United States v. Roberson

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 15, 2003
• Docket: 03-10116
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 15, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _____________________ Clerk

No. 03-10116 _____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL C. ROBERSON,

Defendant - Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (USDC No. 4:02-CR-182-1-A)

Before GARWOOD, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Defendant Michael C. Roberson, a former employee of the United

States Post Office, pleaded guilty to a one-count information that

charged him with stealing the cash proceeds of retail postage sales

and making false and fictitious entries regarding those sales in

the records of the United States Postal Service in violation of 18

U.S.C. § 2073. On appeal, Roberson challenges the sentence imposed

by the district court for his offense, arguing that the district

court erred when it estimated the loss attributable to his crime to

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. be at least $28,582.24 and increased his offense level by four

points. Specifically, Roberson argues that the loss estimation is

erroneous because it is based on unsubstantiated assumptions about

specific transactions that Roberson voided under unusual

circumstances, and on unsubstantiated assumptions about the

frequency with which Roberson used various illegal schemes to

cover-up his thefts.

A district court's calculation of loss attributable to a

defendant's scheme to steal or defraud is a factual finding that

this court reviews for clear error. United States v. Caldwell, 302

F.3d 399, 418 (5th Cir. 2002); United States v. Robichaux, 995 F.2d

565, 571 (5th Cir. 1993). For purposes of sentencing, “the loss

need not be determined with precision.” United States v. Hammond,

201 F.3d 346, 350 (5th Cir. 1999) (quoting United States Sentencing

Commission, Guidelines Manual, § 2B1.1, comment (n.3) (Nov. 1998)).

“The court need only make a reasonable estimate of the loss, given

the available information.” Id.

In this case, after careful consideration of the briefs and

the record, we are not persuaded that the district court committed

any prejudicial error when it estimated the loss attributable to

Roberson’s crimes to be at least $28,582.24. Accordingly, we

affirm the sentence imposed by the district court.

As noted above, Roberson pleaded guilty to a one-count

information that charged him with making false and fictitious

entries regarding retail postage sales in the records of the United

2 States Postal Service in violation of 18 U.S.C. § 2073. By

pleading guilty to the information, Roberson admitted that, from

approximately September 24, 1999, until June 14, 2001, he

deliberately (1) voided legitimate sales of postage, (2) failed to

report sales of postage, and (3) mishandled and mislabeled cash

transactions as check transactions in order to cover-up his theft

of cash proceeds from those sales. In addition, at sentencing,

the government established that the Mansfield, Texas Post Office

where Roberson worked lost an approximate total of $41,000 in

retail inventory and/or sales proceeds during the time when

Roberson admittedly embezzled cash from retail postage sales.

Because Roberson was the only person inculpated in the

investigation of the Mansfield Post Office’s retail losses, the

district court reasonably could have estimated that all of the Post

Office’s retail losses were attributable to Roberson’s illegal

schemes. Because the district court could have reasonably

estimated the loss attributable to Roberson’s crime to be

approximately $41,000, there can be no prejudicial error associated

with an estimate that is less than that amount.

In order to show a prejudicial clear error in this case,

Roberson would have to show that it was clearly erroneous for the

district court to estimate his loss to be more than $10,000 (the

minimum amount of loss necessary to trigger the four-point increase

in offense level that Roberson actually received). See U.S.S.G. §

§ 2B1.1(b)(1)(C). Although Roberson has challenged the reliability

3 of the method used by his probation officer in his presentence

report and by the district court to calculate the exact figure of

$28,582.24, Roberson has produced no evidence to show that the loss

attributable to his crimes was only $10,000 or less. Thus, while

we do not embrace the district court’s methodology in computing the

total loss over the period of twenty-one months, we are persuaded

that based upon the entire record, there was no clear error in

estimating the loss attributable to Roberson’s crime to be more

than $10,000 and less than $41,000.

Accordingly we AFFIRM the sentence of the district court.

AFFIRMED.