United States v. Riccardi

Decision Date03 March 2021
Docket NumberNo. 19-4232,19-4232
Citation989 F.3d 476
Parties UNITED STATES of America, Plaintiff-Appellee, v. Jennifer RICCARDI, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

MURPHY, Circuit Judge.

Jennifer Riccardi, a postal employee, pleaded guilty to stealing 1,505 gift cards from the mail. Most of these gift cards had an average value of about $35 for a total value of about $47,000. The Sentencing Guidelines directed the district court to increase Riccardi's guidelines range based on the amount of the "loss." U.S.S.G. § 2B1.1(b)(1). Yet § 2B1.1 does not define the word "loss." A search for its ordinary meaning might produce definitions such as "[t]he amount of something lost" or "[t]he harm or suffering caused by losing or being lost." American Heritage Dictionary of the English Language 1063 (3d ed. 1992). Perhaps, then, the word is ambiguous on the margins. Does it, for example, cover only financial harms or emotional ones too? But one definition of "loss" that you will not find in any dictionary is the rule that the district court used for Riccardi's stolen gift cards: a $500 minimum loss amount for each gift card no matter its actual value or the victim's actual harm (which, for Riccardi, amounted to a total loss amount of $752,500).

Riccardi challenges the use of this $500 minimum loss amount, which comes from the Sentencing Commission's commentary to § 2B1.1. The commentary instructs that the loss "shall be not less than $500" for each "unauthorized access device," a phrase that Riccardi concedes covers stolen gift cards. U.S.S.G. § 2B1.1 cmt. n.3(F)(i). But guidelines commentary may only interpret, not add to, the guidelines themselves. United States v. Havis , 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (per curiam). And even if there is some ambiguity in § 2B1.1 ’s use of the word "loss," the commentary's bright-line rule requiring a $500 loss amount for every gift card does not fall "within the zone of ambiguity" that exists. Kisor v. Wilkie , ––– U.S. ––––, 139 S. Ct. 2400, 2416, 204 L.Ed.2d 841 (2019). So this bright-line rule cannot be considered a reasonable interpretation of—as opposed to an improper expansion beyond— § 2B1.1 ’s text. We thus reverse Riccardi's sentence and remand for resentencing without the use of the commentary's automatic $500 minimum loss amount for every gift card.

I

In September 2017, an Ohioan mailed a $25 Starbucks gift card from the City of Mentor in northeast Ohio. The gift card never reached its destination at an address in nearby Parma. The sender complained to the U.S. Postal Service, which opened an investigation. Investigators learned that supervisors at a Cleveland distribution center had been finding lots of opened mail in the processing area. The investigation led to an employee at the center: Jennifer Riccardi. When confronted, Riccardi admitted that she had been stealing mail that might contain cash or gift cards. A search of Riccardi's home revealed that she had been doing so for quite some time. It uncovered over 100 pieces of mail that she had taken just that day, $42,102 in cash, and 1,505 gift cards. The gift cards were laid out on the floor of Riccardi's home organized by the 230 or so merchants at which they could be redeemed.

Riccardi pleaded guilty to three counts: possessing stolen mail in violation of 18 U.S.C. § 1708 ; stealing mail as a postal employee in violation of 18 U.S.C. § 1709 ; and possessing 15 or more "unauthorized access devices" in violation of 18 U.S.C. § 1029(a)(3). In her plea agreement, Riccardi confessed that she had been stealing mail for a year. When sorting mail, she would set aside items that might contain cash or gift cards (such as colorful greeting cards) and sneak these items out of the distribution center during her break or at the end of her shift. Riccardi would use the stolen gift cards herself or sell them to others. Of the 1,505 gift cards found at her home, 1,322 had face values totaling about $47,000 for an average of about $35 each. The government did not identify the values of the remaining 183 gift cards.

Riccardi's presentence report determined her guidelines range using U.S.S.G. § 2B1.1. When measuring the loss for the 1,505 gift cards, the report applied the $500 minimum loss amount from § 2B1.1 ’s commentary, id. § 2B1.1 cmt. n.3(F)(i), resulting in a total loss of $752,500. The presentence report thus bumped Riccardi up to a loss category of between $550,000 and $1,500,000 and increased her offense level by 14. This enhancement resulted in a guidelines range of 46 to 57 months’ imprisonment.

At sentencing, Riccardi objected to the use of this $500 minimum loss amount because most of the stolen gift cards were worth a fraction of that amount. The district court overruled her objection. After considering the sentencing factors, it imposed a sentence near the top of the guidelines range: 56 months’ imprisonment. The court also ordered Riccardi to pay $89,102 in restitution, an amount that included the $42,102 in cash found at her home and the value of the gift cards ($47,000). The court ordered this restitution even though Riccardi had already forfeited the cash and gift cards to the government. It reasoned that forfeiture and restitution were distinct obligations.

Riccardi raises two challenges on appeal. She argues that the district court should not have applied the $500 minimum loss amount to each of the gift cards and that it should have offset her restitution obligation with the amounts that she forfeited. We address each argument in turn.

II. "Loss" Amount

The guideline for theft offenses— U.S.S.G. § 2B1.1 —starts with a base offense level of 6. Id. § 2B1.1(a)(2). It then lists a variety of offense characteristics that can affect this offense level, ranging from the number of victims involved, id. § 2B1.1(b)(2)(A)(i), to the possession of a firearm, id. § 2B1.1(b)(16)(B). As relevant here, courts must "increase the offense level" in incremental amounts based on the "loss" from the offense. Id. § 2B1.1(b)(1). If the loss is "[m]ore than $6,500," § 2B1.1 instructs courts to add 2 to the offense level. Id. § 2B1.1(b)(1)(B). If the loss is "[m]ore than $15,000," it instructs them to add 4. Id. § 2B1.1(b)(1)(C). The guideline continues in this fashion up to a loss amount of "[m]ore than $550,000,000," for which it directs courts to increase the offense level by 30. Id. § 2B1.1(b)(1)(P).

The government bears the burden to prove the amount of the loss by a preponderance of the evidence. See, e.g. , United States v. Jones , 641 F.3d 706, 712 (6th Cir. 2011) ; United States v. Rothwell , 387 F.3d 579, 582 (6th Cir. 2004). We treat the district court's "determination of the amount of loss" as a factual finding and thus review it under a deferential clear-error standard. United States v. Warshak , 631 F.3d 266, 328 (6th Cir. 2010). But we review de novo the district court's "methodology for calculating" the loss and its interpretation of the guidelines. Id. ; United States v. Thomas , 933 F.3d 605, 608 (6th Cir. 2019). A misinterpretation of a guideline can result in a procedurally unreasonable sentence. See, e.g. , United States v. Stubblefield , 682 F.3d 502, 510 (6th Cir. 2012) ; cf. Rosales-Mireles v. United States , ––– U.S. ––––, 138 S. Ct. 1897, 1907–08, 201 L.Ed.2d 376 (2018).

Here, the government did not attempt to meet its burden to prove the loss from Riccardi's theft by relying on factual evidence about the total amount that Riccardi stole or the total harm that her victims suffered. Instead, the government sought to meet its burden by relying on a legal rule that treats the "loss" for each of the 1,505 gift cards as $500 even though most of the gift cards had values averaging about $35. Riccardi raises two challenges to the use of this $500 mandatory minimum. She first argues that the district court misread § 2B1.1 ’s commentary by applying the $500 minimum to the gift cards that had face values below that amount. Even if the $500 minimum applied, Riccardi next argues that the commentary's mandatory minimum conflicts with § 2B1.1 ’s text. We review both legal arguments de novo. See Warshak , 631 F.3d at 328.

A

Riccardi initially claims that the district court wrongly applied the $500 minimum loss amount under the plain language of § 2B1.1 ’s commentary. She misreads the commentary.

Although § 2B1.1 directs district courts to increase the offense level based on the amount of the "loss," the guideline itself leaves this critical word undefined. U.S.S.G. § 2B1.1(b)(1). The Sentencing Commission instead added guidance over how to determine the "loss" in commentary accompanying § 2B1.1. Application Note 3 provides a detailed code for "the determination of loss under subsection (b)(1)." Id. § 2B1.1 cmt. n.3. This application note sets a general rule that "loss" means "the greater of actual loss or intended loss." Id. § 2B1.1 cmt. n.3(A). It defines "actual loss" to mean "the reasonably foreseeable pecuniary harm that resulted from the offense" and "intended loss" to mean "the pecuniary harm that the defendant purposely sought to inflict[.]" Id. § 2B1.1 cmt. n.3(A)(i)(ii). Yet Application Note 3 later orders courts to use "special rules" "to assist in determining loss" in specific types of cases, including those involving "unauthorized access devices." Id. § 2B1.1 cmt. n.3(F). It states: "In a case involving any ... unauthorized access device, loss includes any unauthorized charges made with the ... unauthorized access device and shall be not less than $500 per access device." Id. § 2B1.1 cmt. n.3(F)(i).

Application Note 3(F)(i)’s special rule applies here. This rule gives "unauthorized access device" the definition from 18 U.S.C. § 1029(e)(3). Id. § 2B1.1 cmt. nn.3(F)(i), 10(A). Section 1029(e) defines "unauthorized access device" as a "stolen" access device, and it defines "access device" as "any card" "or other means of account access that can be used" "to obtain...

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