                                                                   [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                       ------------------------------------------- U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                    No. 06-10042                          June 20, 2006
                              Non-Argument Calendar                   THOMAS K. KAHN
                      --------------------------------------------          CLERK

                      D.C. Docket No. 05-00138-CR-002


UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,


                                        versus


JEREMY DEWAYNE NIEWALD,

                                                       Defendant-Appellant.


            ----------------------------------------------------------------
                 Appeal from the United States District Court
                    for the Southern District of Alabama
            ----------------------------------------------------------------
                                  (June 20, 2006)


Before EDMONDSON, Chief Judge, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:
       Defendant-Appellant Jeremy Dewayne Niewald appeals the five-month

prison sentence imposed upon his conviction for mail theft, in violation of 18

U.S.C. § 1708, after he pled guilty without a plea agreement. No reversible error

has been shown; we affirm.

       Defendant challenges the district court’s application of a six-level

enhancement under U.S.S.G. 2B1.1(b)(2)(C) upon the court’s finding by a

preponderance of the evidence that his criminal activity involved 250 or more

victims. Defendant asserts a two-part challenge: he first argues that a beyond-a-

reasonable-doubt standard of proof should have applied to contested facts used to

support an increase in the sentence imposed; he next argues that the record is

wanting to satisfy even a preponderance of the evidence standard. We see no

merit in these challenges.

       About the standard of proof applicable to a U.S.S.G. § 2B1.1(b)(2)(C)

enhancement, Defendant argues that post-Booker, United States v. Booker, 125

S.Ct. 738 (2005), the government’s burden is beyond a reasonable doubt.1

According to Defendant, the beyond-a-reasonable-doubt standard derives from the

Constitution; and Defendant also contends that, under the doctrine of


   1
    Defendant’s constitutional argument rests on the Sixth Amendment cases that culminated in
Booker, considered in the light of the Fifth Amendment Due Process right to proof beyond a
reasonable doubt as recognized in In re Winship, 90 S.Ct. 1068, 1071-73 (1970).

                                             2
“constitutional avoidance,” this Court should avoid the difficult constitutional

issue of whether the reasonable doubt standard is constitutionally mandated and

apply that standard as a matter of statutory construction or judicial discretion.

      Our post-Booker cases reflect no change to the standard of proof applicable

to sentencing enhancements. Provided the district court applies the guidelines as

advisory, nothing in Booker restricts the sentencing court from making factual

findings under a preponderance-of-the-evidence standard. See United States v.

Ndiaye, 434 F.3d 1270, 1300 (11th Cir. 2006) (“when a defendant challenges a

factual basis of his sentence, the government has the burden of establishing the

disputed fact by a preponderance of the evidence”); United States v. Chau, 426

F.3d 1318, 1323-24 (11th Cir. 2005) (affirming sentence based on judicial findings

of fact by a preponderance of the evidence standard because the guidelines were

applied in an advisory way), United States v. Rodriguez, 398 F.3d 1291, 1296

(11th Cir.), cert. denied, 125 S.Ct. 2935 (2005) (for purposes of guideline sentence

calculation, government bears burden of establishing disputed fact by

preponderance of the evidence).

      Defendant also maintains that the government failed to show by a

preponderance of the evidence that his offense activity involved 250 or more

victims. The sentencing guidelines provide a six-level increase when the mail

                                          3
theft offense involves 250 or more victims. U.S.S.G. § 2B.1.1(b)(2)(C) and the

commentary to § 2B1.1 define victim to include “any person who was the intended

recipient, or addressee, of the undelivered United States mail.” U.S.S.G. § 2B1.1,

comment. n.4(C)(i).

       The guidelines also provide a “special rule” creating a presumption

applicable to the determination of the number of victims of undelivered mail:

       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.

U.S.S.G. § 2B1.1, comment n.4(C)(ii)(II). Applying the presumption, the district

court determined that 250 mailboxes was but a very small portion of the total

number of mailboxes accessed by Defendant and his co-defendants.2 Defendant

complains that the postal inspector was unable to confirm that the number of

victims was necessarily equal to the number of mailboxes; indeed, the postal

inspector said specifically that he had no way of knowing from which mailboxes

mail was stolen. And Defendant argues further that the complaints received --

under 50 from apartment complex residents and about 100 from rural residents of


   2
    The district court considered the threshold number of 250 to be “just barely five percent of the
four thousand apartment boxes that were broken into.”

                                                 4
west Mobile -- were not investigated fully to determine whether the complainant

was a “victim,” and, in any event, the number of complaints fell far short of 250.

      The special rule for victim enhancement for offenses involving United

States mail was created 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.

U.S.S.G. app. C, Amendment 617. Defendant’s protestations to the contrary

notwithstanding, reference to the postal inspector’s testimony provides no rebuttal

of the presumption set out in the special rule. The testimony underscores the need

for the special rule. The mail theft offense often eludes precise quantification.

      No reversible error has been shown in the application of the six-level

sentencing enhancement under U.S.S.G. 2B1.1(b)(2)(C).

      AFFIRMED.




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