                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          APR 4 2001
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 00-6044
          v.                                         (W.D. Oklahoma)
 LAUREEN JOY MCGOWAN,                            (D.C. Nos. CR-99-94-M,
                                                      CR-99-153-M)
               Defendant - Appellant.


                             ORDER AND JUDGMENT         *




Before HENRY , BALDOCK , and LUCERO , Circuit Judges.




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

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.




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        This order and judgment is not binding precedent, except under the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

      In 1999, Laureen Joy McGowan entered pleas of guilty to various counts in

two indictments charging her with possession of stolen mail containing personal

checks, in violation of 18 U.S.C. § 1708 and 18 U.S.C. § 2. Ms. McGowan had

participated in thefts of mail from numerous Tulsa and Oklahoma City mail

delivery boxes. In the course of these thefts, Ms. McGowan and others stole the

entire contents of mailboxes, apparently in order to find packages of blank

checks, which were then passed using counterfeit identification cards. In January

2000, the district court sentenced Ms. McGowan to 51 months’ imprisonment,

which represented an upward departure from the guideline range, and a sentence

outside the “heartland” of mail fraud cases. Ms. McGowan now appeals that

sentencing departure, arguing that it was both improper and excessive. For the

reasons set forth below, we affirm the judgment of the district court.



II. DISCUSSION

      We have held that

      [t]he Sentencing Guidelines provide that each guideline carves out a
      “heartland,” “a set of typical cases embodying the conduct that each
      guideline describes.” U.S.S.G. ch. 1, pt. A, subpt. 4(b). The Guidelines
      explain that “[w]hen a court finds an atypical case, one to which a
      particular guideline linguistically applies but where conduct
      significantly differs from the norm, the court may consider whether a
      departure is warranted.” Id. As a result, a sentencing court may depart
      from the Guidelines and impose a sentence outside the guideline range

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       where it “finds ‘that there exists an aggravating or mitigating
       circumstance of a kind, or to a degree, not adequately taken into
       consideration by the Sentencing Commission in formulating the
       guidelines.’” Id. § 5K2.0 (quoting 18 U.S.C. § 3553(b)).

United States v. Sicken , 223 F.3d 1169, 1172 (10th Cir. 2000).

       We review sentencing departures under an abuse of discretion standard

which “‘includes review to determine that the discretion [of the district court] was

not guided by erroneous legal conclusions.’”         United States v. Collins , 122 F.3d

1297, 1302 (10th Cir. 1997) (quoting      Koon v. United States , 518 U.S. 81, 100

(1996)). More specifically, we must determine: (1) whether the factual

circumstances supporting a departure are permissible departure factors; (2)

whether the departure factors relied upon are sufficient to remove the defendant

from the applicable Guideline heartland thus warranting a departure; (3) whether

the record sufficiently supports the factual basis underlying the departure; and

(4) whether the degree of departure is reasonable.        See United States v. Gauvin ,

173 F.3d 798, 806-07 (10th Cir. 1999).



A. The Factors Justifying Departure

       With regard to the first three characteristics cited by     Gauvin , Ms.

McGowan contends that the factors relied upon for departure were insufficient to

remove her case “from the heartland of mail theft cases under [USSG] § 2B1.1.”

Aplt’s Br. at 15. The factors cited by the district court were (1) the number of

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victims; (2) the number of checks; (3) the possession of false identification cards

and the equipment to make them; (4) the theft of personal items having no

monetary value; and (5) the harms suffered by victims who were forced to correct

their credit and financial records. 3d Amended Judgment, filed Feb. 10, 2000

[hereinafter referred to as “Judgment”], at 13.

       Ms. McGowan states that the number of victims did not require an

additional enhancement because it was been “implicitly considered” through a 9-

level enhancement for the loss amount under USSG §2B1.1(b)(1), and a two-level

enhancement for more than minimal planning under §2B1.1(b)(4)(a). Aplt’s Br.

at 16. In support, she cites   United States v. Corrigan , 128 F.3d 330, 335 (6th Cir.

1997), which held that “[t]he number of victims is adequately considered in the

Sentencing Guidelines dealing with fraud,” and       United States v. Stein , 127 F.3d

777, 780 (9th Cir. 1997), which held that “it is the rare case that the existence of

both” multiple victims and more than minimal planning “will take the case

outside the heartland of the Guidelines and justify a departure.” The government

does not directly respond to this argument. Instead, it cites    Koon , 518 U.S. at 98,

for the proposition that the district court’s departure methodology was

permissible. See Aple’s Br. at 3-4.

       We find the cases cited by Ms. McGowan         inapposite. Both cases deal with

fraud offenses under §2F1.1, not property offenses under §2B1.1. The Guidelines


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for property offenses contain no provision akin to the multiple victim

enhancement of §2F1.1(b)(2)(B). Furthermore, §2F1.1(b)(2)(B) lists more than

minimal planning and multiple victims as alternative, not cumulative, reasons to

apply a two-level enhancement.    See USSG §2F1.1(b)(2)(B) (“If the offense

involved (A) more than minimal planning,     or (B) a scheme to defraud more than

one victim, increase by 2 levels.”) (emphasis added). As the Ninth Circuit

pointed out in Stein , this suggests the Sentencing Commission realized that in

most fraud schemes, “where one of these factors applies the other will apply as

well.” Stein , 127 F.3d at 780. We take the absence of a similar alternative

provision for multiple victims in §2B1.1(b)(4)(A) as an indication that the

Commission did not take the same view of multiple victim property offenses, and

that a large number of victims may constitute an adequate justification for an

additional departure. Here, the number of victims was around 300, which seemed

to the district court “substantially in excess” of a number typical for property

offenses, even those involving mail. Aplt’s Br. at 65 (Tr. of Sentencing Hearing).

It was thus a permissible basis for a departure.

      Ms. McGowan then proposes that the number of checks, the possession of

equipment to make false IDs, and the theft of items having no monetary value all

fell within the heartland of mail theft cases. She argues that because

§2B1.1(b)(3) requires a minimum enhancement to level 6 for the theft of


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“undelivered United States mail,” the Commission “has considered and addressed

the enhancements appropriate for theft of mail cases,” and “mail cases have their

own ‘heartland’ of conduct.” Aplt’s Br. at 17-18. Again, the government does

not specifically respond to these arguments, but generally contends that the

guidelines “do not adequately consider the harm to the individual victims.”

Aple’s Br. at 4.

      Based on the Application Notes to §2B1.1, we agree with the government’s

position. The Commission noted that

      [c]onsistent with statutory distinctions, an increased minimum offense
      level is provided for the theft of undelivered mail. Theft of undelivered
      mail interferes with a governmental function, and the scope of the theft
      may be difficult to ascertain.

USSG §2B1.1, comment. (backg’d.). It appears that the intent of this

enhancement was not to take into account the theft of over 300 boxes of checks,

the possession of false identification, and the theft of items with no monetary

value. The presence of these factors may therefore appropriately take a mail theft

case outside the sentencing heartland.

      Finally, Ms. McGowan contends that the court’s use of the “extensive

inconveniences and costs incurred, not only by financial institutions, but by the

individuals whose checks were stolen,” was unjustified.     See Judgment at 13. She

proposes that like the use of false identification, the need for individuals to

correct their credit histories is a normal result of mail theft and does not take a

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case outside the mail theft “heartland.”    See Aplt’s Br. at 19-23. We decline to

reach the merits of this argument, as we find that the district court’s departure

was already justified by the factors cited above.



B. The Degree Of Departure

       The fourth question from     Gauvin asks whether the degree of departure was

reasonable. Ms. McGowan argues that in this case it was not. According to the

judgment, the district court apparently intended to depart upwards by two levels.

However, upon discovering that this would vault Ms. McGowan into a new

criminal history category, in which an additional one-level reduction would be

granted for her acceptance of responsibility, the district court decided to add a

third level to the upward departure. That additional level resulted in a net upward

departure of two levels, giving Ms. McGowan an offense level of 15 and a

criminal history category of VI.     See Judgment at 13-14. Ms. McGowan argues

that while the two-level departure “would have been a guided departure,” the

addition of the third level resulted in “an unguided departure contrary to the

structure of the guidelines.” Aplt’s Br. at 24.

       Our review of a departure decision’s reasonableness is deferential.     See

United States v. Whiteskunk     , 162 F.3d 1244, 1253 (10th Cir. 1998). In   United

States v. Bartsma , 198 F.3d 1191 (10th Cir. 1999), this court held that when a


                                            -7-
district court departs from the Guidelines, it must “specifically articulate reasons

for the degree of departure,” using any “reasonable methodology hitched to the

Sentencing Guidelines,” including “extrapolation from or analogy to the

Guidelines.” Id. at 1196 (quoting United States v. Collins , 122 F.3d 1297 (10th

Cir. 1997)). On review, we examine the district court’s stated reasons, along with

factors such as “the seriousness of the offense, the need for just punishment,

deterrence, protection of the public, correctional treatment, the sentencing pattern

of the Guidelines, the policy statements contained in the Guidelines, and the need

to avoid unwarranted sentencing disparities.”    Collins , 122 F.3d at 1308-09.

While we have stated that the district court is not required to justify the degree of

departure with mathematical precision, it is required to include in its justification

“some method of analogy, extrapolation or reference to the sentencing

guidelines.” Bartsma , 198 F.3d at 1197 (quoting    United States v. O’Dell , 965

F.2d 937, 939 (10th Cir. 1992)).

      In selecting its level of departure, the district court stated that

      [u]pon review of the Sentencing Guidelines, the Court finds §3A1.1,
      hate crime motivation or vulnerable victim, is an appropriate section to
      look to for guidance in determining the level of departure. The Court
      notes, however, there are no “vulnerable victims” in this case.
             Thus, after looking at §3A1.1 for guidance      and in light of the
      unusual circumstances in this case , and due to the impact of an upward
      departure on the amount of adjustment for acceptance of responsibility,
      the Court finds it is appropriate to depart upward by three levels,
      resulting in an offense level of 15 and a criminal history category of VI.


                                           -8-
Judgment at 13-14 (emphasis added).

      USSG §3A1.1(b)(1) permits a two level upward departure for an offense

committed against a vulnerable victim. USSG §3A1.1(b)(2) also permits a

cumulative enhancement of another two levels if there were a large number of

vulnerable victims. Taken together, these provisions would seem to permit as

much as a four level enhancement if used as an analogy. As the district court

could have enhanced Ms. McGowan’s sentence as much as four levels under the

provision it chose, it was not an abuse of discretion for it to choose a three level

departure.



III. CONCLUSION

      For the reasons set forth above, we AFFIRM Ms. McGowan’s sentence.

                                                Entered for the Court,



                                                Robert H. Henry
                                                Circuit Judge




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