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    United States v. Pickeral, 4th Cir. (2000)

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    1) Terry Allen Pickeral pled guilty to four counts of presenting altered postal money orders for payment. He was sentenced to 21 months in prison and 3 years of supervised release. 2) The court found that Pickeral intended a loss amount of over $2000 based on the total value of the four altered money orders, justifying a sentencing enhancement. It also found he engaged in more than minimal planning by using multiple post offices. 3) However, the court's restitution order was vacated and remanded because the proven actual loss to the Postal Service was only $1220, not the $1222 originally ordered. The case was remanded solely to modify the restitution amount.

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    United States v. Pickeral, 4th Cir. (2000)

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    1) Terry Allen Pickeral pled guilty to four counts of presenting altered postal money orders for payment. He was sentenced to 21 months in prison and 3 years of supervised release. 2) The court found that Pickeral intended a loss amount of over $2000 based on the total value of the four altered money orders, justifying a sentencing enhancement. It also found he engaged in more than minimal planning by using multiple post offices. 3) However, the court's restitution order was vacated and remanded because the proven actual loss to the Postal Service was only $1220, not the $1222 originally ordered. The case was remanded solely to modify the restitution amount.

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    Filed: 2000-11-14 Precedential Status: Non-Precedential Docket: 00-4440

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    1) Terry Allen Pickeral pled guilty to four counts of presenting altered postal money orders for payment. He was sentenced to 21 months in prison and 3 years of supervised release. 2) The court found that Pickeral intended a loss amount of over $2000 based on the total value of the four altered money orders, justifying a sentencing enhancement. It also found he engaged in more than minimal planning by using multiple post offices. 3) However, the court's restitution order was vacated and remanded because the proven actual loss to the Postal Service was only $1220, not the $1222 originally ordered. The case was remanded solely to modify the restitution amount.

    Copyright:

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    22 views5 pages

    United States v. Pickeral, 4th Cir. (2000)

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    1) Terry Allen Pickeral pled guilty to four counts of presenting altered postal money orders for payment. He was sentenced to 21 months in prison and 3 years of supervised release. 2) The court found that Pickeral intended a loss amount of over $2000 based on the total value of the four altered money orders, justifying a sentencing enhancement. It also found he engaged in more than minimal planning by using multiple post offices. 3) However, the court's restitution order was vacated and remanded because the proven actual loss to the Postal Service was only $1220, not the $1222 originally ordered. The case was remanded solely to modify the restitution amount.

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    of 5

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    TERRY ALLEN PICKERAL,
    Defendant-Appellant.

    No. 00-4440

    Appeal from the United States District Court


    for the Western District of Virginia, at Roanoke.
    Jackson L. Kiser, Senior District Judge.
    (CR-99-110)
    Submitted: October 24, 2000
    Decided: November 14, 2000
    Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.

    Affirmed in part, vacated in part, and remanded by unpublished per


    curiam opinion.

    COUNSEL
    Randy V. Cargill, MAGEE, FOSTER, GOLDSTEIN & SAYERS,
    P.C., Roanoke, Virginia, for Appellant. Robert P. Crouch, Jr., United
    States Attorney, Craig J. Jacobsen, Assistant United States Attorney,
    Roanoke, Virginia, for Appellee.

    UNITED STATES v. PICKERAL

    Unpublished opinions are not binding precedent in this circuit. See


    Local Rule 36(c).

    OPINION
    PER CURIAM:
    Terry Allen Pickeral pled guilty to four counts of presenting an
    altered postal money order for payment, see 18 U.S.C. 500 (1994),
    and was sentenced to twenty-one months imprisonment and three
    years of supervised release. He challenges his sentence, arguing that
    the district court erred in determining that the loss was more than
    $2000, see U.S. Sentencing Guidelines Manual 2F1.1 (1998), and
    in ordering him to pay $1222 in restitution, and clearly erred in determining that he engaged in more than minimal planning. See USSG
    2F1.1(b)(2)(A). We affirm in part, vacate in part, and remand.
    On November 29, December 1, and December 3, 1999, Pickeral
    bought four postal money orders, each worth one dollar, at four different post offices in western Virginia. He altered the amount of each
    money order with a ball point pen, and presented each money order
    for payment at a different post office. In all, he used eight post offices
    in seven cities. Pickeral was successful with two of the altered money
    orders, receiving $651 and $571. He failed to receive payment for the
    remaining money orders, altered to show amounts of $571 and $671.
    The total amount of all four altered money orders was $2464. Using
    this amount, the district court added a one-level enhancement for a
    loss of over $2000. See USSG 2F1.1(b)(1)(B).
    On appeal, Pickeral raises two legal questions concerning the
    amount of loss. We review the district courts legal interpretation of
    the term "loss" de novo. See United States v. Loayza, 107 F.3d 257,
    265 (4th Cir. 1997). Pickeral first contends that he should be accountable only for the amount of the two money orders he cashed on
    November 29 and December 1, and the one he presented unsuccessfully on December 3, less two dollarsa total of $1891. He argues
    that he did not intend a greater loss because, had he successfully
    cashed the first money order he presented for $571 on December 1,

    UNITED STATES v. PICKERAL

    he would not have presented a second money order for the same
    amount on the same day.
    Application Note 8 to 2F1.1 states:
    As in theft cases, loss is the value of the money, property,
    or services unlawfully taken . . . . Consistent with the provisions of 2X1.1 (Attempt, Solicitation, or Conspiracy), if
    an intended loss that the defendant was attempting to inflict
    can be determined, this figure will be used if it is greater
    than the actual loss.
    The flaw in Pickerals argument is that each presentation of an
    altered money order constitutes a separate offense. See United States
    v. Jacek, 298 F.2d 429, 429 (3d Cir. 1962) (finding that forging ten
    separate money orders constituted ten separate offenses). Pickeral in
    fact pled guilty to four separate offenses. Each was a completed
    offense, regardless of whether he obtained the money he sought as a
    result of presenting the altered money order. For sentencing purposes,
    the loss resulting from a completed offense includes the intended loss.
    See United States v. Williams, 81 F.3d 1321, 1328 (4th Cir. 1996).
    Pickeral offered no evidence that he did not intend to obtain more
    than $571 on December 1 or that, had he succeeded in obtaining $571
    with the first altered money order he presented on December 1, he
    would not have presented the second money order. Pickerals argument was based entirely on supposition and the district court did not
    err in finding that he was responsible for the loss he intended to inflict
    each time he presented an altered money order.*
    Pickeral also contests the district courts order that he pay restitution of $1222 to the Postal Service under 18 U.S.C.A. 3663A (West
    2000). He argues that restitution should be no more than $1220. On
    this point, Pickeral is correct, because the governments actual loss
    did not total more than $1220. Pickeral paid two dollars for two
    *Pickeral also maintains that the district court should have deducted
    from the amount of loss the two dollars he spent to obtain the money
    orders which he succeeded in cashing. Because reducing the amount of
    loss by several dollars would not affect Pickerals offense level, we find
    it unnecessary to reach this issue.

    UNITED STATES v. PICKERAL

    money orders which were each worth one dollar. The government
    paid him $651 and $571, thus losing $650 and $570, respectively, on
    the two transactions. We note that Pickeral did not specifically contest
    the recommended amount of restitution at sentencing, although he did
    object to the probation officers recommendation that he pay restitution of $1222. The district court adopted the probation officers recommendation without making any independent finding concerning
    the amount of restitution Pickeral owed. Under 18 U.S.C.A. 3664(e)
    (West 2000), the government has the burden of demonstrating the
    amount of loss sustained by the victim, and the district court has the
    responsibility of resolving any dispute as to the amount of restitution.
    Neither the probation officer nor the government demonstrated that
    Pickeral owed $1222 in response to his objection, and the district
    court did not resolve the dispute over the amount. Normally, a remand
    to the district court would be necessary for a determination of the correct amount of restitution. However, because the disputed amount is
    so small, we are inclined to give Pickeral the benefit of any doubt.
    Accordingly, we vacate this portion of the judgment and remand the
    case solely for modification of the restitution order to require restitution of $1220.
    Finally, Pickeral disputes the enhancement for more than minimal
    planning. Under 2F1.1(b)(2)(A), a two-level enhancement is made
    if the offense involved more than minimal planning. Application Note
    2 explains that the term is defined in the commentary to USSG
    1B1.1. Application Note 1(f) defines more than minimal planning
    as "more planning than is typical for commission of the offense in a
    simple form," and explains that it "exists if significant affirmative
    steps were taken to conceal the offense," apart from conduct that constitutes obstruction of justice. Further, more than minimal planning "is
    deemed present in any case involving repeated acts over a period of
    time, unless it is clear that each instance is purely opportune." Id. The
    district courts factual determination that more than minimal planning
    was present is reviewed for clear error. See United States v. Pearce,
    65 F.3d 22,26 (4th Cir. 1995).
    The district court determined that Pickeral had shown more than
    minimal planning by using different post offices in different towns
    over a wide area. In his argument on appeal, Pickeral focuses on the
    simple method he used to alter each money orderwriting in a larger

    UNITED STATES v. PICKERAL

    amount with a ballpoint pen. While that part of his planning was concededly simple, his use of eight different post offices in different
    towns showed forethought and a definite strategy for concealing the
    offense. Consequently, the district court did not clearly err in finding
    that Pickeral used more than minimal planning and enhancing his
    offense level.
    We therefore vacate the portion of the judgment that orders Pickeral to pay $1222 in restitution and remand for modification of the
    restitution order to require payment of $1220. We affirm the sentence
    in all other respects. We dispense with oral argument because the
    facts and legal contentions are adequately presented in the materials
    before the court and argument would not aid the decisional process.
    AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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