868 F.3d 1242 (11th Cir. 2017), 16-16336, United States v. Tejas

Docket Nº:16-16336 Non-Argument Calendar
Citation:868 F.3d 1242, 27 Fla.L.Weekly Fed. C 107
Opinion Judge:PER CURIAM
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JHONATHAN TEJAS, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Rilwan Adeduntan, Carol Herman, Jason Wu, Assistant U.S. Attorney, Wifredo A. Ferrer, Gera R. Peoples, Emily M. Smachetti, U.S. Attorney's Office, MIAMI, FL. For JHONATHAN TEJAS, Defendant - Appellant: Ayuban Antonio Tomas, Law Office of A. Anto...
Judge Panel:Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
Case Date:August 23, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1242

868 F.3d 1242 (11th Cir. 2017)

27 Fla.L.Weekly Fed. C 107

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JHONATHAN TEJAS, Defendant-Appellant

No. 16-16336 Non-Argument Calendar

United States Court of Appeals, Eleventh Circuit

August 23, 2017

          D.C. Docket No. 1:16-cr-20354-DMM-1. Appeal from the United States District Court for the Southern District of Florida.

         For UNITED STATES OF AMERICA, Plaintiff - Appellee: Rilwan Adeduntan, Carol Herman, Jason Wu, Assistant U.S. Attorney, Wifredo A. Ferrer, Gera R. Peoples, Emily M. Smachetti, U.S. Attorney's Office, MIAMI, FL.

         For JHONATHAN TEJAS, Defendant - Appellant: Ayuban Antonio Tomas, Law Office of A. Antonio Tomas, PA, CORAL GABLES, FL.

         Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

          OPINION

         PER CURIAM

         Jhonathan Tejas appeals his 366-day sentence of imprisonment for theft of mail, in violation of 18 U.S.C. § 1708. On appeal, he argues that the district court erred in applying a few enhancements under the Sentencing Guidelines and in refusing to give him a reduction for acceptance of responsibility. We agree with Tejas that the enhancement for the number of victims, which was based on the application of a " special rule" in cases involving undelivered mail, did not apply on the specific facts of this case, so we vacate and remand for resentencing without that enhancement. We affirm the district court in all other respects.

         I.

         On April 23, 2016, Tejas took an express mail package from the front seat of a United States Postal Service (" USPS" ) delivery vehicle and then ran off. Tejas had approached the vehicle and the USPS mail carrier to ask about the package, which he claimed was his. But because he was unable to produce ID which matched the name and address on the package1, the mail carrier refused to release it to him. Instead, she put the package in the front of her vehicle and closed the door. Soon after, according to the mail carrier, Tejas grabbed her and slammed her into a nearby cluster mailbox, opened the door, took the package, and then ran off.

         Tejas was indicted on three counts: robbery of a postal employee, in violation of 18 U.S.C. § 2114(a), assaulting a postal employee, in violation of 18 U.S.C. § 111(a)(1), and theft of mail, in violation of 18 U.S.C. § 1708. Tejas pled not guilty and proceeded to trial. At trial, Tejas conceded that he had taken the package, but he disputed assaulting or harming the mail carrier. The jury found him guilty of theft of mail but not guilty of robbery and assault.

         Before sentencing, a probation officer prepared a presentence investigation report (" PSR" ) and calculated Tejas's guideline range using the 2015 Guidelines Manual. The probation officer applied several sentencing enhancements. Specifically, Tejas received (i) a two-level enhancement for an offense involving ten or more victims, under § 2B1.1(b)(2)(A)(i), based on a " special rule" in the commentary to § 2B1.1 which provides that theft of undelivered mail from a postal delivery vehicle " shall be considered to have involved at least 10 victims" ; (ii) a two-level enhancement, under § 2B1.1(b)(3), because the offense involved theft from the person of another; and (iii) a three-level enhancement, under § 3A1.2(a), because the victim was a government officer or employee and the offense was motivated by that status. The probation officer calculated a total offense level of 13, which, combined with Tejas's criminal history category of I, established a recommended sentencing guideline range of 12 to 18 months of imprisonment.

         Tejas objected to each of the enhancements. He also sought a reduction for acceptance of responsibility, claiming that he had never denied committing the only offense of which he was convicted.

         At Tejas's sentencing, the district court heard argument from the parties on the objections. Ultimately, the court overruled Tejas's objections and adopted the guideline range recommended by the PSR. With regard to the number of victims, the court found that the special rule applied, despite agreeing with defense counsel's assertion that Tejas " only came in contact with . . . one very specific piece of mail." With regard to the enhancement for theft " from the person of another," the court credited the mail carrier's testimony that Tejas pushed her aside before grabbing the package from the front of the delivery van. With regard to the " official victim" enhancement, the court found the facts of this case comparable to our decision in United States v. Bailey, 961 F.2d 180 (11th Cir. 1992)...

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