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Click here for the full text of this decision FACTS:In April 2006, Awunor Ikechukwu worked for Telesis Courier Service. Part of his job was to pick up a pouch of misaddressed or misdirected mail pieces from a PNC Bank lockbox operation and take those mail pieces to the post office. After complaints about stolen and counterfeited checks, the Postal Inspection Service investigated PNC Bank’s lockbox operation. On the date of Ikechukwu’s arrest, the investigators sprayed the mail at PNC Bank with an invisible substance visible only under black light. After Ikechukwu delivered the pouch of PNC Bank mail to the post office, the investigators found that 15 pieces of mail were missing and stopped Ikechukwu. A search of the Ikechukwu”s vehicle revealed 19 checks with different payees, totaling $456,000, and the Ikechukwu”s hands illuminated under the black light, establishing that he had handled the mail inside the pouch. Ikechukwu consented to an interview and admitted to stealing the mail out of the pouch and keeping the checks in his vehicle. The investigators further found that Ikechukwu had counterfeited checks totaling $1,361,670, which were never used, and had used three checks to fraudulently draw $303,805. Therefore, the total intended loss attributed to Ikechukwu was $2,121,475. In calculating Ikechukwu’s total offense level, the district court applied a two-level enhancement under U.S. Sentencing Guideline �3B1.3 (2005). This enhancement applied “[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense.” The district court did not apply the enhancement based on Application Note 1, which defines “a position of public or private trust” as a position “characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference).” Rather, the district court applied the enhancement based on Application Note 2(A), which states, “Notwithstanding Application Note 1, or any other provision of this guideline, an adjustment under this guideline shall apply to . . . [a]n employee of the United States Postal Service who engages in the theft or destruction of undelivered United States mail.” On appeal, Ikechukwu challenged the enhancement, arguing that although he engaged in the theft of undelivered U.S. mail, he was not an employee of the U.S. Postal Service, so this enhancement could not be applied to him. HOLDING:Vacated and remanded. It is undisputed, the court stated, that the defendant was not an employee of the U.S. Postal Service. Despite recognizing this fact, the district court still applied the enhancement, finding, “[The defendant] was in the shoes of a postal employee. He was handling mail. He was doing what a postal employee does.” The district court went on to say, “[T]he Guidelines have specifically carved out an exception for postal employees, and that is to deter individuals that handle mail from destroying or stealing mail. That is the purpose of that enhancement.” The court agreed with Ikechukwu that �3B1.3 Application Note 2(A), by its terms, applied only to “employee[s] of the United States Postal Service” and therefore should not have been applied to Ikechukwu. The court further noted that the purpose of the enhancement is to deter individuals in a position of trust from abusing that position to commit a crime, and the purpose of Application Note 2(A) is to clarify that all employees of the U.S. Postal Service are, by the nature of their employment status, in a per se position of trust as related to the theft or destruction of undelivered U.S. mail. A courier such as Ikechukwu, the court stated, is not by the nature of his employment status in a per se position of trust as related to the theft or destruction of undelivered U.S. mail. Thus, the court found that to apply �3B1.3 to a non-Postal Service employee convicted of the theft or destruction of undelivered United States mail, a district court must undertake the normal “sophisticated factual determination” needed to establish that � 3B1.3 applies. OPINION:Garza, J.; Higginbotham, Barksdale and Garza, JJ.

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