United States District Court, Central District of Illinois, Springfield Division
January 29, 2003
UNITED STATES OF AMERICA, PLAINTIFF,
THOMAS EDWARD WHITE, DEFENDANT.
The opinion of the court was delivered by: Richard Mills, United States District Judge
A truck driver is convicted of theft of mail matter.*fn1
Does the enhancement for abusing a position of public trust apply to
someone whose job it is to deliver the mail but who is not an employee of
the United States Postal Service?
The special nature of the United States mail mandates it.
As set forth in his plea agreement, on March 4, 2001, Defendant was
employed as a driver for T&W Trucking. As a driver for T&W Trucking,
Defendant was assigned to deliver mail matter. Specifically, Defendant
was assigned to deliver registered mail pouches from the Beardstown,
Illinois, Post Office to the Springfield, Illinois, Post Office. These
registered mail pouches contained postal proceeds from the Beardstown
Post Office and from a postal substation which totaled over $16,000.00.
Rather than deliver these mail pouches to the Springfield Post Office,
however, Defendant opened the pouches and removed the cash therein. On
June 7, 2002, a federal grand jury indicted Defendant on two Counts of
theft of mail matter in violation of
On August 27, 2002, Defendant changed his plea before United States
Magistrate Judge Byron G. Cudmore from not guilty to guilty of the two
Counts of theft of mail matter as charged in the Indictment. On September
13, 2002, the Court accepted Judge Cudmore's Report and Recommendation
regarding Defendant's adjudication of guilt, and a judgment of guilty was
Defendant has now raised the following unresolved objections to the
Presentence Investigation Report ("PSR"):
II. OBJECTIONS AND FINDINGS
A. Paragraph 18
Defendant objects to paragraph 18 wherein he receives a two level
enhancement for abusing a position of public trust. Defendant argues that
application note 1 to U.S.S.G. § 3B1.3 explicitly states that the
enhancement would not apply to a bank teller who stole money from a
bank. Defendant contends that his position as a driver for T&W Trucking
had even less responsibility than that of an ordinary bank teller, and
therefore, the enhancement should not apply.*fn2
Furthermore, Defendant notes that he was not a postal employee
(contract or otherwise). Accordingly, Defendant asserts that the second
paragraph of application note 1 to U.S.S.G. § 3B1.3 does not apply to
Prior to 1993, Defendant's argument may have had some validity. E.g.
United States v. Cuff, 999 F.2d 1396, 1397 (9th Cir. 1993) (per curiam)
(reversing the application of U.S.S.G. § 3B1.3 to a postal employee
who was convicted of mail theft in violation of 18 U.S.C. § 1709 and
specifically "fail[ing] to see any significant distinction between the
bank teller who embezzles funds and Cuff, who stole mail packages while
employed in unloading them and moving them into the workroom.").
However, in 1993, the Sentencing Commission amended the commentary to
U.S.S.G. § 3B1.3 in order to clarify the meaning of "public or
In addition, the Sentencing Commission added the second paragraph to
application note 1 which provides:
Notwithstanding the preceding paragraph, because of
the special nature of the United States mail an
adjustment for an abuse of a position of trust will
apply to any employee of the U.S. Postal Service who
engages in the theft or destruction of undelivered
United States mail.
U.S.S.G. § 3B1.3, cmt., n. 1. Because Defendant has been convicted of
theft of undelivered mail, the Court finds that the enhancement should
apply to him.
While it is true that Defendant is not technically an employee of the
United States Postal Service, his employment status is merely a factor to
be considered; it is not outcome determinative. See United States v.
Brown, 7 F.3d 1155, 1161 (5th Cir. 1993) (holding that "[t]he fact that
Brown's employer was a private entity that contracted its work to the
prison is relevant but not determinative."). The Court believes that, in
examining the second paragraph to application note one to U.S.S.G. §
3B1.3, the focus of the Court's inquiry should be on the phrase "the
special nature of the United States mail" rather than upon the phrase "to
any employee of the U.S. Postal Service". The Court believes that this
interpretation is in keeping with the Sentencing Commission's desire "to
protect the delivery of the mail." United States v. Jankowski, 194 F.3d 878,
884 (8th Cir. 1999).
Finally, the Court finds that Defendant's reliance upon United States v.
West, 56 F.3d 216 (D.C. Cir. 1995), is inapposite. We agree with the Eighth
Circuit in Jankowski, that
the enhancement for postal employees is an exception
to the general definition as stated in the first
paragraph of note 1. In our view, the enhancement for
postal employees was not meant to carve out a general
exception for all those who abuse positions of trust
tasks similar to the delivery of mail.
Instead, the language "[n]otwithstanding the preceding
paragraph, because of the special nature of the United
States mail" makes it clear that the exception is
limited and meant only to protect the delivery of the
Jankowski, 194 F.3d at 884.
Accordingly, Defendant's objection to paragraph 18 is denied.
B. Paragraph 20, 22, 24 & 53
Defendant also objects to paragraphs 20, 22, 24, and 53 which calculate
his adjusted offense level. Defendant argues that these paragraphs should
be two offense levels lower based upon his objection to paragraph 18.
However, because the Court has denied Defendant's objection to
paragraph 18, the PSR is correct as written, and his objections to
paragraphs 20, 22, 24, and 53 are, likewise, denied.
Ergo, Defendant's Objections to the Presentence Investigation Report are
Therefore, Defendant has an adjusted offense level of 9 and a criminal
history within category I, yielding a sentencing range of 4 to 10 months of
Accordingly, Defendant is sentenced to a term of five years of
probation with the first six months to be served in home confinement on
each of Counts I and II to be served concurrently. Defendant is also
ordered to pay restitution immediately in the amount of $16,431.63 to the
United States Post Office, 101 East Main Street, Beardstown, Illinois,
62618. Finally, Defendant is ordered to pay a special assessment of
$200.00 immediately. No fine or term of supervised release is ordered.