          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                   FILED
                                                                 October 20, 2008
                                No. 07-20917
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

DIANA QUINONES

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 4:07-CR-58-ALL


Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
      Diana Quinones, a rural mail carrier in Cypress, Texas, was convicted by
a jury of possession of stolen mail in violation of 18 U.S.C. § 1708. The district
court sentenced Quinones to 12 months and one day in prison and a three-year
term of supervised release.
      Quinones asserts that the evidence presented at trial was insufficient to
support her conviction. To establish that Quinones possessed stolen mail, the
Government was required to prove beyond a reasonable doubt that Quinones

      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-20917

“possessed the item stated in the indictment; (2) that the item had been stolen
from the mail; (3) that [Quinones] knew the item was stolen; and (4) that
[Quinones] had the specific intent to possess the item unlawfully.” United States
v. Hall, 845 F.2d 1281, 1284 (5th Cir. 1988) (citing United States v. Osunegbu,
822 F.2d 472, 475 (5th Cir. 1987)).
      Quinones did not move for a judgment of acquittal at either the close of the
Government’s case or the close of all the evidence. Accordingly, we review her
claim only to determine whether there was a manifest miscarriage of justice.
See United States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001). A manifest
miscarriage of justice exists when “the record is devoid of evidence pointing to
guilt.” Id. (internal quotation marks and citations omitted). In making this
determination, we consider the evidence in the light most favorable to the
verdict, giving it the benefit of all reasonable inferences and credibility choices,
just as we do when considering a properly preserved sufficiency claim. United
States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007).
      The trial evidence demonstrated that Quinones was found in possession
of undelivered mail after the completion of her route. Investigators equipped a
package with a tracking device, and the tracking signal indicated that Quinones
opened the package in her vehicle after she completed her route.             When
investigators approached Quinones in her vehicle, they saw the opened package
in the vehicle. No one other than Quinones was in her delivery vehicle at any
time from the beginning to the completion of her route. Pieces of the tracked
package and 131 other pieces of undelivered mail were found in her vehicle. The
Mail carriers such as Quinones are not authorized to be in possession of
undelivered mail at the completion of their daily routes. The record is not devoid
of evidence pointing to guilt. There was no manifest miscarriage of justice in
this case. Delgado, 256 F.3d at 274.
      Quinones also asserts that the district court erred in imposing a four-level
enhancement pursuant to U.S.S.G. § 2B1.1(b)(2)(B). Quinones contends the

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enhancement is improper because the evidence does not support the finding that
50 or more victims were involved in the offense.
      A district court’s interpretation or application of the Sentencing Guidelines
is reviewed de novo, and its factual findings are reviewed for clear error. See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The
district court’s determination of what constitutes relevant conduct for sentencing
purposes is a factual finding that is reviewed for clear error. See United States
v. Mann, 493 F.3d 484, 497 (5th Cir. 2007). A factual finding is clearly erroneous
only if, based on the entirety of evidence, the reviewing court is left with the
definite and firm conviction that a mistake has been made. United States v.
Valdez, 453 F.3d 252, 262 (5th Cir. 2006). A factual finding is not clearly
erroneous if it is plausible in light of the entire record. Id.
      Pursuant to § 2B1.1(b)(2)(B), the offense level for offenses involving stolen
property is increased by four levels if the offense involved 50 or more victims.
In cases where “undelivered United States mail was taken, or the taking of such
items was an object of the offense, or in which the stolen property . . . possessed
is undelivered United States mail,” the term “victim” refers to “any person who
was the intended recipient, or addressee of the undelivered United States mail.”
§ 2B1.1(2)(B), comment. (n.4(C)(i)). Further, there is a “special rule” for cases
involving undelivered mail and a United States Postal Service relay box,
collection box, delivery vehicle, satchel, or cast: those cases are presumed to have
involved at least 50 victims. § 2B1.1(2)(B), comment. (n.4(C)(ii)(I)).
      The evidence reflects that Quinones used her mail delivery vehicle in the
offense; that investigators found approximately 131 pieces of unopened First,
Second, and Third Class United States mail in Quinones’s vehicle; and that
investigators identified more than 50 individuals whose undelivered mail was
in the vehicle. Accordingly, because the district court’s factual finding was not
implausible in light of the record as a whole, the district court did not clearly err



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in imposing the four-level enhancement. See Cisneros-Gutierrez, 517 F.3d at
764; Valdez, 453 F.3d at 262.
      Finally, Quinones argues that the district court’s exclusion of certain
testimony at trial was harmful to her defense. We review a district court’s
evidentiary rulings for an abuse of discretion, applying the harmless error
doctrine. United States v. Sanders, 343 F.3d 511, 517 (5th Cir. 2003). “An error
is harmless if the reviewing court is sure, after viewing the entire record, that
the error did not influence the jury or had a very slight effect on its verdict.”
United States v. Rodriguez, 43 F.3d 117, 123 (5th Cir. 1995).
      Even if Quinones could demonstrate that the district court’s evidentiary
ruling was an abuse of discretion, which she has not done, she has failed to
demonstrate that, in light of the entire record, any error either influenced the
jury or affected the verdict. See id. Consequently, she has failed to show that
the district court’s evidentiary rulings constituted reversible error.
      The judgment of the district court is AFFIRMED.




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