Case: 14-11026 Document: 00513089335 Page: 1 Date Filed: 06/23/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-11026
Fifth Circuit
FILED
Summary Calendar June 23, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
GABRIEL GRANADO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-260
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Gabriel Granado appeals the sentence imposed following his guilty plea
conviction for one count of burglary of a United States Post Office in violation
of 18 U.S.C. §§ 2 and 2115 (Count One), and two counts of possession of stolen
mail in violation of 18 U.S.C. §§ 2 and 1708 (Counts Two and Three). He
contends that the district court plainly erred by using the intended loss to
calculate his offense level on Count One because U.S.S.G. § 2B2.1 does not
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-11026
define “loss” to include the intended loss. He also argues that the
$1,451,807.22 loss attributed to him on Count One was an incorrect valuation
of the property taken. Because Granado did not raise these arguments in the
district court, our review is limited to plain error. See United States v. Villegas,
404 F.3d 355, 358 (5th Cir. 2005), superseded by regulation on other grounds
as stated in United States v. Pimpton, 558 F. App’x 335, 337-38 (5th Cir. 2013).
Although the presentence report (PSR) referred to the $1,451,807.22 as
the “intended loss amount,” the PSR explained that this figure represented
“the total value of the 398 pieces of stolen U.S. Mail recovered by agents at the
Motel 6 on June 20, 2013.” Thus, Granado cannot show that the district court
misapplied § 2B2.1. See § 2B2.1(b)(2)(F); § 2B2.1, comment. (n.2).
Granado’s challenge to the district court’s valuation of the property
taken is also unavailing. “[Q]uestions of fact capable of resolution by the
district court can never constitute plain error.” United States v. Chung, 261
F.3d 536, 539 (5th Cir. 2001) (internal quotation marks and citations omitted).
Further, the $1,451,807.22 loss amount represents the cumulative face value
of the checks and money orders taken in the burglary offense. Courts have
upheld loss determinations based on the face value of the stolen checks or
money orders. See United States v. Wimbish, 980 F.2d 312, 316-17 (5th Cir.
1992), abrogated on other grounds by Stinson v. United States, 508 U.S. 36
(1993); United States v. Quertermous, 946 F.2d 375, 376, 378 (5th Cir. 1991);
see also United States v. Hallman, 23 F.3d 821, 823-24 (3d Cir. 1994).
Moreover, Granado has pointed to no evidence demonstrating a reasonable
probability that, absent the alleged error, the district court would have
imposed a lesser sentence. See United States v. Blocker, 612 F.3d 413, 416-17
(5th Cir. 2010). Accordingly, he cannot show reversible plain error. See
Puckett v. United States, 556 U.S. 129, 135 (2009).
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Granado also contends that the district court plainly erred by failing to
apply a three-level reduction for a partially completed offense under U.S.S.G.
§ 2X1.1(b)(1). He argues that the reduction was warranted because his
possession of stolen mail offenses were merely part of a larger attempted theft
and he was being held accountable for substantial portions of the
unaccomplished theft. He also argues that this court’s decision in United
States v. John, 597 F.3d 263 (5th Cir. 2010), compels the application of the
reduction because the bulk of the activity necessary to effectuate the over
$2,000,000 intended loss was uncompleted. Granado concedes that the alleged
error is not clear or obvious in light of our unpublished decision in United
States v. Thomas, 585 F. App’x 869 (5th Cir. 2014), cert. denied, 135 S. Ct. 1750
(2015), but he seeks to preserve the issue for further review in the event of a
subsequent clarifying opinion while the appeal remains pending.
In Thomas, we concluded that the reduction did not apply because
“Thomas was convicted of possession of stolen mail, and no uncompleted
offenses were considered in calculating his offense level.” Thomas, 585 F.
App’x at 869-70, quote at 870. We reasoned that the decision in John was
distinguishable and that “Thomas’ underlying offense of possession of stolen
mail [did] not require actual loss as part of the substantive offense.” Id. at 870.
Finally, we noted that the proper focus was “on the substantive offense and the
defendant’s conduct in relation to that specific offense.” Id. (internal quotation
marks and citation omitted). Although our decision in Thomas is not binding,
it is persuasive and instructive authority. See 5TH CIR. R. 47.5.4; United States
v. Sauseda, 596 F.3d 279, 282 (5th Cir. 2010). Further, as Granado
acknowledges, in light of Thomas, whether the district court committed clear
and obvious error is at least subject to reasonable debate. See United States v.
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Ellis, 564 F.3d 370, 377-78 (5th Cir. 2009). Accordingly, Granado cannot show
reversible plain error. See Puckett, 556 U.S. at 135.
AFFIRMED.
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