           Case: 17-12302   Date Filed: 05/04/2018   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-12302
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 8:16-cr-00084-JSM-JSS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

STACY DARNELL MITCHELL,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                              (May 4, 2018)

Before WILLIAM PRYOR, NEWSOM and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 17-12302     Date Filed: 05/04/2018    Page: 2 of 4


      Stacy Mitchell appeals his convictions and sentence of 109 months of

imprisonment for theft of government property, 18 U.S.C. § 641, and for theft of

mail, id. § 1708. Mitchell challenges his convictions, for the first time on appeal,

on the ground that they violate the Double Jeopardy Clause of the Fifth

Amendment. Mitchell also challenges the enhancement of his sentence as a leader

or organizer of a scheme to sell stolen Social Security checks. See United States

Sentencing Guidelines Manual § 3B1.1(a) (Nov. 2016). We affirm.

      Mitchell acknowledges that he did not argue in the district court that his

convictions violate the Double Jeopardy Clause, so we review his argument for

plain error. See United States v. Gonzalez, 834 F.3d 1206, 1218 (11th Cir. 2016).

An error is not plain “where there is no precedent from the Supreme Court or this

Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291

(11th Cir. 2003).

      Mitchell cannot establish any plain error, under the Double Jeopardy Clause,

in his convictions for theft of government property and for theft of mail. Mitchell’s

offenses “constitute[] a violation of two distinct statutory provisions” that can be

cumulatively punished because “each provision requires proof of an additional fact

which the other does not.” See Blockburger v. United States, 284 U.S. 299, 304

(1932). Mitchell’s conviction for theft of government property required proof that

he stole or knowingly converted to his use Social Security checks that were


                                          2
              Case: 17-12302     Date Filed: 05/04/2018    Page: 3 of 4


property of the United States, see 18 U.S.C. § 641, whereas his conviction for theft

of mail required proof that he stole or obtained mail that he knew had been stolen

from a post office or station, see id. § 1708. And Mitchell identifies no binding

precedent holding that the Double Jeopardy Clause bars concurrent convictions

under sections 641 and 1708. See Lejarde-Rada, 319 F.3d at 1291.

      The district court also committed no clear error in finding that Mitchell led

or organized the scheme to steal and sell social security checks. A defendant is

subject to a four-level increase in his offense level if he “was an organizer or leader

of a criminal activity” that involved five or more participants or was otherwise

extensive. U.S.S.G. § 3B1.1(a). Mitchell, a mail handler at a United States Post

Office, profited from stealing social security checks from the mail. Richard

Anderson learned of the scheme when one of Mitchell’s cohorts paid Anderson

$150 each time that he had a third person cash a stolen check. Later, Mitchell used

Anderson as a distributor, and Anderson sold stolen checks to a group of 15 to 20

persons. Beginning in March 2012, Mitchell would call Anderson near the end of

the month, bring Anderson a stack of checks, collect the sales proceeds from

Anderson at his house, and give Anderson an amount that equaled 15 percent of

the face value of the checks, which usually totaled between $300 and $500. In

October 2012, Mitchell ended the relationship after Anderson’s recruit, Alphonso

Guice, was discovered in possession more than $200,000 of stolen social security


                                          3
              Case: 17-12302      Date Filed: 05/04/2018   Page: 4 of 4


checks. Mitchell stole the checks, controlled their dispersal, recruited distributors

to sell the checks, and received the bulk of the profits. See id. § 3B1.1 cmt. n.4.

Mitchell qualified as the leader or organizer of the scheme.

      We AFFIRM Mitchell’s convictions and sentence.




                                           4
