United States v. May

Under the U.S. Sentencing Guidelines, a court may consider damages that arise as a result of prevention measures directed at an ongoing crime spree. Under the Mandatory Victim's Restitution Act, where a convicted act occurred after damages arose, the convicted act cannot be the basis for restitution of the damages.

Defendants Jason and Jolynn May engaged in a series of mail thefts and they pled guilty to the charges of receipt of stolen mail and mail theft. The district court concluded that under the United States Sentencing Guidelines (“U.S.S.G”) USPS’s expenses should be included as a loss. Also the district court concluded that those expenses, for the purposes of restitution, be considered a loss and ordered the Mays to pay $69,778 in restitution. One issue on appeal is the “actual loss” meaning the reasonably foreseeable pecuniary harm that resulted from the offense under the U.S.S.G. The next issue is whether USPS’s reaction to the thefts by switching its parcel delivery was reasonably foreseeable. The Ninth Circuit noted that it was relevant for the district court to consider the uncharged mail thefts that occurred before USPS changed its delivery policy and that the expenses were reasonably foreseeable pecuniary harm resulting from the defendant’s numerous thefts. The Ninth Circuit also noted that Bachsian is not at issue in this case because the court was not concerned with the loss resulting from the Mays’ possession of the stolen mail and Bachsian deals with loss resulting from possession of stolen objects. The Ninth Circuit held that the restitution for the expenses was improperly ordered by the district court. Also the Ninth Circuit concluded that mail theft, not unlawful possession, caused the USPS’s delivery procedure change and the defendants’ pre-change possession of the mail did not support a restitution order. The Ninth Circuit affirmed the Mays’ sentences and vacated a portion of the restitution award for USPS’s expenses. AFFIRMED in part, VACATED in part.