                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           OCT 18 2001
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 01-1225
           v.                                            (D. Colorado)
 MARY J. HORSLEY,                                   (D.C. No. 00-CR-155-D)

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before TACHA , Chief Judge, and PORFILIO and ANDERSON , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Defendant Mary J. Horsley was convicted, following a jury trial, of one

count of possession of stolen mail, in violation of 18 U.S.C. § 1708. She was


       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
sentenced to ten months imprisonment and ordered to make restitution in the

amount of $5,001.49. We affirm her conviction and sentence.



                                      BACKGROUND

       In February 1999, Faye Roppo filed a complaint with the United States

Postal Service, alleging that an insurance settlement check in the amount of

$5,033.85 had been stolen from her mailbox in front of her house. Ms. Roppo

had been expecting the check from Alliance Insurance Company, and when it

failed to arrive, she contacted Alliance and was told it had been mailed to her on

November 20, 1998. Alliance also told Ms. Roppo that, on January 14, 1999, the

check was negotiated at Western National Bank and deposited into the account of

Ann Mish.

       Ann Mish was an elderly woman, suffering from some form of dementia,

who shared a banking account at Western National Bank with her son, Stuart

Mish. During the first week of January 1999, Ms. Horsley’s brother, Richard

Salaz, met with Stuart Mish, presented him with the Roppo check and asked him

to cash it.   1
                  Stuart Mish, in turn, asked his mother to deposit the check into their

joint checking account, which she did. The back of the check had been endorsed




       Salaz testified that Ms. Horsley had given him the check and asked for his
       1

help in cashing it. Trial Tr. at 173-75, R. Vol. 3.

                                              -2-
with the forged signature of Faye Roppo and made payable to Ann Mish. On

January 19, Ann Mish withdrew the funds from the joint account and gave them to

Mr. Salaz.

      Stuart Mish testified that, in February 1999, he met Ms. Horsley at a bar in

Colorado Springs.   2
                        Mish testified that during that meeting, Ms. Horsley asked

him if he could cash a check in the amount of $5,001.49 made out to Franklin

Hicks. The check had been sent to Mr. Hicks’ old address, 4762 South Dearborn

Court in Aurora, Colorado, as a solicitation for a loan by Household Finance. At

the time Stuart Mish and Ms. Horsley met, Ms. Horsley resided at 4762 South

Dearborn Court along with her brother, Richard Salaz, and her children. On

February 12, Stuart Mish deposited the Hicks check into his account at Western

National Bank. On February 16, he withdrew $5,000 from the account, and gave

it to Ms. Horsley and her brother.

      On May 11, 1999, Postal Inspectors W. D. Bennett and Carlos Morales

questioned Ms. Horsley at her house concerning the Roppo and Hicks checks.

Ms. Horsley also gave a written statement to the inspectors. The inspectors also

searched Ms. Horsley’s car. She denied any involvement with the stolen checks.




      2
       Salaz testified that he arranged the meeting between Ms. Horsley and
Stuart Mish. Trial Tr. at 190-91, R. Vol. 3.

                                           -3-
       Ms. Horsley was arrested on April 19, 2000, and charged with two counts

of possession of stolen mail, in violation of 18 U.S.C. § 1708. Ms. Horsley filed

a motion to suppress her statements made to the Postal Inspectors, arguing that

she was “in custody” when those statements were made and that she had not been

given her Miranda rights as required for an individual in custody. The district

court denied her motion to suppress, finding “the facts to be credible as detailed

by the two Postal Inspectors in their Court testimony,” and concluding that there

was “no evidence that this defendant was in custody.” Order at 2, R. Vol. 1, Tab

64 at 2.

       Ms. Horsley was tried before a jury, which found her not guilty of Count

One, involving the Roppo check, and guilty of Count Two, involving the Hicks

check. At sentencing, the court calculated Ms. Horsley’s base offense level as 4,

pursuant to Sentencing Guideline §2B1.1(a). The court then increased her offense

level by five levels, pursuant to §2B1.1(b)(1)(F), because the loss of both the

Roppo and Hicks checks exceeded $10,000. The court found that, although Ms.

Horsley had been acquitted of possession of the Roppo check, a preponderance of

the evidence established that she had possessed it. That had the effect of

increasing her imprisonment range to eight to fourteen months and eliminating the

option of probation.




                                        -4-
       Ms. Horsley argues: (1) the district court erred in denying her motion to

suppress because she was in custody when she made statements to the Postal

Inspectors and therefore subject to    Miranda , and it is undisputed that the

inspectors failed to give Ms. Horsley her     Miranda rights; (2) at sentencing, the

district court failed to comply with 18 U.S.C. § 3661 because it failed to prove by

a preponderance of the evidence that Ms. Horsley possessed the Roppo check.



                                      DISCUSSION

       I. Denial of Motion to Suppress

       Ms. Horsley argues the district court erred in denying her motion to

suppress the statements made to the postal inspectors on May 11, 1999. We

review the factual findings underlying the denial of a motion to suppress for clear

error, viewing the evidence in the light most favorable to the district court’s

holding. United States v. Caro , 248 F.3d 1240, 1243 (10th Cir. 2001).

Credibility determinations are for the district court to make.     Id.

       It is undisputed that the postal inspectors did not read Ms. Horsley her

rights under Miranda v. Arizona , 384 U.S. 436 (1966), before they questioned her

about the stolen checks. The district court found no error, however, because it

concluded that Ms. Horsley was not in custody at the time of the questioning.




                                            -5-
       The government argues that Ms. Horsley’s          Miranda claim is moot, because

the government never offered her statements at trial, although it did introduce at

trial handwriting exemplars taken from Ms. Horsley during the questioning.

Alternatively, it argues the district court correctly found no custodial status. We

agree with both arguments.

       First, we have carefully reviewed the entire record in this case and it is

clear that the government did not in fact introduce any statements Ms. Horsley

made on May 11. Thus, she suffered no harm from the district court’s failure to

suppress them. She also suffered no harm from the introduction of her

handwriting exemplar at trial because the handwriting analysis was inconclusive.

       Moreover, even addressing the merits of her         Miranda claim, we affirm the

district court’s conclusion that she was not in custody. “[W]e review the district

court’s ultimate ‘in custody’ determination         de novo, with proper deference to the

district court’s findings of historical fact and credibility determinations.”     United

States v. Erving L. , 147 F.3d 1240, 1246 (10th Cir. 1998).

       The district court found the postal inspectors’ testimony to be credible.

The court further found that “the evidence supports [a finding that] this defendant

voluntarily called one inspector to set up a mutually agreeable time for the

interview.” Order at 2, R. Vol. 1, Tab 64 at 20. All of the other evidence

supports the district court’s conclusion that Ms. Horsley was not in custody: the


                                              -6-
questioning occurred in Ms. Horsley’s home, a factor supporting the non-

custodial nature of the encounter.      See United States v. Rith , 164 F.3d 1323, 1332

(10th Cir. 1999) (noting that among the factors supporting the district court’s

conclusion that the suspect was not in custody was the fact that the questioning

occurred in the suspect’s home);     Erving L. , 147 F.3d at 1247 (same).

Additionally, as the inspectors testified at the suppression hearing, they were

dressed in plain clothes, did not display weapons, and in no way “impose[d]

physical restraint upon” Ms. Horsley.      Rith , 164 F.3d at 1332. We therefore

affirm the district court’s conclusion that Ms. Horsley was not in custody when

the postal inspectors questioned her.

       Furthermore, to the extent Ms. Horsley also claims error in the admission at

trial of her handwriting exemplar because she was not given her      Miranda rights

before she gave the exemplar, that argument also fails.    3




       3
        Miranda ’s protection of a person’s Fifth Amendment right against self-
incrimination “only protects against compelled testimonial facts disclosed by an
individual.” Lucero v. Gunter , 17 F.3d 1347, 1350 (10th Cir. 1994). Thus, Ms.
Horsley could be compelled to provide a handwriting exemplar without violation
of her Fifth Amendment rights which    Miranda is designed to protect. Gilbert. v.
California , 388 U.S. 263, 266-67 (1967).

                                             -7-
      II. Sentencing

      Ms. Horsley argues she “must be re-sentenced because the district court did

not comply with 18 U.S.C. § 3661 where the government failed to prove by a

preponderance of the evidence that Ms. Horsley possessed the Faye Roppo

Check.” Appellant’s Opening Br. at 10.

      Section 3661 provides that “[n]o limitation shall be placed on the

information concerning the . . . conduct of a person convicted of an offense which

a court . . . may receive and consider for the purpose of imposing an appropriate

sentence.” 18 U.S.C. § 3661;    see also USSG §1B1.4.   4
                                                            In accordance with the

Sentencing Guidelines, the district court calculated Ms. Horsley’s base offense

level at four, see USSG §2B1.1(a), and then increased it by five levels because

the loss was more than $10,000 but less than $20,000.       See id. §2B1.1(b)(1 )(F).

Ms. Horsley argue the amount of loss utilized for sentencing purposes should be

limited to the amount of the Hicks check ($5,001.49), the only check which she

was convicted of possessing. The district court disagreed:


      4
          Section 1B1.4 provides as follows:

      In determining the sentence to be imposed within the guideline range,
      or whether a departure from guidelines is warranted, the court may
      consider, without limitation, any information concerning the
      background, character and conduct of the defendant, unless otherwise
      prohibited by law. See 18 U.S.C. § 3661.

USSG §1B1.4.

                                          -8-
      I’m going to find that the loss amount is the $10,000 sum, and the
      Court would make a finding that as it relates to count one, that there
      was evidence presented to the Court which would indicate by a
      preponderance of the evidence the check related to count one, which
      was the Faye Roppo check in the amount of $5,033.85, should be
      included in the total loss amount, even though the defendant was
      found not guilty as to count one.

Tr. of Sentencing Proceeding, R. Vol. 6 at 6.

      The Supreme Court has explicitly held that “a jury’s verdict of acquittal

does not prevent the sentencing court from considering conduct underlying the

acquitted charge, so long as that conduct has been proved by a preponderance of

the evidence.”   United States v. Watts , 519 U.S. 148, 157 (1997) (per curiam);    see

also United States v. Hishaw , 235 F.3d 565, 576-77 (10th Cir. 2000),    cert. denied ,

121 S. Ct. 2254 (2001). We review the district court’s factual findings for clear

error only, and after a thorough review of the record in this case, we affirm the

district court’s finding that a preponderance of the evidence supported the

conclusion that Ms. Horsley possessed the Roppo check. The court accordingly

correctly included it in its calculation of the total loss for purposes of Ms.

Horsley’s sentence.   5




                                   CONCLUSION


      5
        Inclusion of the amount of the Roppo check did not cause Ms. Horsley’s
sentence to exceed the statutory maximum of five years. See Apprendi v. New
Jersey, 530 U.S. 466, 483 n.10 (2000).

                                          -9-
      For the foregoing reasons, we AFFIRM the denial of Ms. Horsley’s motion

to suppress, and AFFIRM her conviction and sentence.

                                              ENTERED FOR THE COURT


                                              Stephen H. Anderson
                                              Circuit Judge




                                     - 10 -
