                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 15, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-40697
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

LERRY KEHINDE AKINSUROJU,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 4:04-CR-101
                       --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Lerry Kehinde Akinsuroju appeals his jury-trial conviction

and sentence on five counts of embezzlement of United States mail

by a postal employee, in violation of 18 U.S.C. § 1709.       On

appeal, Akinsuroju challenges the sufficiency of the evidence

supporting his conviction.   He argues that the Government failed

to prove beyond a reasonable doubt that he intended to embezzle

United States mail.   Akinsuroju moved for a judgment of acquittal

at the close of the Government’s case, but failed to renew the


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                           No. 05-40697
                                -2-

motion at the close of the evidence.   Accordingly, our review is

limited to whether his conviction resulted in a manifest

miscarriage of justice.   United States v. Inocencio, 40 F.3d 716,

724 (5th Cir. 1994).   Such a miscarriage would exist only “if the

record is devoid of evidence pointing to guilt, or . . . because

the evidence on a key element of the offense was so tenuous that

a conviction would be shocking.”   Id. (citations omitted).

“[T]he evidence . . . must be considered in the light most

favorable to the government, giving the government the benefit of

all reasonable inferences and credibility choices.”     Id.

     To obtain a conviction for embezzlement of mail, the

Government must prove beyond a reasonable doubt that:    (1) the

defendant was an employee of the United States Postal Service at

the time of the offense, (2) an article intended to be conveyed

by mail came into the defendant’s possession in the course of the

defendant’s duties as a Postal Service employee, and (3) the

defendant embezzled the article of mail.   United States v.

Roberson, 650 F.2d 84, 87 (5th Cir. 1981), abrogated on other

grounds, United States v. Corral-Franco, 848 F.2d 536, 541 (5th

Cir. 1988).

     According to the evidence adduced at trial, Akinsuroju was

employed as a postal carrier with the United States Postal

Service in Plano, Texas, at the time of his arrest.   He was

observed by Postal Inspection Service agents taking mail from his

postal vehicle and placing it inside the trunk of his personal
                             No. 05-40697
                                  -3-

vehicle.   When confronted by the agents, Akinsuroju admitted to

having stolen many items on a routine basis from the

undeliverable bulk business mail bin.       Testimony confirmed that

mail found in Akinsuroju’s trunk was properly post-marked, was

intended to be conveyed by mail, and was entrusted to Akinsuroju

for delivery.   Contrary to Akinsuroju’s claim, the Government

proved that he intended to embezzle mail when it presented

testimony that Akinsuroju admitted to stealing the items found in

his vehicle and initialed each item that he had stolen.

     The evidence clearly establishes that Akinsuroju’s

conviction was not a manifest miscarriage of justice. See

Inocencio, 40 F.3d at 724.    In fact, viewed in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.   Jackson v. Virginia, 443 U.S. at 319.

     Akinsuroju next argues that the district court clearly erred

by increasing his base offense level by four levels pursuant to

U.S.S.G. § 2B1.1(b)(2)(B) because his offense involved a specific

number of mail items embezzled from specific victims and thus the

underlying reasons for presuming that his offense involved at

least 50 victims--unique problems of proof--did not exist.

     Section 2B1.1(b)(2)(B) provides for a four-level enhancement

where a defendant is convicted of an embezzlement offense

involving 50 or more victims.     Because of the unique problems of

proof, the difficult-to-quantify non-monetary losses, and the
                            No. 05-40697
                                 -4-

importance of maintaining the integrity of the United States

mail, the Guideline includes a special provision for cases

involving the taking of undelivered United States mail from a

United States Postal Service delivery vehicle.    § 2B1.1(b)(2)(B),

comment. (n.4(C)(i),(ii)(I)).    That application note provides

that the offense shall be considered to have involved at least 50

victims.

     After the Supreme Court’s ruling in United States v. Booker,

543 U.S. 220 (2005), we continue to review the district court’s

application of the guidelines de novo and its factual findings

for clear error.   United States v. Villegas, 404 F.3d 355, 361-62

(5th Cir. 2005); United States v. Villanueva, 408 F.3d 193, 203 &

n.9 (5th Cir. 2005), cert. denied, 126 S. Ct. 268 (2005.     A

district court’s determination of what constitutes relevant

conduct for sentencing purposes is a factual finding.     United

States v. Buck, 324 F.3d 786, 796 (5th Cir. 2003).    If a factual

finding is plausible in light of the record as a whole, there is

no clear error.    United States v. Parker, 133 F.3d 322, 330 (5th

Cir. 1998).

     Akinsuroju was assigned to Rural Route 62 in June 2001, and

delivered mail on the route until his arrest on February 10,

2004.   During that time, the postal service received numerous

complaints from the residents living on Akinsuroju’s route.        He

admitted to stealing mail items on a routine basis.     It is

plausible that, during the two years and eight months that
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                                  -5-

Akinsuroju was assigned to Rural Route 62, he embezzled mail from

at least 50 victims, and the district court’s finding to that

effect is not clearly erroneous.    Moreover, the plain language of

the commentary requires the application of the guideline when

United States mail is taken from a postal service vehicle.

Accordingly, Akinsuroju’s argument lacks merit.   His conviction

and sentence are AFFIRMED.
