On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Criminal No. 88-00111-01.
Seitz, Sloviter and Greenberg, Circuit Judges.
Defendant, Edward Parker, appeals from the sentence imposed by the district court on October 31, 1988, following his plea of guilty on August 22, 1988 to an indictment under 18 U.S.C. § 1708, charging him with knowingly and intentionally stealing, taking and abstracting from the mail 122 pieces of mail, being first class insured parcels and packages, having a total value of approximately $22,500. He was sentenced to a custodial term of six months, to be followed by a two-year term of supervised release. The gravamen of Parker's appeal is that he only stole 45 packages with a much reduced value, so that the 6 level increase for a loss between $20,001 and $50,000 under § 2B1.1(b)(1)(G) of the sentencing guidelines was illegal.
These are the facts. Because the Post Office had received reports since March 31, 1986, of the loss of a large number of first class insured packages mailed to jewelry stores located in the Clark Building in Pittsburgh, it started an investigation. On June 17, 1988, a postal inspector placed five first class, numbered, insured parcels for delivery to jewelers in the Clark Building in a mailbag to be delivered the building on June 18, 1988, at 3:30 a.m. At a stake-out the inspectors saw the bag taken to the mailroom door on the 17th floor. Five minutes later Parker, who was employed in the building as a cleaning person, approached the mailbag and took three of the test parcels from it. He was then arrested in possession of the parcels. After being warned of his rights, he admitted that he took the parcels as they might have contained something of value and said he had been doing that for about 15 months. In fact, the government had records that 127 packages worth $23,427 had been taken.
Even before an indictment was returned, there was successful plea negotiation between Parker, through an attorney, and the government. An understanding was reached that only one charge for taking 122 packages worth $22,500 to which Parker would plead guilty would be brought. This agreement was advantageous to Parker as the government could have brought multiple charges, thus increasing his sentence exposure. Furthermore, inasmuch as he was caught in the act of stealing mail, his chances of an acquittal seemed slim. In conformity with the understanding, the single count indictment was returned against Parker on July 14, 1988.
Parker appeared in court on August 22, 1988 to plead guilty. At that time the judge told him that he was charged with stealing 122 pieces of mail worth $22,500 and Parker said he understood the charges. His attorney told the district judge of the plea agreement. The Assistant United States Attorney then explained that it had been agreed that Parker would plead guilty to one count charging the theft of 122 pieces of mail even though it appeared that 127 pieces had been taken and "many many counts" could have been filed. Parker personally confirmed that this was the understanding.
Parker also said that he understood from his attorney that he could receive six to 12 months under the sentencing guidelines. Parker then admitted taking the 122 parcels worth approximately $22,500. The Assistant United States Attorney then gave a summary of the government's evidence. He said the government would prove that numerous numbered insured parcels containing primarily jewelry items had been taken from deliveries to the Clark Building and that there were well over 100 losses of over $20,000 in value from approximately March 31, 1986 until June 1988. He described how Parker was caught in the act of stealing packages which he admitted he had been doing for 15 months. He also indicated he had a printout showing that 127 packages valued at $23,427 had been taken but the government would rely on the amounts in the indictment, 122 packages valued at $22,500.
Parker then agreed with what had been stated and said he wanted to plead guilty. But he then said that he did not take all of the packages. He explained that the mailroom door is left open and the mail is placed out front where other people could reach it. Parker said "I am not really responsible for all that mail. Some of it I will say." His attorney then indicated that the plea of guilty was being entered with his advice and that while Parker did not recollect all the packages mentioned in the indictment, in the light of his statement to the postal authorities "that he had been doing this type of activity for approximately the last 15 months, this is probably the best avenue for him." The judge then accepted the plea of guilty.
In the subsequently prepared presentence report it was stated that Parker acknowledged in an interview on August 22, 1988, that he was responsible for the theft of 40 to 45 packages over a two-year period but that other individuals could have committed some of the 122 thefts attributed to him by the government. In the report the base offense level was put at 4. See guidelines § 2B1.1(a). But there was an increase of 6 levels because the loss was between $20,001 and $50,000. See guidelines § 2B1.1(b)(1)(G). There was, however, a 2 level reduction for acceptance of responsibility, guidelines § 3E1.1(a), so that the total offense level was 8. Based on Parker's criminal history computation, the report indicated that the guidelines imprisonment range was six to 12 months, exactly in accord with Parker's understanding when he pleaded guilty.
There was an addendum to the report reflecting Parker's objections to it. Parker said that the thefts took place over a 15 month rather than two year period and involved 40 to 45 packages rather than the 122 the government claimed. The addendum indicated that Parker's attorney "requested that the Court make a factual finding as to the number of packages for which the defendant should be held responsible based on his plea of guilty." The report then indicated that Parker disputed only the number of packages taken and not the value of what he had taken. This, however, seems internally inconsistent as necessarily there would have to be some correlation between the number of packages and their value.
On October 27, 1988, the district judge made the tentative finding that Parker did knowingly steal approximately 45 packages. These findings, however, did not mention the value of what was taken.
Sentencing was on October 31, 1988. At that time Parker's attorney said that there was an objection about the number of packages. He correctly pointed out that the important issue was the value of what was taken because under guideline § 2B1.1((b)(1)(G) there would be a 6 levels increase if property valued at between $20,001 and $50,000 was involved. The attorney said that there was no way to know the value of what Parker took. The Assistant United States Attorney said that until that day there was no argument regarding value and he "would object to the amendment of the ...