District Court Erred in Determining Number of Victims of Mail Theft

U.S. v. Leach, --- F.3d ----, 2005 WL 1820046 (10th Cir. August 3, 2005): Defendant pled guilty to theft of mail by a postal employee, and was sentenced to 37 months in prison after she was found to have stolen more than 45 pieces of mail addressed to Voice of the Martyrs (VOM), a nonprofit organization that assists Christians around the world who are being persecuted for their faith, and other charitable organizations. After Defendant pled guilty but before her sentencing, Blakely v. Washington was decided. The district court rejected the defendant's argument that she had waived only her right to have a jury determine guilt or innocence and determined that it could make evidentiary findings at sentencing. Accordingly, following an evidentiary hearing, the district court made two disputed findings of fact: 1) that the amount of loss was $134,571.34 and 2) that the number of victims was more than 50. In addition to challenging these findings on appeal, the defendant contended that the court engaged in unconstitutional fact-finding in violation of Blakely and Booker. The COA first rejected the Booker/Blakely argument on the grounds that defendant had waived her right to a jury trial in her plea agreement and had declined to withdraw her plea after being given the opportunity to do so. The Court then addressed the loss amount, and affirmed the district court's loss finding. VOM had kept a record of every donor who reported that a check he or she had sent had not been cashed. That amount totaled $253,555.42. However, the court deducted from that amount replacement checks to obtain the total of $134,571.34. The COA concluded that the district did not clearly err in this calculation of loss. On the issue of number of victims, though, the COA concluded that the district court erred in finding that there were more than 50 victims and enhancing the defendant's offense level on that basis. The district court had concluded that the over 200 donors to VOM who had reported uncashed checks were victims.The COA noted that when defendant was arrested, she had in her possession mail addressed to 8 different persons or addressees. Moreover, the district court's calculation of loss focused only VOM's loss, and not on any loss or "replacement costs" incurred by donors who sent in additional checks (the 37-cents each plus a five-cent envelope?). Accordingly, remand for resentencing was required.