     Case: 12-10630    Document: 00512416481     Page: 1   Date Filed: 10/23/2013




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

                                                                   FILED
                                                                 October 23, 2013

                                  No. 12-10630                    Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff–Appellee
v.

CRYSTAL DENISE MOORE,

                                            Defendant–Appellant



                 Appeal from the United States District Court
                      for the Northern District of Texas


Before WIENER, DENNIS, and OWEN, Circuit Judges.
WIENER, Circuit Judge:
      Defendant–Appellant Crystal Denise Moore (“Moore”) appeals her
sentence for a conspiracy that involved, inter alia, theft of United States Postal
Service (“Postal Service”) mail from a “collection box.” She contends that the
district court erred in calculating her offense level. Moore’s appeal presents an
interpretation issue of first impression regarding Application Note 4(C)(ii)(I) to
Guideline § 2B1.1 (“the Note” or “sub-sub-paragraph I”). We hold that the Note
permits the district court to presume that there were at least 50 victims when
calculating an offense level in a case that involves one or more Postal Service
receptacles; absent probative evidence that the actual number of victims
exceeded 50, however, the court may not presume more than 50, irrespective of
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the number of such receptacles that were involved. Accordingly, we vacate and
remand for resentencing.
                                 I. Facts & Proceedings
       Moore pleaded guilty to one count for her role in a sophisticated conspiracy
to steal mail, harvest identifying information, and cash forged paychecks. It is
undisputed that Moore’s co-conspirators stole mail from six Postal Service
“collection boxes.” Based on that number of collection boxes, and for reasons
explained at greater length below, the probation office’s presentence
investigation report (“PSR”) presumed 50 victims per collection box—for a total
of 300 victims—and recommended a 6-level enhancement to Moore’s offense
level. Moore objected to the PSR, urging that the probation office misinterpreted
the Note and that she should receive only a 4-level enhancement. The district
court overruled Moore’s objection and sentenced her based on the PSR’s
Guidelines range determined on the basis of the 6-level enhancement. Moore
timely filed a notice of appeal.
                                         II. Analysis
       We review de novo the district court’s interpretation of the Sentencing
Guidelines and Application Notes, applying ordinary rules of statutory
construction.1 “When the language of the guideline is unambiguous, the plain
meaning of that language is controlling unless it creates an absurd result.”2 The
Guidelines commentary “is authoritative unless it violates the Constitution or
a federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.”3



       1
           United States v. Serfass, 684 F.3d 548, 550-51 (5th Cir. 2012).
       2
           Id. at 551.
       3
        United States v. Diaz-Corado, 648 F.3d 290, 292 (5th Cir. 2011) (quoting Stinson v.
United States, 508 U.S. 36, 38 (1993)) (internal quotation marks omitted).

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                                        No. 12-10630

      Moore’s offense level was calculated pursuant to § 2B1.1, which applies an
enhancement based on the number of victims: 4 levels if the offense involved 50
or more victims but less than 250, and 6 levels if it involved 250 or more
victims.4 When mail is unlawfully taken, each intended recipient of that mail
is deemed to be a victim.5
      Application Note 4 to § 2B1.1 contains special rules for determining the
number of victims based on the particular type of receptacle or receptacles from
which the mail is stolen:
      (ii)      Special Rule.—A case described in subdivision (C)(i) of this
                note that involved—

                (I)     a United States Postal Service relay box, collection box,
                        delivery vehicle, satchel, or cart, shall be considered to
                        have involved at least 50 victims.

                (II)    a housing unit cluster box or any similar receptacle that
                        contains multiple mailboxes, whether such receptacle is
                        owned by the United States Postal Service or otherwise
                        owned, shall, unless proven otherwise, be presumed to
                        have involved the number of victims corresponding to
                        the number of mailboxes in each cluster box or similar
                        receptacle.6
      Notably, sub-sub-paragraph I covers various types of receptacles owned
exclusively by the Postal Service, so any mail stolen from such a receptacle was
still in the Postal Service’s custody and control. Thus, none of that mail had
been sorted by addressee, much less delivered to the addressee, before it was
stolen. By contrast, sub-sub-paragraph II covers “cluster boxes” and other
receptacles that comprise multiple individual mailboxes: Cluster boxes might



      4
          U.S.S.G. § 2B1.1(b)(2)(B), (C).
      5
          Id. at cmt. n.4(C)(i).
      6
          Id. at cmt. n.4(C)(ii).

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                                   No. 12-10630

belong to the Postal Service but might also (and most frequently do) belong to
private parties or entities, such as office buildings or apartment complexes.
Important to today’s issue, each separate mailbox within a cluster has already
been assigned to an individual mail addressee: Once mail is placed in a mailbox
within a cluster, that mail is no longer in the custody of the Postal Service; it has
been sorted and delivered to the individual owner or assignee of that particular
mailbox. This is why sub-sub-paragraph II need not presume an arbitrary
number of victims (such as sub-sub-paragraph I does with 50), but proceeds
directly (1) to determine the actual number of boxes in the cluster and then (2)
to count each box’s assignee as one victim.
      Moore’s appeal requires us to interpret the Note when, as here, mail is
stolen from more than one of the Postal Service’s own collection boxes under the
provisions in sub-sub-paragraph I—but not its or anyone else’s “cluster” boxes
under II. The probation office simplistically—and mistakenly—reasoned that,
if taking mail from one collection box is presumed to produce at least 50 victims,
then at least 300 victims are presumed to exist when mail is taken from six such
boxes. Consequently, the PSR recommended the 6-level enhancement that
results under § 2B1.1(b)(2)(C) when the offense involves 250 victims or more.
      Moore countered that nothing in sub-sub-paragraph I authorizes
presuming an additional 50 victims for each additional collection box. She
reasons that, in the absence of any proof of the actual number of victims, only 50
victims could be presumed, ergo she should have received only the 4-level
enhancement.
      The parties could not find any case on point from any jurisdiction, and our
own research confirms that vacuum.           Given that lack of precedent, we
understand the district court’s reliance on the probation office’s interpretation
of the Note, which, at first glance, might seem plausible. Our de novo review
nevertheless leads us to the conclusion that, under the plain language of the

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                                       No. 12-10630

Note, the number of collection boxes in excess of one does not increase the
presumed number of victims beyond 50. This plain reading is confirmed by a
comparison to parallel provisions and does not produce an absurd result.
      We begin, as we must, with the plain language of the special rule in sub-
sub-paragraph I: “A case [in which undelivered mail was taken] that involved . . .
a United States Postal Service . . . collection box . . . shall be considered to have
involved at least 50 victims.”7 Parsing this language carefully, we first note that,
if the case involved a collection box, it is the case itself, not the collection box or
boxes, that is presumed to have involved at least 50 victims; the collection box
itself does not have victims. And, whether the case involved a collection box is
a straightforward, yes-or-no question: Either it involved such a box or it did not.
Neither the question thus posed nor its answer changes if the case involved two
boxes, or six boxes, or a box, a satchel, and a truck: The case itself still involved
one of the rule’s named receptacles.
      The probation office went astray by overlooking the introductory language
in 4(C)(ii) and jumping straight to sub-sub-paragraph I. The probation office
thus read only that a “collection box . . . shall be considered to have involved at
least 50 victims,” which narrow reading produced its flawed syllogism that, ergo,
50 more victims are presumed for each additional collection box. Although the
Sentencing Commission certainly could have chosen to draft the Note that way,
it did not.
      We see no basis in the plain language of the Note for adding 50 presumed
victims for each additional Postal Service receptacle.              Accordingly, the
presumption created by the Note is for at least 50 victims, but no more than 50,
regardless of the number of such receptacles involved. Some credible proof is
required to go beyond the presumption and find that there were in fact more


      7
          Id. at cmt. n.4(C)(ii)(I).

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                                         No. 12-10630

than 50 victims.8 Here, apart from the Note’s presumption, the record contains
no independent evidence that 250 (or more) victims were actually involved.
Therefore, only the 4-level § 2B1.1(b)(2)(B) enhancement was applicable.9
       As noted above, this plain reading of sub-sub-paragraph I is confirmed by
comparing it to the companion provision in sub-sub-paragraph II, which governs
“housing unit cluster” boxes: “A case . . . that involved . . . a housing unit cluster
box . . . shall, unless proven otherwise, be presumed to have involved the number
of victims corresponding to the number of mailboxes in each cluster box.”10 Sub-
sub-paragraphs I and II both begin with “[a] case . . . that involved,” but that
phrase is followed in each sub-sub-paragraph by its own list of expressly
identified and distinctly different types of mail receptacles—and each provision
directs the sentencing court to draw a different presumption regarding the
number of victims. Based on these differences, if the case involved collection
boxes, whether one or many, then under sub-sub-paragraph I the number of
presumed victims is fixed at 50. Under sub-sub-paragraph II, by contrast, the
total number of victims presumed corresponds precisely to the total number of
receptacles in each of the “clusters” involved. A “collection box” is a single Postal
Service receptacle; a “cluster box” is, by definition, a hive of multiple, separate
receptacles, each of which is assigned to an individual mail addressee for the
purpose of receiving mail delivered from the Postal Service to that
addressee—each of whom is a separate, easily counted “victim.”



       8
         The dissent urges that the plain language of the Note “does not foreclose increasing
the number of victims” if more than one receptacle is involved. Although the Note does not
foreclose proof of additional victims, it does not allow the court to presume that additional
victims exist.
       9
        Because the Application Note is unambiguous, we need not apply the rule of lenity in
Moore’s favor. See Serfass, 684 F.3d at 551.
       10
            U.S.S.G. § 2B1.1 at cmt. n.4(C)(ii)(II) (emphasis added).

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       Sub-sub-paragraph II confirms that the Sentencing Commission knows
precisely how to link the number of presumed victims in a case to the number
of mail receptacles involved when it wants to by expressly counting “each . . .
box.” The Commission did just that in sub-sub-paragraph II for “cluster” boxes.
But, in writing sub-sub-paragraph I, the Commission could not—and therefore
did not—link the presumed number of victims to the number of collection boxes.
When we apply the venerable interpretation canon of expressio unius est exclusio
alterius, we are further convinced that the Commission’s choice of
language—and the distinction that it produces between the two provisions—was
intentional.11 The incongruity between the Commission’s treatment of collection
boxes and its treatment of cluster boxes results from the Commission’s deliberate
and logical choice.12
       Contrary to the assertions of government and the dissent, this does not
produce an absurd result. Rather, the special rule in the Note produces a
reasonable solution to the enigmatic problem of fixing the number of victims
when undelivered mail is taken from a given type of receptacle. For “collection
boxes,” a one-size-fits-all presumption of 50 victims avoids the compounded
uncertainty of “guesstimating” (1) the number of the pieces of mail (2) intended
for an unknowable number of different addressees (3) that were taken from any
of a number receptacles (4) which vary greatly in size and capacity. Indeed, we
can only begin to imagine the troubling outcomes that might result if the
government’s interpretation were credited and each receptacle added an
additional 50 presumed victims. For example, a defendant who took mail from



       11
            See, e.g., Serfass, 684 F.3d at 552.
       12
         The dissent purports to see “symmetry” between sub-sub-paragraphs I and II that
simply does not exist and that is not supported by the plain language of those provisions. As
discussed below, “collection boxes” are physically and functionally different from “cluster
boxes,” which difference is reflected in the distinctive structures of the different rules.

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                                        No. 12-10630

five shoulder satchels carried by postal workers would be presumed to have 250
victims and receive the 6-level enhancement, but another defendant who took
every bit of mail from one Postal Service truck would receive only the 4-level
enhancement, despite the fact that a Postal Service truck would likely contain
much more mail than the five satchels. That would truly be an absurd result.
       Although the Commission’s arbitrary 50-victim presumption might either
overstate or understate the actual number of victims in any given case, a single,
across-the-board presumption reduces the burden on the probation office and
results in consistent application of the 4-level enhancement for the number of
victims under § 2B1.1(b)(2)(B) in cases that involve theft of mail from the Postal
Service’s delivery system. And, by setting a floor rather than a ceiling for the
number of presumed victims, the Note still leaves the door open to proof of
additional victims when and if such proof is available. This solution to an
evidentiary problem strikes us as both logical and practical, and anything but
productive of an absurd result.13
       Finally, both parties cite the history of the special rules embodied in sub-
sub-paragraphs I and II and the Sentencing Commission’s stated reasons for
adopting them. As our analysis begins and ends with the unambiguous plain
language of the Note, although, we need not, and therefore do not, consider those
sources.14 We nevertheless observe in passing that the Commission’s stated
reasons satisfactorily explain the existence of different rules for different kinds
of mail receptacles. When the Commission promulgated sub-sub-paragraph I,

       13
          Certainly, the Commission could have taken a different approach, but the mere
existence of reasonable alternatives in no way requires us to conclude that the solution
actually adopted is absurd. And there is nothing absurd about a rule that only partially
relieves the government of its burden of proof at sentencing. See United States v. Teuschler,
689 F.3d 397, 399 (5th Cir. 2012) (“The Government bears the burden of proving by a
preponderance of the relevant and reliable evidence that the facts support a sentencing
enhancement.”)
       14
            Serfass, 684 F.3d at 551.

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it explained that the special rule was necessary because of “the unique proof
problems often attendant to such offenses.”15 That problem is self-evident: When
a collection box (or truck or satchel) is involved, no characteristic of the
receptacle itself indicates the number of putative victims who were intended to
receive the mail inside that receptacle. Presuming at least 50 victims is an
arbitrary but reasonable way to cope with that inherent uncertainty.
       Several years later, when it added sub-sub-paragraph II to address cluster
boxes, the Commission was more specific in citing “unique proof problems in that
once entry is gained to such a cluster box and mail is removed, it is difficult to
determine the number of persons from whom mail was stolen.”16 Cluster boxes
differ from collection boxes; the number of individual boxes in a cluster assigned
to different addressees allows a more case-specific determination of the number
of victims, at a minimal burden on the probation office.
       These somewhat different “proof problems” help to explain the Sentencing
Commission’s creation of different rules in sub-sub-paragraphs I and II.17 But,
to reiterate, we base our holding on the unambiguous wording of the Note, not
on what we speculate the Sentencing Commission might have been trying to
achieve.
       In sum, we conclude that the plain language of Application Note 4(C)(ii)(I)
specifies a presumption of at least 50 victims in a case that involves any
number—whether one or more—of the specific types of Postal Service receptacles
listed in that note. Proof of more than 50 victims is permitted, but the Note does

       15
            II U.S. Sentencing Guidelines Manual app. C., at 173 (2003).
       16
            III U.S. Sentencing Guidelines Manual app. C, at 133 (2011).
       17
          Indeed, if the Commission—when drafting sub-sub-paragraph II years after it
adopted sub-sub-paragraph I—had meant for the same presumption to apply to cluster boxes
as the one applicable to collection boxes and the other types of receptacles listed in sub-sub-
paragraph I, it could have (and presumably would have) simply amended sub-sub-paragraph
I by adding “cluster boxes” to the list.

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                                 No. 12-10630

not authorize the presumption of more. The district court’s understandable error
was in relying on the PSR’s erroneous multiplication of the number of victims
by the number of collection boxes involved. On this record, Moore should have
received only the 4-level § 2B1.1(b)(2)(B) enhancement applicable to cases
involving at least 50 victims but not 250 or more.
                               III. Conclusion
      We VACATE Moore’s sentence and REMAND for resentencing consistent
with this opinion.




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                                        No. 12-10630

OWEN, Circuit Judge, dissenting:
       I would affirm Moore’s sentence and hold that the district court correctly
construed the sentencing guidelines when it determined that Moore’s crime
involved at least 300 victims. The district court did not err in applying the
corresponding 6-level enhancement.                  The majority opinion’s reading of
Application Note 4(C) to § 2B1.1 is not supported by the language of that Note
and leads to absurd results.
                                               I
       Moore pled guilty to and was convicted of making, possessing, and uttering
a forged and counterfeit security. The district court found that Moore and her
co-defendants caused an actual loss of $91,332.22, and intended a loss of
$115,884.74 as a result of a scheme that spanned more than a year and involved
the theft of mail.        The district court calculated the advisory sentencing
guidelines range of imprisonment to be 70 to 87 months and sentenced Moore to
63 months of imprisonment, three years of supervised release, and $91,332.22
in restitution.
       The relevant facts are undisputed: Moore admits that mail was stolen from
at least six United States Post Office collection boxes on different dates in
different locations.1        She contends that the district court erred in its

       1
         Moore’s brief concedes that “thefts occurred during the following times,” and sets forth
the following description of seven thefts:

       Arlington PO which occurred in April 2010
       Oakwood PO which occurred in September 2010
       Alta Mesa PO which occurred in November 2010
       Handley PO which occurred in January 2011
       Trinity PO which occurred in May 2011
       8th A venue [sic] PO which occurred in June 2011
       7th Street PO which occurred in July 2011.

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                                       No. 12-10630

interpretation of Application Note 4(C)(ii) when the court concluded that each
mailbox “shall be considered to have involved at least 50 victims”2 and calculated
the number of victims to be 300.
       The plain language of the Guidelines contemplates this calculation.3
Application Note 4(C)(ii)(I) provides a special rule for determining the number
of victims in a case involving United States Postal Service receptacles, including
collection boxes:
       (C) Undelivered United States Mail.—
            (i)   In General.—In a case in which undelivered
            United States mail was taken, or the taking of such
            item was an object of the offense, or in a case in which
            the stolen property received, transported, transferred,
            transmitted, or possessed was undelivered United
            States mail, “victim” means (I) any victim as defined in
            Application Note 1; or (II) any person who was the
            intended recipient, or addressee, of the undelivered
            United States mail.

                (ii) Special Rule.—A case described in subdivision
                (C)(i) of this note that involved—

                       (I) A United States Postal Service relay
                       box, collection box, delivery vehicle,
                       satchel, or cart, shall be considered to have
                       involved at least 50 victims.

                       (II) A housing unit cluster box or any
                       similar receptacle that contains multiple
                       mailboxes, whether such receptacle is

       2
           U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. n.4(C)(ii)(I) (2011).
       3
        United States v. Serfass, 684 F.3d 548, 551 (5th Cir. 2012) (“When the language of the
guideline is unambiguous, the plain meaning of that language is controlling unless it creates
an absurd result.”).

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                                          No. 12-10630

                      owned by the United States Postal Service
                      or otherwise owned, shall, unless proven
                      otherwise, be presumed to have involved
                      the number of victims corresponding to the
                      number of mailboxes in each cluster box or
                      similar receptacle.4

      The district court reasoned that because Moore’s offense involved six
collection boxes, the Guidelines direct that each mailbox “shall be considered to
have involved at least 50 victims.”5 This is the correct interpretation of the
Guidelines. The Note says that “a [emphasis added] United States Postal
Service . . . collection box . . . shall be considered to have involved at least 50
victims.”6 If “a . . . collection box” “shall be considered to have involved at least
50 victims,”7 then six collection boxes are considered to have involved at least
300 victims (6 x 50). The majority opinion mistakenly focuses on the words “A
case,” reasoning that no more than 50 victims can be considered to have been
involved in “A case” involving a mail collection box, regardless of the number of
collection boxes or other receptacles involved in the case.
      The majority opinion’s construction of the Guidelines leads to patently
absurd results.       What if a case involved thefts from 51 mailboxes, or 75
mailboxes, or 100 mailboxes? The majority opinion says that the “at least 50
victims” phrase in subsection (I) of the Special Rule is a ceiling on the number



      4
          U.S.S.G. § 2B1.1 cmt. n.4(C).
      5
          Id.
      6
          Id.
      7
          Id.

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                                          No. 12-10630

of victims that can be “presumed,” regardless of the number of collection boxes
from which mail was stolen in a case. In a case involving 75 mailboxes, the
Government must prove, according to the majority opinion, that at least one
item of mail was in each mailbox beyond the 50th mailbox to exceed a 50-victim
“presumption,” and only the number of items of mail actually proven to have
been in each mailbox will be used to establish the number of victims beyond 50
victims. This is not the intent of the Guidelines.
      In amending the commentary to include the collection-box provision, the
Commission explained its reasoning as follows:
      A special rule is provided for application of the victim enhancement
      for offenses involving United States mail because of (i) the unique
      proof problems often attendant to such offenses, (ii) the frequently
      significant, but difficult to quantify, non-monetary losses in such
      offenses, and (iii) the importance of maintaining the integrity of the
      United States mail.8
The Guidelines define a victim as “any person who was the intended recipient,
or addressee, of the undelivered United States mail,”9 and as the Commission
recognizes, law enforcement will rarely, if ever, be able to identify all of the
intended recipients affected by the theft of mail from a mail collection box or
similar receptacle. The Commission therefore drafted Application Note 4 to say
that if “a case” involved “a United States Postal Service relay box, collection box,
delivery vehicle, satchel, or cart” the case “shall be considered to have involved
at least 50 victims.”10 That language does not foreclose increasing the number


      8
          U.S. SENTENCING GUIDELINES MANUAL app. C, vol. II, at 173 (2003).
      9
          U.S. SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. n.4(C)(i)(II) (2011).
      10
           Id. § 2B1.1 cmt. n.4(C)(ii).

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                                          No. 12-10630

of victims that “a case” “shall be considered to have involved”11 if that case
involved more than “a” “relay box, collection box . . . .” If “a case” involved more
than one of the identified mail receptacles or transporters, or it involved a
combination of one or more of the receptacles or transporters enumerated in
(C)(ii)(I), then the directive that “at least 50 victims” shall be considered to have
been involved with respect to a receptacle or transporter requires multiplying
the number of receptacles or transporters in “a case” by 50 to determine the
number of victims “considered to have [been] involved.”
      The correct interpretation of this application note is all the more clear
when its companion provision in subsection (II) regarding “a housing unit cluster
box or any similar receptacle” is considered. Subsection (II) immediately follows
the collection box section and the “shall be considered to have involved at least
50 victims” language. The cluster-box provision says:
      (II) A housing unit cluster box or any similar receptacle that
      contains multiple mailboxes, whether such receptacle is owned by
      the United States Postal Service or otherwise owned, shall, unless
      proven otherwise, be presumed to have involved the number of
      victims corresponding to the number of mailboxes in each cluster
      box or similar receptacle.12

      The number of victims is presumed to equal the number of individual
mailboxes in the cluster. There is symmetry between subsection (I) and (II),
when properly interpreted. A mailbox within a cluster box is for the use of an
individual or a household. The receptacles or transporters described in (I) are
used to collect or carry the mail for many individuals or households. The

      11
           Id.
      12
           Id. § 2B1.1 cmt. n.4(C)(ii)(II).

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                                         No. 12-10630

directive that each central mail collection box, such as the collection boxes at
issue in this case, or that each delivery truck or mail satchel shall be considered
to have at least 50 victims is entirely congruent with the treatment of unit
cluster boxes. The majority opinion improperly places a constraint on the
number of victims that can be presumed under subsection (I), ignoring the
parallels between it and subsection (II).
      The housing unit cluster-box provision was adopted in 2004, after the
Commission had originally promulgated provisions dealing with collection boxes.
In adopting the cluster-box provision, the Commission explained that “[t]he
amendment provides a presumption that a theft from such a cluster box involves
the number of victims corresponding to the number of mailboxes contained in
the cluster box.”13 The Commission also explained that “[t]he same rationale for
the original special rule applies to this expansion,” and that rationale was:
      (i) unique proof problems in that once entry is gained to such a
      cluster box and mail is removed, it is difficult to determine the
      number of persons from whom mail was stolen; (ii) the frequently
      significant, but difficult to quantify, non-monetary losses; and (iii)
      the importance of maintaining the integrity of the United States
      mail service. These reasons are equally valid whether the mail
      receptacle is owned by the United States Postal Service or is
      privately owned.14
      A scheme in which six cluster boxes were breached, with 50 individual
mailboxes in each cluster, would have 300 presumed victims.                     Under the
majority opinion’s interpretation of the collection-box provision, however, a
scheme—like the one in which Moore participated—in which six collection boxes


      13
           U.S. SENTENCING GUIDELINES MANUAL app. C, vol. III, at 133 (2011).
      14
           Id. (internal citation omitted).

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                                        No. 12-10630

were breached, would have a maximum of 50 presumed victims. Such disparate
results cannot be reconciled with the Commission’s identical rationale for
adopting both provisions.
      The majority opinion speculates that this disparity can be explained by the
difference between cluster boxes and the receptacles listed in the collection-box
provision, i.e., that “the number of individual boxes in a cluster . . . allows a more
case-specific determination of the number of victims.”15 This explains why the
number of victims per cluster is counted by individual boxes while the number
of victims per collection box (or other receptacle) is counted by a predetermined
amount, such as 50 victims per receptacle. It does not, however, account for the
inconsistency between counting the number of individual mailboxes in each
cluster, on the one hand, and setting a presumed number of victims that remains
constant regardless of the total number of receptacles involved in the scheme,
on the other. The majority opinion maintains that a presumption of “at least 50
victims” for a case involving more than one collection box “leaves the door open
to proof of additional victims when and if such proof is available.”16 But, as the
Commission noted, the very purpose behind adopting the directive in the
application note is that such proof is all too often not available.
      In a footnote, the majority opinion suggests that if the Commission “had
meant for the same presumption to apply to cluster boxes as the one applicable
to collection boxes . . . it could have (and presumably would have) simply
amended sub-sub-paragraph I by adding ‘cluster boxes’ to the list.”17 But the

      15
           Ante at 9.
      16
           Ante at 8 (emphasis in original).
      17
           Ante at 9 n.17.

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                                  No. 12-10630

Commission did not intend for “the same presumption to apply to cluster boxes
as the one applicable to collections boxes.” The majority opinion correctly
explains that because there are an identifiable number of individual mailboxes
within a housing unit cluster box or any similar receptacle that contains
multiple mailboxes, a reasonable presumption may be made that the number of
victims corresponds to the number of mailboxes. It would make no sense to treat
a cluster box the same as a collection box and to deem that there were at least
50 victims involved with regard to a cluster. The cluster might contain ten
mailboxes, or it might contain 200; but the number of mailboxes within a cluster
would be readily ascertainable. There is no reason to choose “at least 50” as the
number of victims that shall be considered to be involved with regard to a cluster
box. There is a reason to choose “at least 50 victims” with regard to each
collection box. At any given moment on any given day, the number of items of
mail in a public mail receptacle such as a collection box can vary widely, and
often, there is no means of proving how many addressees were victims of the
theft. That is why the Commission did not “simply amend[]”18 the Special Rule
in the application note by adding “cluster boxes” to the list that contains
collection boxes. The Commission determined that “at least 50 victims” was a
reasonable number of victims to ascribe to the theft of mail from a public
receptacle like a collection box when the number of victims is rarely
ascertainable. There is no need for a directive like the one applicable to a
collection box when a cluster box is involved. Apparently, the majority opinion
and I agree that the Commission had a good reason for treating a collection box
differently from a cluster box. We do disagree, however, as to how subsection


      18
           Id.

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                                  No. 12-10630

(C)(ii)(I) is to be interpreted when “a case” involves theft from more than one
collection box.
      The majority opinion’s strained reading of the Guidelines provides for the
same enhancement even if the criminal scheme spanned months or years and
involved breaches of hundreds of public collection boxes. This is not a reasonable
reading of § 2B1.1 and its application notes.

                                      ***

      I would affirm the district court’s common-sense interpretation of the
Guidelines. I therefore respectfully dissent.




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