PRISCILLA R. OWEN, Circuit Judge:
Defendant-Appellant Sheryl Denise Lagrone was charged in two felony counts of violating 18 U.S.C. § 641. Following her conviction, she was sentenced to two concurrent terms of 45 months of imprisonment, three years of supervised release, $20,374.76 in restitution, and two $100 special assessments. Each of Lagrone's two theft offenses involved Government property with a value less than $1,000, and she contends that 18 U.S.C. § 641 does not permit her to be convicted of more than a single felony count. We agree and accordingly vacate and remand.
Lagrone obtained postal stamps at United States Postal Offices in various locations, tendering checks with insufficient funds as payment in these transactions. She was indicted, in three counts, for willfully and knowingly stealing "a thing of value" from the United States in violation of 18 U.S.C. § 641. She pleaded guilty to two of the counts for stealing $880 of stamps in each of two post offices. The third count was dismissed. In her guilty plea, Lagrone stipulated to the facts of her offenses but reserved a dispute about the possible penalties — specifically whether she was subject to penalties for a single felony conviction or two felony convictions. The Government articulated its belief that Lagrone was subject to a maximum of 20 years of imprisonment (ten years per count), a fine not to exceed $500,000 ($250,000 per count), and special assessments of $200 ($100 per count), while Lagrone contended that the maximum penalties were limited to those for a single felony count under § 641, which would be ten years of imprisonment, a $250,000 fine, and a $100 special assessment.
The Presentence Investigation Report (PSR) determined that Lagrone had a total offense level of 8 and Criminal History Category of V, which resulted in an advisory Guidelines range of 15 to 21 months of imprisonment for each count. At sentencing, the district court adopted the findings of the PSR, but varied upward to address Lagrone's criminal history. The district court also rejected Lagrone's objection to the second felony count. The district court sentenced Lagrone to 45 months of imprisonment, and three years of supervised release for each count, to run concurrently. The court also ordered her to pay $20,374.76 in restitution and two special assessments of $100 each. Lagrone appeals her sentence.
Lagrone's sole contention in our court is that the district court erred in imposing penalties for two felony convictions under § 641. The ultimate issue is whether 18 U.S.C. § 641 authorizes the aggregation of thefts, each of which is less than $1,000 and would individually subject the defendant only to misdemeanor penalties, in order to impose felony penalties for each instance of theft. This is a question of statutory interpretation, which we review de novo.
"The first step in statutory interpretation... is to look at the plain meaning of the statutory language."
The Government contends that the statutory language allows it to charge a defendant with a violation of § 641 each time she steals something of value from the United States, with a maximum penalty of ten years' imprisonment on each count. It asserts that the only exception is when the total value of the property stolen, aggregated from all of the counts in the case, is less than $1,000, in which event the maximum penalty is one year of imprisonment on each count. The Government concludes that counts of theft that each individually involve amounts less than $1,000 may be aggregated under the statute and a felony can be charged for each count if the total, aggregated amount across all counts exceeds $1,000.
The Government argues that we resolved this issue in United States v. Reagan,
In Reagan, however, each of the counts for which the defendant was convicted exceeded $1,000;
We conclude that § 641 is unambiguous when applied to the facts before us. While it permits aggregation under the facts before us in order to charge a single felony, it does not permit charging both offenses for which Lagrone was convicted as felonies.
If we were to accept the Government's position that § 641's plain language authorizes felony penalties for each instance of theft, so long as the total of all thefts charged exceeds $1,000 in the aggregate, then the penalties applicable to certain offenses would depend on whether subsequent offenses occurred. As an example, assume an individual improperly receives monthly federal benefits of $90. Were that individual convicted of illegal receipt of eleven months of checks, she would be subject to a maximum of eleven years in prison through the eleventh month that she improperly received federal benefit checks. However, under the Government's construction, upon the receipt of the twelfth check, the possible penalties for each of the checks would be multiplied ten-fold, subjecting the individual to the potential of twelve ten-year maximum sentences, totaling a maximum of 120 years' imprisonment.
The applicable limitations period for offenses under § 641 is five years.
The Government's interpretation of § 641 permits retroactively changing the penalty for what would otherwise be misdemeanor offenses to penalties for felonies if they are charged in the same case as subsequent thefts that exceed $1,000 in the aggregate. Lagrone argues that a better interpretation of § 641 is that the statute permits the aggregation of multiple thefts in order to reach the $1,000 statutory limit and allows the Government to charge the defendant with a felony for each theft or series of thefts that exceeds $1,000 in the aggregate. Because neither of her thefts alone exceeds $1,000 and both are necessary to comprise a single series that exceeds $1,000 in the aggregate, she contends that § 641 permits her to be charged with only a single felony.
We note that Lagrone's interpretation accords with how the Government charged the offenses in Reagan. In Reagan, the defendant improperly received monthly payments for five years.
We conclude that Lagrone's interpretation reflects the plain language of § 641. Even were we unconvinced that Lagrone's view is the correct one, and
For the foregoing reasons, the sentence imposed by the district court is VACATED and this case is REMANDED to the district court for resentencing.