne, 132

F.3d 253, 254 (5th Cir.), cert. denied, 523 U.S. 1144 (1998).           As

noted, § 2B1.1(b)(2)(A) provides for a two-level adjustment if the

offense involved ten or more, but fewer than 50, victims.

                 In a case in which undelivered United
            States mail was taken, or the taking of such
            item was an object of the offense, ...
            ‘victim’ means [(1) any person who sustained
            any part of an actual (financial) loss or
            bodily injury from the offense, or (2)] who
            was the intended recipient, or addressee, of
            the undelivered United States mail.

§ 2B1.1, cmt. n.3(B)(i) (emphasis added).            “Undelivered United

States mail” means “mail that has not actually been received by the



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addressee or his agent (e.g., mail taken from the addressee’s

mailbox)”. § 2B1.1, cmt. n.3(B)(iii).

       Neither of the definitions of “victim” are applicable to the

42    owners,   absent   evidence    that   they   suffered   damage   or    had

undelivered mail.        The management company, not the tenants, paid

for the repairs to the boxes and was thus the only known economic

victim.      Moreover, as stated, there is no indication that Gray or

his coconspirator actually removed mail from any of the individual

mailboxes or that any mail went otherwise undelivered.

       Presumably the taking of undelivered mail inside the boxes was

the object of the offense, and the intended recipients of that mail

were its intended victims.            Thus, anyone who had mail could

properly be counted as a victim for purposes of the Guideline.

Again, however, there is no indication that this group was at least

ten in number.

       The Government relies, in part, on a “special rule” involving

undelivered mail in a Postal Service box, vehicle, satchel, or

cart, and for which there are unique proof problems concerning the

number of victims.          See U.S.S.G. § 2B1.1, cmt. n. 3(b)(ii).

Needless to say, the “special rule” is not applicable.

       The application of the number-of-victims adjustment is VACATED

and    the   case   REMANDED   for   resentencing    consistent   with      this

opinion.

                                                    VACATED and REMANDED


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