[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10042 June 20, 2006
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 05-00138-CR-002
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEREMY DEWAYNE NIEWALD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Alabama
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(June 20, 2006)
Before EDMONDSON, Chief Judge, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
Defendant-Appellant Jeremy Dewayne Niewald appeals the five-month
prison sentence imposed upon his conviction for mail theft, in violation of 18
U.S.C. § 1708, after he pled guilty without a plea agreement. No reversible error
has been shown; we affirm.
Defendant challenges the district court’s application of a six-level
enhancement under U.S.S.G. 2B1.1(b)(2)(C) upon the court’s finding by a
preponderance of the evidence that his criminal activity involved 250 or more
victims. Defendant asserts a two-part challenge: he first argues that a beyond-a-
reasonable-doubt standard of proof should have applied to contested facts used to
support an increase in the sentence imposed; he next argues that the record is
wanting to satisfy even a preponderance of the evidence standard. We see no
merit in these challenges.
About the standard of proof applicable to a U.S.S.G. § 2B1.1(b)(2)(C)
enhancement, Defendant argues that post-Booker, United States v. Booker, 125
S.Ct. 738 (2005), the government’s burden is beyond a reasonable doubt.1
According to Defendant, the beyond-a-reasonable-doubt standard derives from the
Constitution; and Defendant also contends that, under the doctrine of
1
Defendant’s constitutional argument rests on the Sixth Amendment cases that culminated in
Booker, considered in the light of the Fifth Amendment Due Process right to proof beyond a
reasonable doubt as recognized in In re Winship, 90 S.Ct. 1068, 1071-73 (1970).
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“constitutional avoidance,” this Court should avoid the difficult constitutional
issue of whether the reasonable doubt standard is constitutionally mandated and
apply that standard as a matter of statutory construction or judicial discretion.
Our post-Booker cases reflect no change to the standard of proof applicable
to sentencing enhancements. Provided the district court applies the guidelines as
advisory, nothing in Booker restricts the sentencing court from making factual
findings under a preponderance-of-the-evidence standard. See United States v.
Ndiaye, 434 F.3d 1270, 1300 (11th Cir. 2006) (“when a defendant challenges a
factual basis of his sentence, the government has the burden of establishing the
disputed fact by a preponderance of the evidence”); United States v. Chau, 426
F.3d 1318, 1323-24 (11th Cir. 2005) (affirming sentence based on judicial findings
of fact by a preponderance of the evidence standard because the guidelines were
applied in an advisory way), United States v. Rodriguez, 398 F.3d 1291, 1296
(11th Cir.), cert. denied, 125 S.Ct. 2935 (2005) (for purposes of guideline sentence
calculation, government bears burden of establishing disputed fact by
preponderance of the evidence).
Defendant also maintains that the government failed to show by a
preponderance of the evidence that his offense activity involved 250 or more
victims. The sentencing guidelines provide a six-level increase when the mail
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theft offense involves 250 or more victims. U.S.S.G. § 2B.1.1(b)(2)(C) and the
commentary to § 2B1.1 define victim to include “any person who was the intended
recipient, or addressee, of the undelivered United States mail.” U.S.S.G. § 2B1.1,
comment. n.4(C)(i).
The guidelines also provide a “special rule” creating a presumption
applicable to the determination of the number of victims of undelivered mail:
A housing unit cluster box or any similar receptacle that contains
multiple mailboxes, whether such receptacle is owned by the United
States Postal Service or otherwise owned, shall, unless proven
otherwise, be presumed to have involved the number of victims
corresponding to the number of mailboxes in each cluster box or
similar receptacle.
U.S.S.G. § 2B1.1, comment n.4(C)(ii)(II). Applying the presumption, the district
court determined that 250 mailboxes was but a very small portion of the total
number of mailboxes accessed by Defendant and his co-defendants.2 Defendant
complains that the postal inspector was unable to confirm that the number of
victims was necessarily equal to the number of mailboxes; indeed, the postal
inspector said specifically that he had no way of knowing from which mailboxes
mail was stolen. And Defendant argues further that the complaints received --
under 50 from apartment complex residents and about 100 from rural residents of
2
The district court considered the threshold number of 250 to be “just barely five percent of the
four thousand apartment boxes that were broken into.”
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west Mobile -- were not investigated fully to determine whether the complainant
was a “victim,” and, in any event, the number of complaints fell far short of 250.
The special rule for victim enhancement for offenses involving United
States mail was created because of
(i) the unique proof problems often attendant to such
offenses, (ii) the frequently significant, but difficult to
quantify, non-monetary losses in such offenses, and (iii)
the importance of maintaining the integrity of the United
States mail.
U.S.S.G. app. C, Amendment 617. Defendant’s protestations to the contrary
notwithstanding, reference to the postal inspector’s testimony provides no rebuttal
of the presumption set out in the special rule. The testimony underscores the need
for the special rule. The mail theft offense often eludes precise quantification.
No reversible error has been shown in the application of the six-level
sentencing enhancement under U.S.S.G. 2B1.1(b)(2)(C).
AFFIRMED.
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