     Case: 13-10049   Document: 00512535178     Page: 1   Date Filed: 02/18/2014




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

                                                                        FILED
                                No. 13-10049                     February 18, 2014
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk


                                           Plaintiff–Appellee,
v.

SHERYL DENISE LAGRONE,

                                           Defendant–Appellant.




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


Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Defendant–Appellant Sheryl Denise Lagrone was charged in two felony
counts of violating 18 U.S.C. § 641.       Following her conviction, she was
sentenced to two concurrent terms of 45 months of imprisonment, three years
of supervised release, $20,374.76 in restitution, and two $100 special
assessments. Each of Lagrone’s two theft offenses involved Government
property with a value less than $1,000, and she contends that 18 U.S.C. § 641
does not permit her to be convicted of more than a single felony count. We
agree and accordingly vacate and remand.
                                       I
      Lagrone obtained postal stamps at United States Postal Offices in
various locations, tendering checks with insufficient funds as payment in these
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                                 No. 13-10049
transactions. She was indicted, in three counts, for willfully and knowingly
stealing “a thing of value” from the United States in violation of 18 U.S.C.
§ 641. She pleaded guilty to two of the counts for stealing $880 of stamps in
each of two post offices. The third count was dismissed. In her guilty plea,
Lagrone stipulated to the facts of her offenses but reserved a dispute about the
possible penalties—specifically whether she was subject to penalties for a
single felony conviction or two felony convictions. The Government articulated
its belief that Lagrone was subject to a maximum of 20 years of imprisonment
(ten years per count), a fine not to exceed $500,000 ($250,000 per count), and
special assessments of $200 ($100 per count), while Lagrone contended that
the maximum penalties were limited to those for a single felony count under
§ 641, which would be ten years of imprisonment, a $250,000 fine, and a $100
special assessment.
      The Presentence Investigation Report (PSR) determined that Lagrone
had a total offense level of 8 and Criminal History Category of V, which
resulted in an advisory Guidelines range of 15 to 21 months of imprisonment
for each count. At sentencing, the district court adopted the findings of the
PSR, but varied upward to address Lagrone’s criminal history. The district
court also rejected Lagrone’s objection to the second felony count. The district
court sentenced Lagrone to 45 months of imprisonment, and three years of
supervised release for each count, to run concurrently. The court also ordered
her to pay $20,374.76 in restitution and two special assessments of $100 each.
Lagrone appeals her sentence.
                                       II
      Lagrone’s sole contention in our court is that the district court erred in
imposing penalties for two felony convictions under § 641. The ultimate issue
is whether 18 U.S.C. § 641 authorizes the aggregation of thefts, each of which
is less than $1,000 and would individually subject the defendant only to
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                                        No. 13-10049
misdemeanor penalties, in order to impose felony penalties for each instance
of theft. This is a question of statutory interpretation, which we review de
novo. 1
                                              III
      “The first step in statutory interpretation . . . is to look at the plain
meaning of the statutory language.” 2               We will enforce the statute’s plain
meaning, unless absurd. 3 Section 641 provides,
      Whoever embezzles, steals, purloins, or knowingly converts to his
      use . . . any record, voucher, money, or thing of value of the United
      States or of any department or agency thereof . . . [s]hall be fined
      under this title or imprisoned not more than ten years, or both; but
      if the value of such property in the aggregate, combining amounts
      from all the counts for which the defendant is convicted in a single
      case, does not exceed the sum of $1,000, he shall be fined under
      this title or imprisoned not more than one year, or both. 4

      The Government contends that the statutory language allows it to
charge a defendant with a violation of § 641 each time she steals something of
value from the United States, with a maximum penalty of ten years’
imprisonment on each count. It asserts that the only exception is when the
total value of the property stolen, aggregated from all of the counts in the case,
is less than $1,000, in which event the maximum penalty is one year of
imprisonment on each count. The Government concludes that counts of theft
that each individually involve amounts less than $1,000 may be aggregated
under the statute and a felony can be charged for each count if the total,
aggregated amount across all counts exceeds $1,000.



      1   United States v. Lawrence, 727 F.3d 386, 391 (5th Cir. 2013).
      2   United States v. Spurlin, 664 F.3d 954, 964 (5th Cir. 2011).
      3   Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 486 (5th Cir. 2013).
      4   18 U.S.C. § 641.
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                                          No. 13-10049
      The Government argues that we resolved this issue in United States v.
Reagan, 5 in which we held that “the allowable unit of prosecution under § 641
is each individual transaction in which government money is received.” 6 In
Reagan, the defendant was convicted of five counts of violating § 641 for
improperly receiving $41,832 in federal low-income housing rent subsidy
program payments over a period of five years. 7                He received concurrent
sentences of twelve months’ imprisonment, two years of supervised release,
and five $100 special assessments. 8 He challenged his sentence on the ground
that the indictment was multiplicitous and argued that he should only be
subject to the penalties for a single felony count. 9 Noting that under similarly-
worded statutes “each distinct taking of funds constitutes a separate violation,”
we held that the defendant could properly be convicted of multiple felony
counts under § 641. 10
      In Reagan, however, each of the counts for which the defendant was
convicted exceeded $1,000; 11 consequently, the operation of § 641’s aggregation
clause was not at issue. The question remains whether § 641 permits the
aggregation of thefts, which alone would subject the defendant only to
misdemeanor penalties, in order to impose felony penalties for each theft.
      We conclude that § 641 is unambiguous when applied to the facts before
us. While it permits aggregation under the facts before us in order to charge a


      5   596 F.3d 251 (5th Cir. 2010).
      6   Reagan, 596 F.3d at 254.
      7   Id. at 252.
      8   Id.
      9   Id. at 252-53.
      10   Id. at 253.
      11  The amount related to each count is not stated in the Reagan opinion. However,
the Government’s brief lists the amounts. See Brief for the United States, at 6, 17, United
States v. Reagan, 596 F.3d 251 (5th Cir. 2010) (No. 08-11006), 2009 WL 6669669.
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                                    No. 13-10049
single felony, it does not permit charging both offenses for which Lagrone was
convicted as felonies.
      If we were to accept the Government’s position that § 641’s plain
language authorizes felony penalties for each instance of theft, so long as the
total of all thefts charged exceeds $1,000 in the aggregate, then the penalties
applicable to certain offenses would depend on whether subsequent offenses
occurred. As an example, assume an individual improperly receives monthly
federal benefits of $90. Were that individual convicted of illegal receipt of
eleven months of checks, she would be subject to a maximum of eleven years
in prison through the eleventh month that she improperly received federal
benefit checks.       However, under the Government’s construction, upon the
receipt of the twelfth check, the possible penalties for each of the checks would
be multiplied ten-fold, subjecting the individual to the potential of twelve ten-
year maximum sentences, totaling a maximum of 120 years’ imprisonment.
      The applicable limitations period for offenses under § 641 is five years. 12
If we accepted the Government’s position, a theft of $500 that subjects the
offender to a misdemeanor charge with a maximum penalty of one year of
imprisonment would become a felony if it were followed four and a half years
later by a second theft of $501 and the Government decided to charge the two
offenses together. The maximum penalty on the initial theft would increase
from one year in prison to ten years.
      The Government’s interpretation of § 641 permits retroactively changing
the penalty for what would otherwise be misdemeanor offenses to penalties for
felonies if they are charged in the same case as subsequent thefts that exceed
$1,000 in the aggregate. Lagrone argues that a better interpretation of § 641
is that the statute permits the aggregation of multiple thefts in order to reach


      12   18 U.S.C. § 3282(a).
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                                          No. 13-10049
the $1,000 statutory limit and allows the Government to charge the defendant
with a felony for each theft or series of thefts that exceeds $1,000 in the
aggregate. Because neither of her thefts alone exceeds $1,000 and both are
necessary to comprise a single series that exceeds $1,000 in the aggregate, she
contends that § 641 permits her to be charged with only a single felony.
       We note that Lagrone’s interpretation accords with how the Government
charged the offenses in Reagan. In Reagan, the defendant improperly received
monthly payments for five years. 13 Each check was individually less than
$1,000, 14 but the prosecution aggregated the monthly checks for each fiscal
year in order to charge the defendant with five felonies—each a series of
misdemeanors that exceeded $1,000 in the aggregate—and not the sixty
felonies to which he could have been subject based on the Government’s
position in the case before us today. 15
       We conclude that Lagrone’s interpretation reflects the plain language of
§ 641. Even were we unconvinced that Lagrone’s view is the correct one, and
instead found the two interpretations to be equally persuasive, we would be
bound under the rule of lenity to adopt the position favoring Lagrone. 16 “The
rule of lenity requires ambiguous criminal laws to be interpreted in favor of
the defendants . . . [to avoid] subject[ing] [them] to punishment that is not
clearly prescribed.” 17 Because felony penalties for each misdemeanor-level
theft are not clearly prescribed by the statute, we must interpret § 641 in




       13   Reagan, 596 F.3d at 252.
       14   Brief for the United States, supra note 11, at 6, 17.
       15   Id. at 17; Reagan, 596 F.3d at 252.
       16 United States v. Santos, 553 U.S. 507, 514 (2008) (explaining that when two
interpretations of a criminal statute are equally plausible, “the tie must go to the defendant”).
       17   Id.
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                                          No. 13-10049
Lagrone’s favor. Therefore, we hold that Lagrone is properly subject to only a
single felony count under § 641, and she must be resentenced accordingly. 18
                                      *        *         *
      For the foregoing reasons, the sentence imposed by the district court is
VACATED and this case is REMANDED to the district court for resentencing.




      18   See United States v. Bradsby, 628 F.2d 901, 905 (5th Cir. Unit A 1980).
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