Thank You For Submiting Feedback!
United States Court of Appeals for the Sixth Circuit
December 1, 2020, Argued; March 3, 2021, Decided; March 3, 2021, Filed
File Name: 21a0054p.06
[***2] [*479] MURPHY, Circuit Judge. Jennifer Riccardi, a postal employee, pleaded guilty to stealing 1,505 gift cards from the mail. Most of these gift cards had an average value of about $35 for a total value of about $47,000. The Sentencing Guidelines directed the district court to increase Riccardi's guidelines range based on the amount of the "loss." U.S.S.G. § 2B1.1(b)(1). Yet § 2B1.1 does not define the word "loss." A search for its ordinary meaning might produce definitions such as "[t]he amount of something lost" [**2] or "[t]he harm or suffering caused by losing or being lost." American Heritage Dictionary of the English Language 1063 (3d ed. 1992). Perhaps, then, the word is ambiguous on the margins. Does it, for example, cover only financial harms or emotional ones too? But one definition of "loss" that you will not find in any dictionary is the rule that the district court used for Riccardi's stolen gift cards: a $500 minimum loss amount for each gift card no matter its actual value or the victim's actual harm (which, for Riccardi, amounted to a total loss amount of $752,500).
Riccardi challenges the use of this $500 minimum loss amount, which comes from the Sentencing Commission's commentary to § 2B1.1. The commentary instructs that the loss "shall be not less than $500" for each "unauthorized access device," a phrase that Riccardi concedes covers stolen gift cards. U.S.S.G. § 2B1.1 cmt. n.3(F)(i). ] But guidelines commentary may only interpret, not add to, the guidelines themselves. United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (per [*480] curiam). And even if there is some ambiguity in § 2B1.1's use of the word "loss," the commentary's bright-line rule requiring a $500 loss amount for every gift card does not fall "within the zone of ambiguity" that exists. Kisor v. Wilkie, 139 S. Ct. 2400, 2416, 204 L. Ed. 2d 841 (2019). So this bright-line [**3] rule cannot be considered a reasonable interpretation of—as opposed to an improper expansion beyond—§ 2B1.1's text. We thus reverse Riccardi's sentence and remand for resentencing without the use of the commentary's automatic $500 minimum loss amount for every gift card.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
989 F.3d 476 *; 2021 U.S. App. LEXIS 6163 **; 2021 FED App. 0054P (6th Cir.) ***; 2021 WL 799727
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JENNIFER RICCARDI, Defendant-Appellant.
Prior History: [**1] Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:18-cr-00740-1—John R. Adams, District Judge.
United States v. Dennis, 2020 U.S. Dist. LEXIS 91163, 2020 WL 2733753 (N.D. Ohio, May 26, 2020)
guidelines, gift card, sentence, deference, amount of loss, courts, cases, stolen, district court, restitution, Dictionary, ambiguity, agency's interpretation, calculating, unauthorized access, legislative rule, plea agreement, rulemaking, maximum, argues, card, mail, per curiam, notice-and-comment, analogy, challenges, waived, sentencing guidelines, en banc, enhancements
Criminal Law & Procedure, Sentencing, Sentencing Guidelines, Departures From Guidelines, Upward Departures, Property Damage, Standards of Review, De Novo Review, Conclusions of Law, Credit Card Fraud, Expired & Revoked Card & Number, Elements, Fraud Against the Government, False Claims, Penalties, Theft & Related Offenses, Identity Theft, False Statements, Governments, Legislation, Interpretation, Reviewability, Preservation for Review, Requirements, Administrative Law, Judicial Review, Rule Interpretation, Agency Rulemaking, Notice & Comment Requirements, Imposition of Sentence, Factors, Formal Rulemaking, Informal Rulemaking, State Proceedings, Evidence, Burdens of Proof, Burdens of Production, Appeals, Clear Error Review, Questions of Law, Entry of Pleas, Guilty Pleas, Allocution & Colloquy, Allocution & Colloquy, Waiver of Defenses, Preliminary Proceedings, Plea Bargaining Process, Enforcement of Plea Agreements, Appeals, Restitution, Waiver, Triggers of Waivers, Appealability