     Case: 13-10049         Document: 00512865870        Page: 1    Date Filed: 12/11/2014




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

                                         No. 13-10049                            FILED
                                                                         December 11, 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


                                ON PANEL REHEARING
Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Our panel granted rehearing, withdrawing our earlier opinion filed
February 18, 2014. 1 After hearing argument and further considering the
issues, we substitute the following. 2
      Sheryl Denise Lagrone was convicted on two felony counts of violating
18 U.S.C. § 641. The district court sentenced Lagrone to two concurrent terms
of forty-five months of imprisonment. Although Lagrone’s two theft offenses
involved Government property with a value exceeding $1,000 in the aggregate,


      1   United States v. Lagrone, 743 F.3d 122 (5th Cir. 2014).
      2   See FED. R. APP. P. 40(a)(4)(C).
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                                  No. 13-10049

the value of the property involved in each theft offense was less than $1,000.
Lagrone contends that she may only be convicted of one felony, not two, under
§ 641 because her first theft did not exceed $1,000. We affirm the sentence
imposed by the district court.
                                        I
      Lagrone obtained postal stamps from United States Postal Service
offices by tendering checks with insufficient funds as payment.         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 from each of two post offices. The
third count was dismissed. In her guilty plea, Lagrone stipulated to the facts
of her offenses but reserved the right to dispute 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). 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

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                                       No. 13-10049

her to pay $20,374.76 in restitution and two special assessments of $100 each.
Lagrone appeals her sentence.
                                              II
      Lagrone’s sole contention on appeal 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 a felony penalty for the first theft
committed when it involves less than $1,000 and would, on its own, result only
in a misdemeanor penalty for the defendant, but when aggregated with one or
more subsequent thefts, the amount involved exceeds $1,000.                         This is a
question of statutory interpretation, which we review de novo. 3
                                              III
      We apply a statute’s plain meaning, unless an absurd result obtains. 4
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,
               ...
            Shall 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. 5
      Lagrone argues that she should not have been convicted of two felonies
under § 641. The first theft, at the time it occurred, would not have resulted
in a felony conviction because of the lenity provision. She acknowledges that



      3   United States v. Lawrence, 727 F.3d 386, 391 (5th Cir. 2013).
      4   Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 486 (5th Cir. 2013).
      5   18 U.S.C. § 641.
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                                          No. 13-10049

after the second theft occurred—bringing the aggregate stolen property over
the $1,000 threshold—the court could treat her second theft as a felony. But
she argues that the first theft cannot retroactively be treated as a felony.
      The Government contends that the statutory language allows it to
charge a defendant with a felony 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 across all of the counts in the
case, is less than $1,000, in which event the maximum penalty is one year of
imprisonment.           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 amount,
aggregated across all counts, exceeds $1,000.
      The Government contends that we resolved this issue in United States v.
Reagan, 6 in which we held that “the ‘allowable unit of prosecution’ under § 641
is each individual transaction in which government money is received.” 7 In
Reagan, the defendant was convicted of five counts of violating § 641 for
improperly receiving $41,832 in federal rent-subsidy payments over a period
of five years. 8        He received five concurrent sentences of twelve months’
imprisonment, two years of supervised release, and five $100 special
assessments. 9 He challenged his sentence on the ground that the indictment
was multiplicitous and argued that he should only be subject to the penalties




      6   596 F.3d 251 (5th Cir. 2010).
      7   Id. at 254.
      8   Id. at 252.
      9   Id.
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for a single felony count. 10 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. 11
In Reagan, however, each of the counts for which the defendant was convicted
exceeded $1,000. 12 Consequently, the operation of § 641’s aggregation clause
was not at issue.
       However, we considered the effect of an aggregation clause in an almost
identical statute in United States v. Taylor 13 and reached the conclusion that
the operation of that statute’s lenity provision was clear. 14 Our decision in
Taylor involved a defendant convicted of offenses under 18 U.S.C. § 510, which
prohibits the fraudulent creation or use of Treasury checks, bonds, or securities
of the United States. 15 Section 510 provides in pertinent part that anyone
committing such an offense
       shall be fined not more than $10,000 or imprisoned not more than
       ten years, or both . . . . [but] [i]f the face value of the Treasury check
       or bond or security of the United States or the aggregate face value,
       if more than one Treasury check or bond or security of the United
       States, does not exceed $500 . . . the penalty shall be a fine of not
       more than $1,000 or imprisonment for not more than one year. 16


       10   Id. at 253-54.
       11   Id.
       12The 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, Reagan,
596 F.3d 251 (No. 08-11006), 2009 WL 6669669.
       13   869 F.2d 812 (5th Cir. 1989) (per curiam).
       14   Id. at 813-16.
       15   Id. at 813-14; see 18 U.S.C. § 510(a).
       16 Taylor, 869 F.2d at 814 & n.1 (quoting 18 U.S.C. § 510(a), (c) (1989)). Following
Taylor, Congress amended § 510 to raise the cap on the lenity provision to $1,000, to change
the amounts of fines permitted, and to authorize both a fine and imprisonment when the
lenity provision applies. See 18 U.S.C. § 510(a), (c) (2012). For the purposes of our analysis,
none of these amendments materially affect the operation of § 510’s lenity provision.
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                                      No. 13-10049

Like Lagrone, the defendant in Taylor was convicted of multiple counts for
offenses that individually fell below the statutory limit, but in the aggregate
exceeded the limit, and was sentenced under the felony penalty scheme for
each count. 17 In affirming the sentence, we held that, under the statute, if an
offender exceeded the $500 limit—“either in one check or in the aggregate of
checks [that] are the subject of all the counts on which he is to be sentenced”—
then he could be sentenced to ten years of imprisonment “for each offense, no
matter what size the check on which its charge was based.” 18 We reasoned
that, by its terms, § 510 dictates that the penalty for its violation is a felony,
and therefore, exceeding the lenity limit merely has the effect of denying to the
defendant “the benefit of a rescue provision limiting punishment for an offense
already declared a felony.” 19 We distinguished § 510 from a different statute,
18 U.S.C. § 665, which contained no aggregation clause in its lenity provision. 20
Unlike that statute, which “spares a defendant who commits one or many
violations so long as the amount involved in each transaction is less than $100,”
we explained that the congressional purpose of the lenity provision in § 510
was to “show[] mercy to a narrower group of defendants” whose transgressions
were neither large nor frequent. 21 We concluded in Taylor that the language
of § 510 was “clear” such that the rule of lenity did not apply. 22
      In the present case, the lenity provision of § 510 we interpreted in Taylor
is indistinguishable from the lenity provision in § 641. A felony conviction may



      17   Taylor, 869 F.2d at 813.
      18   Id. at 814.
      19   Id.
      20   Id. at 814-15.
      21   Id. at 815.
      22   Id.
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                                        No. 13-10049

be obtained for an initial theft below the $1,000 threshold when all thefts in
the case, aggregated, exceed $1,000.
       Separating § 641 into its constituent parts, the first clause establishes
that anyone who steals from the United States “[s]hall be fined under this title
or imprisoned not more than ten years, or both.” 23 The second clause then
provides a limited exception to this rule for individuals whose thefts in the
aggregate across all counts for which the defendant is convicted do not exceed
$1,000. 24 Contrary to Lagrone’s contention that allowing felony penalties on
all counts of theft when an initial theft does not exceed $1,000 makes the initial
theft retroactively more serious, § 641 plainly declares that all thefts are
already felonies. It is only if the aggregate value of the thefts does not exceed
$1,000 that the defendant may receive the benefit of § 641’s lenity provision
and be sentenced under a misdemeanor penalty scheme.
       Lagrone argues that the Government’s interpretation of § 641 raises
significant double-jeopardy issues such that the canon of constitutional
avoidance 25 compels us to reject the Government’s interpretation. She argues
that under the Supreme Court’s decision in Apprendi v. New Jersey, 26 any fact
that increases her statutory maximum sentence constitutes an element of the
offense. 27       While Apprendi addressed the issue as it related to the Sixth


       23   18 U.S.C. § 641.
       24   Id.
       25 See Jones v. United States, 529 U.S. 848, 857 (2000) (“[W]here a statute is
susceptible of two constructions, by one of which grave and doubtful constitutional questions
arise and by the other of which such questions are avoided, our duty is to adopt the latter.”
(quoting United States ex rel. Attorney Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909))
(internal quotation marks omitted)).
       26   530 U.S. 466 (2000).
       27 See id. at 490 (“[A]ny fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.”).
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                                      No. 13-10049

Amendment’s guarantee of a jury trial, a plurality of the Supreme Court has
indicated that the elements constituting an offense for Sixth Amendment
purposes may also serve as the elements for the purposes of the Fifth
Amendment’s double-jeopardy prohibition. 28 Lagrone asserts that because
proof of the theft offense in the second count, specifically the amount involved,
was essential to subject her to a felony penalty on the first count, the offense
in the second count is a lesser included offense of the offense in the first count.
She contends that she is therefore receiving an impermissible cumulative
punishment on the second offense.
       Assuming arguendo that the second count is a lesser included offense of
the first count, this argument nonetheless fails. In Missouri v. Hunter, 29 the
Supreme Court held that “[w]ith respect to cumulative sentences imposed in a
single trial, the Double Jeopardy Clause does no more than prevent the
sentencing court from prescribing greater punishment than the legislature
intended.” 30 However, it is clear from the language of § 641 that Congress
intended that the first theft could be punished as a felony even when the $1,000
threshold is met only by aggregation with a second theft. Therefore, Lagrone’s
second felony conviction does not raise significant double-jeopardy concerns.
                                        *        *        *
       For the foregoing reasons, the sentence of the district court is
AFFIRMED.




       28 See Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003) (Scalia, J.) (plurality
opinion) (“We can think of no principled reason to distinguish, in this context, between what
constitutes an offense for purposes of the Sixth Amendment’s jury-trial guarantee and . . .
the Fifth Amendment’s Double Jeopardy Clause.”).
       29   459 U.S. 359 (1996).
       30   Id. at 366.
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