United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 15, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_____________________ Clerk
No. 03-10116
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL C. ROBERSON,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(USDC No. 4:02-CR-182-1-A)
Before GARWOOD, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Defendant Michael C. Roberson, a former employee of the United
States Post Office, pleaded guilty to a one-count information that
charged him with stealing the cash proceeds of retail postage sales
and making false and fictitious entries regarding those sales in
the records of the United States Postal Service in violation of 18
U.S.C. § 2073. On appeal, Roberson challenges the sentence imposed
by the district court for his offense, arguing that the district
court erred when it estimated the loss attributable to his crime to
*
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this opinion should not be published and is not precedent except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.
be at least $28,582.24 and increased his offense level by four
points. Specifically, Roberson argues that the loss estimation is
erroneous because it is based on unsubstantiated assumptions about
specific transactions that Roberson voided under unusual
circumstances, and on unsubstantiated assumptions about the
frequency with which Roberson used various illegal schemes to
cover-up his thefts.
A district court's calculation of loss attributable to a
defendant's scheme to steal or defraud is a factual finding that
this court reviews for clear error. United States v. Caldwell, 302
F.3d 399, 418 (5th Cir. 2002); United States v. Robichaux, 995 F.2d
565, 571 (5th Cir. 1993). For purposes of sentencing, “the loss
need not be determined with precision.” United States v. Hammond,
201 F.3d 346, 350 (5th Cir. 1999) (quoting United States Sentencing
Commission, Guidelines Manual, § 2B1.1, comment (n.3) (Nov. 1998)).
“The court need only make a reasonable estimate of the loss, given
the available information.” Id.
In this case, after careful consideration of the briefs and
the record, we are not persuaded that the district court committed
any prejudicial error when it estimated the loss attributable to
Roberson’s crimes to be at least $28,582.24. Accordingly, we
affirm the sentence imposed by the district court.
As noted above, Roberson pleaded guilty to a one-count
information that charged him with making false and fictitious
entries regarding retail postage sales in the records of the United
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States Postal Service in violation of 18 U.S.C. § 2073. By
pleading guilty to the information, Roberson admitted that, from
approximately September 24, 1999, until June 14, 2001, he
deliberately (1) voided legitimate sales of postage, (2) failed to
report sales of postage, and (3) mishandled and mislabeled cash
transactions as check transactions in order to cover-up his theft
of cash proceeds from those sales. In addition, at sentencing,
the government established that the Mansfield, Texas Post Office
where Roberson worked lost an approximate total of $41,000 in
retail inventory and/or sales proceeds during the time when
Roberson admittedly embezzled cash from retail postage sales.
Because Roberson was the only person inculpated in the
investigation of the Mansfield Post Office’s retail losses, the
district court reasonably could have estimated that all of the Post
Office’s retail losses were attributable to Roberson’s illegal
schemes. Because the district court could have reasonably
estimated the loss attributable to Roberson’s crime to be
approximately $41,000, there can be no prejudicial error associated
with an estimate that is less than that amount.
In order to show a prejudicial clear error in this case,
Roberson would have to show that it was clearly erroneous for the
district court to estimate his loss to be more than $10,000 (the
minimum amount of loss necessary to trigger the four-point increase
in offense level that Roberson actually received). See U.S.S.G. §
§ 2B1.1(b)(1)(C). Although Roberson has challenged the reliability
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of the method used by his probation officer in his presentence
report and by the district court to calculate the exact figure of
$28,582.24, Roberson has produced no evidence to show that the loss
attributable to his crimes was only $10,000 or less. Thus, while
we do not embrace the district court’s methodology in computing the
total loss over the period of twenty-one months, we are persuaded
that based upon the entire record, there was no clear error in
estimating the loss attributable to Roberson’s crime to be more
than $10,000 and less than $41,000.
Accordingly we AFFIRM the sentence of the district court.
AFFIRMED.
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