QUIST, District Judge:
Defendants Jason and Jolynn May pled guilty to one count of receipt of stolen mail and one count of mail theft, in violation of 18 U.S.C. § 1708.
In December 2010, during the holiday season, the Mays engaged in a series of mail thefts in the Vancouver, Washington area. On at least four occasions that month, the Mays drove through Vancouver neighborhoods on "Christmas shopping" trips — as the Mays dubbed them — in search of packages to steal. Mychal Lecouris accompanied the Mays on several occasions. During these trips, Jolynn drove the Mays' Volkswagen, with Jason in the passenger seat and Lecouris in the back, while they looked for packages on porches, in doorways, or in community mailboxes. When they spotted a package, Jason or Lecouris would grab it from the porch or doorway, return to the car. They would usually unwrap it and throw the packaging out the car window. If the target package was in a community mailbox, Jason would use vice-grips to twist the lock and would then remove the package from the parcel locker.
On December 24, 2010, based on a witness tip, police officers arrested the Mays as they sat parked in their Volkswagen at their apartment. A search of the Mays' apartment and Volkswagen revealed evidence of stolen property, including children's toys and books, medications, and airline uniforms, some of which were still in priority mail boxes with missing address labels.
The Mays were charged in a two-count indictment with receipt of stolen mail and mail theft in violation of 18 U.S.C. § 1708. Count 1 alleged that the Mays unlawfully possessed stolen mail "no later than December 2, 2010, and continuing through at least December 24, 2010." Count 2 alleged that the Mays committed mail theft on December 24, 2010. The Mays pled guilty to both counts pursuant to written plea agreements, in which they admitted to stealing mail on at least four occasions during December 2010.
The Mays' presentence reports identified the USPS as a victim and recommended that the loss calculation include $69,753 in expenses the USPS incurred to prevent additional mail thefts. The district court held a hearing to establish loss for sentencing and restitution, at which the government presented testimony from Angela Pacuzca, the acting manager of the
The district court concluded that the USPS's expenses should be included as loss under the United States Sentencing Guidelines ("U.S.S.G.") and applied an eight-level enhancement under U.S.S.G. § 2B1.1(b)(1)(E) for loss exceeding $70,000 (consisting of the USPS's expenses and $2,104 in loss suffered by unidentified postal customers). The district court further concluded that the USPS's expenses should be considered a loss for purposes of restitution and ordered the Mays to pay $69,778 in restitution.
The Mays argue that the district court erred in including the USPS's expenses as loss under U.S.S.G. § 2B1.1 because they were incurred solely to deter future mail thefts, rather than to address or mitigate the effects of the Mays' completed offenses. Thus, the Mays argue, their conduct did not proximately cause the USPS's expenditures.
We review "the district court's interpretation of the Sentencing Guidelines de novo, the district court's application of the Sentencing Guidelines to the facts of this case for abuse of discretion, and the district court's factual findings for clear error." United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005).
We begin with loss under the Sentencing Guidelines, which is "the greater of actual or intended loss." U.S.S.G. § 2B1.1, cmt. n. 3(A). "Actual loss" — at issue in this appeal — "means the reasonably foreseeable pecuniary harm that resulted from the offense." U.S.S.G. § 2B1.1, cmt. n. 3(A)(i). "Pecuniary harm" is "harm that is monetary or that otherwise is readily measurable in money ... [but] does not include emotional distress, harm to reputation, or other non-economic harm." U.S.S.G. § 2B1.1 cmt. n. 3(A)(iii). Harm is reasonably foreseeable if "the defendant knew or, under the circumstances, reasonably should have known, [that the harm] was a potential result of the offense." U.S.S.G. § 2B1.1, cmt. n. 3(A)(iv).
In the context of sentencing, a district court is not limited to offense conduct, but rather may consider all of the defendant's "relevant conduct" in calculating loss under § 2B1.1. U.S.S.G. § 1B1.3. Pertinent to this appeal, relevant conduct includes "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant... that occurred during the commission of the offense of conviction," U.S.S.G. § 1B1.3(a)(1)(A), and "all harm that resulted from [such] acts and omissions."
Were we confronted solely with the Mays' December 24, 2010, mail theft offense, we would have no basis to conclude that the Mays' conduct caused the USPS's expenses because the EVPO changed its delivery policy on December 20 — four days before the charged theft offense. However, the uncharged mail thefts that occurred prior to December 20, simultaneously with the possession offenses, are relevant conduct that we may consider. This conduct is relevant not only because the Mays admitted to committing the thefts in their plea agreements, but also because it provided the government the evidence it needed to prove the Mays knowingly possessed stolen mail, i.e., the Mays knew they possessed stolen mail because they stole it.
The question, then, is whether it was reasonably foreseeable that the USPS would react to their thefts by switching its parcel delivery policy to customer pick-up to ensure that its customers received their parcels. On this issue, the district court said:
The district court was not clearly erroneous in concluding that the expense the USPS incurred was a reasonably foreseeable pecuniary harm resulting from the Mays' actions. This is not a case of an isolated mail theft. Instead, each of the Mays' excursions involved numerous and widespread thefts, and each new excursion increased the likelihood that the USPS would take some action to respond to the surging "tidal wave" of customer complaints — perhaps by temporarily changing its parcel delivery procedure for the duration of the busy holiday delivery season or until the perpetrators were caught. We decline to wade into the murky waters of temporary versus permanent crime prevention measures as permissible loss, as the Mays would have us do, especially because we discern from the Sentencing Guidelines no limitation, express or implied, placing such expenditures beyond the purview of § 2B1.1.
The Mays present two arguments on appeal concerning the restitution order. First, they argue that the district court erred in ordering restitution for the USPS's expenses because they are consequential damages not permitted by the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A. The Mays also argue that the restitution order is unlawful because the USPS's expenses did not result from conduct underlying an offense of conviction. We find the latter argument persuasive and, therefore, address only that argument.
The Mays did not raise their offense of conviction argument in the district court. However, the question presented is purely one of law, requiring no further factual development. We will consider such a claim when raised for the first time on appeal. United States v. Baker, 25 F.3d 1452, 1456 (9th Cir.1994).
This court's precedents firmly hold that a court may award restitution under the MVRA only for loss that flows directly from "`the specific conduct that is the basis of the offense of conviction.'"
The district court's causation analysis for both sentencing and restitution purposes hinged on the Mays' mail thefts. But the mail theft charge set forth in Count 2 charged the Mays with mail theft only on December 24, 2010 and, as we have already noted, the December 24 mail theft could not have caused the USPS to change delivery procedures four days earlier, on December 20. Recognizing this hitch in the district court's analysis, the government asserts that the conviction on Count 1 for receipt of stolen mail supports the restitution order because it alleges that the Mays possessed stolen mail prior to December 20, 2010. What is clear both from the district court's reasoning and the facts surrounding the USPS's change in parcel delivery, however, is that mail theft — not unlawful possession — caused the USPS to change its procedures. The Mays were not convicted of mail theft that occurred prior to December 20.
The government argues United States v. Bachsian, 4 F.3d 796 (9th Cir.1993), is controlling because in Bachsian, this court rejected the defendant's argument that a conviction for possession of stolen goods cannot support a restitution order because theft of the goods, rather than possession, causes the loss. Bachsian has no application to the specific restitution issue before us. The court in Bachsian concluded that the defendant's possession of the stolen gloves resulted in loss because those gloves were the only gloves that were not recovered. Id. at 800. In other words, the possession deprived the lawful owner of the gloves. Bachsian thus deals with loss caused by possession of the stolen object and would apply to this case if we were concerned with loss resulting from the Mays' possession of the stolen mail, but that is not our issue.
For the foregoing reasons, we affirm the Mays' sentences but vacate that portion of the restitution order awarding restitution for the USPS's expenses of $69,753.