United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 15, 2006
Charles R. Fulbruge III
Clerk
No. 05-40697
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LERRY KEHINDE AKINSUROJU,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:04-CR-101
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Lerry Kehinde Akinsuroju appeals his jury-trial conviction
and sentence on five counts of embezzlement of United States mail
by a postal employee, in violation of 18 U.S.C. § 1709. On
appeal, Akinsuroju challenges the sufficiency of the evidence
supporting his conviction. He argues that the Government failed
to prove beyond a reasonable doubt that he intended to embezzle
United States mail. Akinsuroju moved for a judgment of acquittal
at the close of the Government’s case, but failed to renew the
*
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this opinion should not be published and is not precedent except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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motion at the close of the evidence. Accordingly, our review is
limited to whether his conviction resulted in a manifest
miscarriage of justice. United States v. Inocencio, 40 F.3d 716,
724 (5th Cir. 1994). Such a miscarriage would exist only “if the
record is devoid of evidence pointing to guilt, or . . . because
the evidence on a key element of the offense was so tenuous that
a conviction would be shocking.” Id. (citations omitted).
“[T]he evidence . . . must be considered in the light most
favorable to the government, giving the government the benefit of
all reasonable inferences and credibility choices.” Id.
To obtain a conviction for embezzlement of mail, the
Government must prove beyond a reasonable doubt that: (1) the
defendant was an employee of the United States Postal Service at
the time of the offense, (2) an article intended to be conveyed
by mail came into the defendant’s possession in the course of the
defendant’s duties as a Postal Service employee, and (3) the
defendant embezzled the article of mail. United States v.
Roberson, 650 F.2d 84, 87 (5th Cir. 1981), abrogated on other
grounds, United States v. Corral-Franco, 848 F.2d 536, 541 (5th
Cir. 1988).
According to the evidence adduced at trial, Akinsuroju was
employed as a postal carrier with the United States Postal
Service in Plano, Texas, at the time of his arrest. He was
observed by Postal Inspection Service agents taking mail from his
postal vehicle and placing it inside the trunk of his personal
No. 05-40697
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vehicle. When confronted by the agents, Akinsuroju admitted to
having stolen many items on a routine basis from the
undeliverable bulk business mail bin. Testimony confirmed that
mail found in Akinsuroju’s trunk was properly post-marked, was
intended to be conveyed by mail, and was entrusted to Akinsuroju
for delivery. Contrary to Akinsuroju’s claim, the Government
proved that he intended to embezzle mail when it presented
testimony that Akinsuroju admitted to stealing the items found in
his vehicle and initialed each item that he had stolen.
The evidence clearly establishes that Akinsuroju’s
conviction was not a manifest miscarriage of justice. See
Inocencio, 40 F.3d at 724. In fact, viewed in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. at 319.
Akinsuroju next argues that the district court clearly erred
by increasing his base offense level by four levels pursuant to
U.S.S.G. § 2B1.1(b)(2)(B) because his offense involved a specific
number of mail items embezzled from specific victims and thus the
underlying reasons for presuming that his offense involved at
least 50 victims--unique problems of proof--did not exist.
Section 2B1.1(b)(2)(B) provides for a four-level enhancement
where a defendant is convicted of an embezzlement offense
involving 50 or more victims. Because of the unique problems of
proof, the difficult-to-quantify non-monetary losses, and the
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importance of maintaining the integrity of the United States
mail, the Guideline includes a special provision for cases
involving the taking of undelivered United States mail from a
United States Postal Service delivery vehicle. § 2B1.1(b)(2)(B),
comment. (n.4(C)(i),(ii)(I)). That application note provides
that the offense shall be considered to have involved at least 50
victims.
After the Supreme Court’s ruling in United States v. Booker,
543 U.S. 220 (2005), we continue to review the district court’s
application of the guidelines de novo and its factual findings
for clear error. United States v. Villegas, 404 F.3d 355, 361-62
(5th Cir. 2005); United States v. Villanueva, 408 F.3d 193, 203 &
n.9 (5th Cir. 2005), cert. denied, 126 S. Ct. 268 (2005. A
district court’s determination of what constitutes relevant
conduct for sentencing purposes is a factual finding. United
States v. Buck, 324 F.3d 786, 796 (5th Cir. 2003). If a factual
finding is plausible in light of the record as a whole, there is
no clear error. United States v. Parker, 133 F.3d 322, 330 (5th
Cir. 1998).
Akinsuroju was assigned to Rural Route 62 in June 2001, and
delivered mail on the route until his arrest on February 10,
2004. During that time, the postal service received numerous
complaints from the residents living on Akinsuroju’s route. He
admitted to stealing mail items on a routine basis. It is
plausible that, during the two years and eight months that
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Akinsuroju was assigned to Rural Route 62, he embezzled mail from
at least 50 victims, and the district court’s finding to that
effect is not clearly erroneous. Moreover, the plain language of
the commentary requires the application of the guideline when
United States mail is taken from a postal service vehicle.
Accordingly, Akinsuroju’s argument lacks merit. His conviction
and sentence are AFFIRMED.