United States of America v. Mark Gregory Young

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4778
MARK GREGORY YOUNG,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-97-288-CCB)
Submitted: April 25, 2000
Decided: May 16, 2000
Before LUTTIG, WILLIAMS, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
James Wyda, Federal Public Defender, Lauren E. Case, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellant. Lynne A. Battaglia, United States Attorney, Bonnie S.
Greenberg, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Mark Gregory Young was sentenced to a term of 105 months
imprisonment after he pled guilty to bank fraud, destruction of gov-
ernment property (postal vehicles), possession of stolen mail, and
possession, production, and transfer of implements used to make false
identification documents. On appeal, we found that the district court
had abused its discretion in departing upward without finding specifi-
cally that Young's theft of 6000 pieces of mail and the resulting harm
was so extraordinary that it was outside the normal run of cases
involving stolen mail. On remand, the district court made the requisite
findings and reimposed a sentence of 105 months. Young again
appeals his sentence. We grant Young's request for leave to file a pro
se supplemental brief and affirm the sentence.
The court's departure was based on U.S. Sentencing Guidelines
Manual § 2B1.3, comment. (n.4) (1997), which encourages a depar-
ture when the value of the property damaged or destroyed does not
adequately reflect the extent of the harm caused by the offense. How-
ever, the guideline applicable to Young's conviction for possession of
stolen mail included an enhancement for taking undelivered United
States mail. See U.S.S.G. § 2B1.1(b)(3). Because the fact and effect
of undelivered mail were thus considered by the Sentencing Commis-
sion, a departure on that ground could not be justified unless that fac-
tor was "present to an exceptional degree or in some other way
[made] the case different from the ordinary case where the factor is
present." Koon v. United States, 518 U.S. 81, 96 (1996).
At the resentencing hearing, the district court again departed
upward by two levels, finding that "the extensive quantity" of unde-
livered mail was "outside . . . the ordinary stolen mail case," and not-
ing the proffered testimony of the postal inspector--that he had not
seen a case with that quantity of mail in twenty-three years. (J.A. at
2

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33.) The court found that the volume of stolen mail increased the "not
purely economic harm" suffered by the victims, exemplified by two
witnesses who testified at the first sentencing, and"multiplied by the
number of people that must have been affected." (J.A. at 33-34.) We
review de novo the district court's decision that an encouraged factor
has not been adequately taken into account by the applicable guide-
line. See United States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996).
Young argues that the district court's finding is unsupported
because the court depended solely on the proffered testimony of the
postal inspector to determine that 6000 pieces of stolen mail was
unusual. However, we are persuaded that the quantity of mail stolen
and the resulting effects on the multiple victims, known and
unknown, were sufficient to justify the departure. See United States
v. Garcia, 900 F.2d 45, 49 (5th Cir. 1990) (theft of 950 pieces of first-
class mail plus unknown quantity of mail disposed of in dumpster
warranted departure because of extremely large volume of stolen
mail).
We have reviewed Young's pro se supplemental brief, in which he
challenges the departure and maintains that he was denied due process
at the first sentencing when he complained that the government had
breached the plea agreement. The second issue is not properly raised
because we considered and found to be without merit in the first
appeal his claim that the government had breached his plea agree-
ment.
We therefore affirm the sentence. We grant Young's motion for
leave to file a pro se supplemental brief. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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