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Date: 09-25-2021
Case Style:
United States of America v. Jennifer Riccardi
Case Number: 19-4232
Judge: Eric Murphy.
Court: UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Plaintiff's Attorney: Laura McMullen Ford, UNITED STATES ATTORNEY’S OFFICE
Defendant's Attorney:
Description:
Cincinnati, Ohio - Criminal defense lawyer represented defendant with stealing 1,505 gift cards from the mail charge.
In September 2017, an Ohioan mailed a $25 Starbucks gift card from the City of Mentor
in northeast Ohio. The gift card never reached its destination at an address in nearby Parma.
The sender complained to the U.S. Postal Service, which opened an investigation. Investigators
learned that supervisors at a Cleveland distribution center had been finding lots of opened mail in
the processing area. The investigation led to an employee at the center: Jennifer Riccardi. When
confronted, Riccardi admitted that she had been stealing mail that might contain cash or gift
cards. A search of Riccardi’s home revealed that she had been doing so for quite some time.
It uncovered over 100 pieces of mail that she had taken just that day, $42,102 in cash, and
1,505 gift cards. The gift cards were laid out on the floor of Riccardi’s home organized by the
230 or so merchants at which they could be redeemed.
Riccardi pleaded guilty to three counts: possessing stolen mail in violation of 18 U.S.C.
§ 1708; stealing mail as a postal employee in violation of 18 U.S.C. § 1709; and possessing 15 or
more “unauthorized access devices” in violation of 18 U.S.C. § 1029(a)(3). In her plea
agreement, Riccardi confessed that she had been stealing mail for a year. When sorting mail, she
would set aside items that might contain cash or gift cards (such as colorful greeting cards) and
sneak these items out of the distribution center during her break or at the end of her shift.
Riccardi would use the stolen gift cards herself or sell them to others. Of the 1,505 gift cards
found at her home, 1,322 had face values totaling about $47,000 for an average of about
$35 each. The government did not identify the values of the remaining 183 gift cards.
Riccardi’s presentence report determined her guidelines range using U.S.S.G. § 2B1.1.
When measuring the loss for the 1,505 gift cards, the report applied the $500 minimum loss
amount from § 2B1.1’s commentary, id. § 2B1.1 cmt. n.3(F)(i), resulting in a total loss of
$752,500. The presentence report thus bumped Riccardi up to a loss category of between
$550,000 and $1,500,000 and increased her offense level by 14. This enhancement resulted in a
guidelines range of 46 to 57 months’ imprisonment.
At sentencing, Riccardi objected to the use of this $500 minimum loss amount because
most of the stolen gift cards were worth a fraction of that amount. The district court overruled
No. 19-4232 United States v. Riccardi Page 4
her objection. After considering the sentencing factors, it imposed a sentence near the top of the
guidelines range: 56 months’ imprisonment. The court also ordered Riccardi to pay $89,102 in
restitution, an amount that included the $42,102 in cash found at her home and the value of the
gift cards ($47,000). The court ordered this restitution even though Riccardi had already
forfeited the cash and gift cards to the government. It reasoned that forfeiture and restitution
were distinct obligations.
Riccardi raises two challenges on appeal. She argues that the district court should not
have applied the $500 minimum loss amount to each of the gift cards and that it should have
offset her restitution obligation with the amounts that she forfeited. We address each argument
in turn.
II. “Loss” Amount
The guideline for theft offenses—U.S.S.G. § 2B1.1—starts with a base offense level of 6.
Id. § 2B1.1(a)(2). It then lists a variety of offense characteristics that can affect this offense
level, ranging from the number of victims involved, id. § 2B1.1(b)(2)(A)(i), to the possession of
a firearm, id. § 2B1.1(b)(16)(B). As relevant here, courts must “increase the offense level”
in incremental amounts based on the “loss” from the offense. Id. § 2B1.1(b)(1). If the loss is
“[m]ore than $6,500,” § 2B1.1 instructs courts to add 2 to the offense level.
Id. § 2B1.1(b)(1)(B). If the loss is “[m]ore than $15,000,” it instructs them to add 4.
Id. § 2B1.1(b)(1)(C). The guideline continues in this fashion up to a loss amount of “[m]ore
than $550,000,000,” for which it directs courts to increase the offense level by 30.
Id. § 2B1.1(b)(1)(P).
The government bears the burden to prove the amount of the loss by a preponderance of
the evidence. See, e.g., United States v. Jones, 641 F.3d 706, 712 (6th Cir. 2011); United States
v. Rothwell, 387 F.3d 579, 582 (6th Cir. 2004). We treat the district court’s “determination of
the amount of loss” as a factual finding and thus review it under a deferential clear-error
standard. United States v. Warshak, 631 F.3d 266, 328 (6th Cir. 2010). But we review de novo
the district court’s “methodology for calculating” the loss and its interpretation of the guidelines.
Id.; United States v. Thomas, 933 F.3d 605, 608 (6th Cir. 2019). A misinterpretation of a
No. 19-4232 United States v. Riccardi Page 5
guideline can result in a procedurally unreasonable sentence. See, e.g., United States v.
Stubblefield, 682 F.3d 502, 510 (6th Cir. 2012); cf. Rosales-Mireles v. United States, 138 S. Ct.
1897, 1907–08 (2018).
Here, the government did not attempt to meet its burden to prove the loss from Riccardi’s
theft by relying on factual evidence about the total amount that Riccardi stole or the total harm
that her victims suffered. Instead, the government sought to meet its burden by relying on a legal
rule that treats the “loss” for each of the 1,505 gift cards as $500 even though most of the gift
cards had values averaging about $35. Riccardi raises two challenges to the use of this
$500 mandatory minimum. She first argues that the district court misread § 2B1.1’s commentary
by applying the $500 minimum to the gift cards that had face values below that amount. Even if
the $500 minimum applied, Riccardi next argues that the commentary’s mandatory minimum
conflicts with § 2B1.1’s text. We review both legal arguments de novo. See Warshak, 631 F.3d
at 328.
A
Riccardi initially claims that the district court wrongly applied the $500 minimum loss
amount under the plain language of § 2B1.1’s commentary. She misreads the commentary.
Although § 2B1.1 directs district courts to increase the offense level based on the amount
of the “loss,” the guideline itself leaves this critical word undefined. U.S.S.G. § 2B1.1(b)(1).
The Sentencing Commission instead added guidance over how to determine the “loss” in
commentary accompanying § 2B1.1. Application Note 3 provides a detailed code for “the
determination of loss under subsection (b)(1).” Id. § 2B1.1 cmt. n.3. This application note sets a
general rule that “loss” means “the greater of actual loss or intended loss.” Id. § 2B1.1 cmt.
n.3(A). It defines “actual loss” to mean “the reasonably foreseeable pecuniary harm that resulted
from the offense” and “intended loss” to mean “the pecuniary harm that the defendant purposely
sought to inflict[.]” Id. § 2B1.1 cmt. n.3(A)(i)–(ii). Yet Application Note 3 later orders courts to
use “special rules” “to assist in determining loss” in specific types of cases, including those
involving “unauthorized access devices.” Id. § 2B1.1 cmt. n.3(F). It states: “In a case involving
any . . . unauthorized access device, loss includes any unauthorized charges made with
No. 19-4232 United States v. Riccardi Page 6
the . . . unauthorized access device and shall be not less than $500 per access device.” Id.
§ 2B1.1 cmt. n.3(F)(i).
Application Note 3(F)(i)’s special rule applies here. This rule gives “unauthorized access
device” the definition from 18 U.S.C. § 1029(e)(3). Id. § 2B1.1 cmt. nn.3(F)(i), 10(A). Section
1029(e) defines “unauthorized access device” as a “stolen” access device, and it defines “access
device” as “any card” “or other means of account access that can be used” “to obtain money,
goods, services, or any other thing of value[.]” 18 U.S.C. § 1029(e)(1), (3). Critically, Riccardi
admitted in her plea agreement that the gift cards she stole were “unauthorized access devices”
under § 1029(e). Cf. United States v. Truong, 587 F.3d 1049, 1051–52 (9th Cir. 2009) (per
curiam). So we need not consider that issue. And although most of the stolen gift cards had face
values below $500, Application Note 3(F)(i) instructs courts that the loss “shall be not less than
$500 per” unauthorized access device. U.S.S.G. § 2B1.1 cmt. n.3(F)(i). The imperative “shall”
signals a duty to impose this $500 minimum loss amount, no matter the actual loss amount. See
Babb v. Wilkie, 140 S. Ct. 1168, 1173 (2020); SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1354
(2018). Because Riccardi admitted to stealing 1,505 gift cards, her loss amount could not be less
than $752,500 (1,505 times $500) under Application Note 3.
Riccardi counters that another part of Application Note 3 tells courts to calculate the loss
based on all available information, including the “fair market value of the property” stolen.
U.S.S.G. § 2B1.1 cmt. n.3(C)(i). Because Riccardi and the government agree on the value of
most of the gift cards, she argues that this portion of Application Note 3 should control over the
$500 minimum. This contention has things backwards. The specific governs the general in the
interpretation of a legal text. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S.
639, 645 (2012). Because Application Note 3(F)(i) adopts a “special rule” (including the
$500 minimum) for access devices, it trumps the general framework for other types of property.
Our precedent has repeatedly made this point in response to arguments seeking to sidestep this
$500 minimum. See United States v. Moon, 808 F.3d 1085, 1091 (6th Cir. 2015); United States
v. Lyles, 506 F. App’x 440, 445 (6th Cir. 2012); United States v. Gilmore, 431 F. App’x 428,
430–31 (6th Cir. 2011).
No. 19-4232 United States v. Riccardi Page 7
Riccardi next argues that the purpose behind this $500 minimum does not fit gift cards.
Commentary to the original § 2B1.1 imposed a minimum loss amount of $100 per card only for
stolen credit cards. U.S.S.G. § 2B1.1 cmt. n.4 (1987). In 1998, Congress told the Commission
to review and amend the guidelines “to provide an appropriate penalty for offenses involving the
cloning of wireless telephones[.]” Wireless Telephone Protection Act, Pub. L. No. 105-172,
§ 2(e)(1), 112 Stat. 53, 55 (1998). A report from this review suggested that the average loss per
stolen credit card was over $1,000 and that the average loss per cloned phone was around $800.
Econ. Crimes Pol’y Team, U.S. Sent’g Comm’n, Cellular Phone Cloning Final Report, at 27 &
n.49 (Jan. 25, 2000). This information led the Commission to increase to $500 the
commentary’s minimum loss amount for all access devices, not just credit cards. 65 Fed. Reg.
26,880, 26,895 (May 9, 2000); U.S.S.G. §§ 2B1.1 cmt. n.2, 2F1.1 cmt. n.17 (2000). Riccardi
argues that the Commission had cloned phones in mind when making these changes and that the
average loss for a stolen gift card is likely well below $500.
Whether or not Riccardi correctly describes this commentary’s background, the alleged
purpose does not change things. Riccardi has conceded that gift cards are “access devices,” and
the commentary requires a minimum loss of “$500 per access device.” U.S.S.G. § 2B1.1 cmt.
n.3(F)(i). So “even the most formidable argument concerning the [commentary’s] purposes
[cannot] overcome the clarity we find in [its] text.” Kloeckner v. Solis, 568 U.S. 41, 55 n.4
(2012); see RadLAX, 566 U.S. at 649.
Riccardi also argues that it would be “unreasonable” to apply this $500 minimum in cases
in which the court knows that the actual value of a stolen gift card falls below $500. Yet this
“reasonableness” argument does not implicate the proper reading of Application Note 3(F)(i) and
so does not belong in Riccardi’s procedural-reasonableness challenge. See Stubblefield,
682 F.3d at 510. (No interpretive rule allows us to depart from the plain text when we find it
“unreasonable.”) Rather, Riccardi’s argument is a disguised substantive-reasonableness
challenge to her sentence under the sentencing factors in 18 U.S.C. § 3553(a). See, e.g., Moon,
808 F.3d at 1092–93. That is, Riccardi’s argument “goes to the [district] court’s authority to
vary up or down from the guidelines range, not to the meaning of the guidelines.” United States
v. Kozerski, 969 F.3d 310, 314 (6th Cir. 2020); cf. United States v. Murphy, 815 F. App’x 918,
No. 19-4232 United States v. Riccardi Page 8
922 (6th Cir. 2020). But Riccardi waived any substantive-reasonableness challenge in her plea
agreement.
B
That does not end matters. For whatever reason, the Commission opted to place its $500
minimum in § 2B1.1’s commentary, not in § 2B1.1. So Riccardi alternatively asserts that the
$500 minimum conflicts with § 2B1.1. We agree. Commentary may only interpret the
guideline. And a $500 mandatory minimum cannot be described as an interpretation of the word
“loss.” Rather, it is a substantive legislative rule that belongs in the guideline itself to have force.
1
We start with the basic differences between the guidelines and the commentary. The
Sentencing Reform Act of 1984, Pub. L. 98-473, Title II, ch. II, 98 Stat. 1987, tasked the
Commission with creating “guidelines” that contain sentencing ranges for various categories of
offenses. 28 U.S.C. § 994(a)(1), (b)(1); Stinson v. United States, 508 U.S. 36, 40–41 (1993).
These administratively adopted guidelines significantly affected individual liberty because
Congress required district courts to follow them when choosing the length of a defendant’s
prison term. 18 U.S.C. § 3553(b)(1); United States v. Havis, 927 F.3d 382, 385–86 (6th Cir.
2019) (en banc) (per curiam). Congress thus included several procedural safeguards to act as a
check on the sentencing rules that the Commission put in the guidelines. Congress required the
Commission to submit the original guidelines for its review and to give it six months to review
all amendments. See Sentencing Reform Act, § 235(a)(1), 98 Stat. at 2031–32; 28 U.S.C.
§ 994(p). It also required the amendments to go through notice-and-comment rulemaking.
28 U.S.C. § 994(x). And while the guidelines have been only advisory since United States v.
Booker, 543 U.S. 220 (2005), they still significantly affect individual liberty because a court
must use them as the initial benchmark for a proper sentence. Havis, 927 F.3d at 385.
Since the beginning, the Commission has also included “application notes” in
“commentary” that accompanies the guidelines. See, e.g., U.S.S.G. § 2B1.1 cmt. nn.1–8 (1987).
An original guideline explained that this “commentary” “may serve a number of purposes.” Id.
§ 1B1.7. Among other things, “it may interpret the guideline or explain how it is to be applied.”
No. 19-4232 United States v. Riccardi Page 9
Id. Yet the Sentencing Reform Act did not mention the “commentary,” and later amendments
have made only passing reference to it. Sentencing Reform Act, 98 Stat. at 1987–2040; Stinson,
508 U.S. at 41 (citing 18 U.S.C. § 3553(b)). To amend the commentary, then, the Commission
need not follow the same procedures that govern changes to the substantive rules in the
guidelines themselves (congressional review and notice-and-comment rulemaking). Havis,
927 F.3d at 386. That fact led some circuit courts to hold originally that they were not bound by
the commentary’s interpretation of the guidelines. See Stinson, 508 U.S. at 39–40 & 40 n.2.
The Supreme Court rejected this view in Stinson. Analogizing to administrative law, the
Court viewed the guidelines as the “equivalent of legislative rules adopted by federal agencies.”
Id. at 45. And it viewed the commentary as “akin to an agency’s interpretation of its own
legislative rules.” Id. It thus found that the commentary deserved the deference given to an
agency’s interpretation of its regulations—what was then known as Seminole Rock deference but
now goes by Auer deference. Id.; see Auer v. Robbins, 519 U.S. 452, 461 (1997); Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945). Applying Auer’s test, Stinson held that
the commentary’s interpretation of a guideline “must be given ‘controlling weight unless it is
plainly erroneous or inconsistent with the” guideline. 508 U.S. at 38 (quoting Seminole Rock,
325 U.S. at 414). Stinson added that the Commission could effectively amend a guideline by
amending the commentary so long as “the guideline which the commentary interprets will bear
the [amended] construction.” Id. at 46.
On its face, Stinson’s plain-error test seemed to require courts to give great deference to
the commentary. By way of analogy, the plain-error test that applies to unpreserved arguments
on appeal requires a legal error to “be clear or obvious, rather than subject to reasonable
dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009). Unsurprisingly, then, we have
previously been quick to give “controlling weight” to the commentary without asking whether a
guideline could bear the construction that the commentary gave it. See, e.g., United States v.
Ednie, 707 F. App’x 366, 371–72 (6th Cir. 2017); United States v. Jarman, 144 F.3d 912, 914
(6th Cir. 1998). Perhaps for this reason, defendants have not previously “challenge[d] the
general validity” of the $500 minimum loss amount at issue here. Gilmore, 431 F. App’x at 430;
see Moon, 808 F.3d at 1091.
No. 19-4232 United States v. Riccardi Page 10
Recently, however, the Supreme Court clarified Auer’s narrow scope in the related
context of an agency’s interpretation of its regulations. See Kisor v. Wilkie, 139 S. Ct. 2400,
2414–18 (2019). Kisor acknowledged that the Court’s “classic” plain-error phrasing of Auer’s
test “suggest[ed] a caricature of the doctrine, in which deference is ‘reflexive.’” Id. at 2415
(citation omitted). Yet Kisor cautioned that a court should not reflexively defer to an agency’s
interpretation. Before doing so, a court must find that the regulation is “genuinely ambiguous,
even after [the] court has resorted to all the standard tools of interpretation” to eliminate that
ambiguity. Id. at 2414. The agency’s interpretation also “must come within the zone of
ambiguity the court has identified after employing all its interpretive tools.” Id. at 2416.
Should Kisor affect our approach to the commentary? We think so for both a simple
reason and a more complicated one. As a simple matter, Stinson analogized to agency
interpretations of regulations when adopting Seminole Rock’s plain-error test for the
commentary. 508 U.S. at 45. Stinson thus told courts to follow basic administrative-law
concepts despite Congress’s decision to locate the relevant agency (the Commission) in the
judicial branch rather than the executive branch. See id.; cf. Mistretta v. United States, 488 U.S.
361, 384–85 (1989). So Kisor’s clarification of the plain-error test applies just as much to
Stinson (and the Commission’s guidelines) as it does to Auer (and an agency’s regulations).
Indeed, Kisor itself cited Stinson as a decision applying Seminole Rock deference before Auer.
Kisor, 139 S. Ct. at 2411 n.3.
The more complex reason follows from Kisor’s response to a notice-and-comment
concern raised by the challenger in that case. When asking the Court to overrule Auer, the
challenger argued that Auer allowed an agency to freely change a legislative rule (a change that
otherwise requires notice-and-comment rulemaking) simply by changing its interpretation of the
rule without using that type of rulemaking. Id. at 2420. Kisor rejected the challenger’s
premise—that an agency could willy-nilly change a legislative rule simply by changing its
interpretation. Why? Precisely because of the limits that Kisor imposed: Before deferring to the
changed reading of the rule, a court must “first decide whether the rule is clear; if it is not,
whether the agency’s reading falls within its zone of ambiguity; and even if the reading does so,
whether it should receive deference.” Id. In other words, Kisor’s limitations on Auer deference
No. 19-4232 United States v. Riccardi Page 11
restrict an agency’s power to adopt a new legislative rule under the guise of reinterpreting an old
one.
The same concern applies here, so Kisor’s response should too. See Havis, 927 F.3d at
386. Only the guidelines (not the commentary) must go through notice-and-comment
rulemaking. 28 U.S.C. § 994(x). So if the Commission could freely amend the guidelines by
amending the commentary, it could avoid these notice-and-comment obligations. The healthy
judicial review that Kisor contemplates thus will restrict the Commission’s ability to do so.
We are not alone in this conclusion. The en banc Third Circuit recently adopted the same
view. See United States v. Nasir, 982 F.3d 144, 158 (3d Cir. 2020) (en banc). It recognized that
its pre-Kisor cases had upheld commentary expanding the guidelines. Id. Yet these cases could
not stand after Kisor, the court found, because it “cut back on what had been understood to be
uncritical and broad deference to agency interpretations of regulations[.]” Id. As a concurrence
put it, Kisor must awake us “from our slumber of reflexive deference” to the commentary. Id. at
177 (Bibas, J., concurring in part).
2
We thus do not immediately defer to Application Note 3(F)(i). Rather, we first ask
whether § 2B1.1 is “genuinely ambiguous.” Kisor, 139 S. Ct. at 2415. Section 2B1.1’s language
tells courts to “increase the offense level” in incremental amounts based on the amount of the
“loss” (measured in dollars). U.S.S.G. § 2B1.1(b)(1). Where, as here, a legal text does not
define a term, we generally “give the term its ordinary meaning.” United States v. Zabawa,
719 F.3d 555, 559 (6th Cir. 2013); United States v. Sands, 948 F.3d 709, 713–14 (6th Cir. 2020).
And “dictionaries are a good place to start” to identify the range of meanings that a reasonable
person would understand a word like “loss” to have. Zabawa, 719 F.3d at 559. One dictionary
defines the word to mean, among other things, the “amount of something lost” or the “harm or
suffering caused by losing or being lost.” American Heritage Dictionary of the English
Language 1063 (3d ed. 1992). Another says it can mean “the damage, trouble, disadvantage,
[or] deprivation . . . caused by losing something” or “the person, thing, or amount lost.”
Webster’s New World College Dictionary 799 (3d ed. 1996). A third defines it as “the being
No. 19-4232 United States v. Riccardi Page 12
deprived of, or the failure to keep (a possession, appurtenance, right, quality, faculty, or the
like),” the “[d]imunition of one’s possessions or advantages,” or the “detriment or disadvantage
involved in being deprived of something[.]” 9 Oxford English Dictionary 37 (2d ed. 1989).
These definitions show that “loss” can mean different things in different contexts. The
word might include emotional harms, as in the statement that the children “bore up bravely under
the [loss] of both parents[.]” Webster’s Third New International Dictionary 1338 (1986). Or it
might include just economic harms, as in the statement that my friend was “forced to sell all the
stock at a [loss].” Id. (Another part of § 2B1.1’s commentary does, in fact, read § 2B1.1 as
limited to economic harms. See U.S.S.G. § 2B1.1 cmt. n.3(A)(iii); Kozerski, 969 F.3d at 313.)
Even in the economic realm, the word might cover only the precise value of, say, a gift card that
is stolen (the “amount of something lost”). American Heritage Dictionary, supra, at 1063. Or it
might include the costs associated with obtaining a replacement gift card, including the time and
expense from a second trip to the store (“the damage, trouble, disadvantage, [or]
deprivation . . . caused by losing something”). Webster’s New World College Dictionary, supra,
at 799.
In this case, however, we need not decide whether one clear meaning of the word “loss”
emerges from the potential options after applying “the ‘traditional tools’ of construction” to
§ 2B1.1. Kisor, 139 S. Ct. at 2415 (citation omitted). No matter the word’s meaning, the
commentary’s $500 minimum loss amount for gift cards does not fall “within the zone of [any]
ambiguity” in this guideline. Id. at 2416; cf. MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.,
512 U.S. 218, 225–29 (1994). No reasonable person would define the “loss” from a stolen gift
card as an automatic $500. Rather, the “amount” of the loss or “damage” to the victim from a
gift-card theft in any case will turn on such fact-dependent things as the value of the gift card or
the costs of replacing it. American Heritage Dictionary, supra, at 1063; Webster’s New World
College Dictionary, supra, at 799. This case proves the point. It is undisputed that 1,322 of
Riccardi’s stolen gift cards had total face values of $47,000 for an average value of about $35.
And the government identifies no evidence suggesting that the total “damage” from this theft
approached the $752,500 required by the commentary’s mandatory $500 loss amount.
No. 19-4232 United States v. Riccardi Page 13
Our conclusion is reinforced by caselaw distinguishing “legislative rules” (which must
proceed through notice-and-comment rulemaking) from “interpretive rules” (which need not
proceed through that rulemaking) under the Administrative Procedure Act. See generally Perez
v. Mortg. Bankers Ass’n, 575 U.S. 92, 95–97 (2015); 5 U.S.C. § 553(b). Precedent in that
context recognizes that a specific numeric amount like the $500 in this case generally will not
qualify as a mere “interpretation” of general nonnumeric language. See Catholic Health
Initiatives v. Sebelius, 617 F.3d 490, 495 (D.C. Cir. 2010). An agency, for instance, did not
simply “interpret” a rule requiring parties to use “structurally sound” facilities to house
dangerous animals when it concluded that this rule mandated an eight-foot fence. See Hoctor v.
U.S. Dep’t of Agric., 82 F.3d 165, 169–71 (7th Cir. 1996). Rather, “when an agency wants to
state a principle ‘in numerical terms,’ terms that cannot be derived from a particular record, the
agency is legislating and should act through rulemaking.” Catholic Health Initiatives, 617 F.3d
at 495 (quoting Henry J. Friendly, Watchman, What of the Night?, in Benchmarks 144–45
(1967)).
The same logic applies here. The commentary’s bright-line $500 loss amount cannot “be
derived from [§ 2B1.1] by a process reasonably described as interpretation.” Hoctor, 82 F.3d at
170. The Commission’s decision to adopt this minimum loss amount was instead a substantive
policy choice, one presumably based on empirical factors like the difficulty of determining actual
losses in cases involving “access devices” or the “average” loss in those types of cases. Yet if
the Commission seeks to keep individuals behind bars for longer periods of time based on this
type of “fictional” loss amount, this substantive policy decision belongs in the guidelines, not in
the commentary. Lyles, 506 F. App’x at 445; see Havis, 927 F.3d at 385–86.
The government’s responses do not change things. It does not argue meaningfully that a
$500 minimum amount for gift cards qualifies as an “interpretation” of the word loss. It instead
suggests that calculating the loss amount will often prove challenging and that district courts
must make estimates. It thus relies on the standard of review for a district court’s finding about
the amount of the loss: A defendant “must carry the heavy burden of persuading this Court that
the [district court’s] evaluation of the loss was not only inaccurate, but was outside the realm of
permissible computations.” United States v. Jackson, 25 F.3d 327, 330 (6th Cir. 1994); see, e.g.,
No. 19-4232 United States v. Riccardi Page 14
United States v. Gray, 521 F.3d 514, 543 (6th Cir. 2008). The government places undue reliance
on this standard of review. Yes, it may sometimes be difficult to estimate the actual amount of
loss. And yes, when a district court makes a record-based factual finding about the amount of
the loss, we review its finding under a deferential clear-error standard. See Jackson, 25 F.3d at
330. But the district court’s $500-loss-per-gift-card finding was not tied to its view of the
evidence or the amount of the actual loss; it was tied to the legal requirement in Application Note
3(F)(i). And we review the purely legal question whether this requirement comports with
§ 2B1.1 without the slightest deference to the district court. See, e.g., Havis, 927 F.3d at 384–87.
The government next turns to precedent interpreting the guidelines. It notes that our
unpublished Murphy decision upheld a separate part of Application Note 3 indicating that “loss”
includes not just actual financial harm but also financial harm intended by the defendant. See
815 F. App’x at 924. Yet Murphy did not address Kisor’s recent clarification about the limited
nature of Auer. And, regardless, whether “loss” in § 2B1.1 can be read to include intended loss
says nothing about whether it also can be read to mean an automatic $500 loss amount for all
stolen gift cards no matter the facts. Nothing in Murphy implies that § 2B1.l can be read in that
broader way.
The government also attempts to distinguish our en banc Havis decision. That case
involved a guideline phrase (controlled substance offense) that had a definition in the guideline
itself, not in the commentary. 927 F.3d at 384. The guideline did not include “attempt” crimes
in the definition of “controlled substance offense,” but the Commission’s commentary enlarged
the definition to cover those crimes. Id. We held that the commentary qualified as an improper
attempt to expand, not interpret, the guidelines. Id. at 386–87. Here, by contrast, the
government argues that § 2B1.1 does not itself define the word “loss” and so “leaves the job of
defining its parameters to the corresponding Application notes.” Appellee’s Br. 22. Not so. Just
because a word in a guideline does not come with its own guideline definition does not leave us
at sea about its meaning or give the Commission license to define the term however it likes in the
commentary. Courts presume that an undefined word comes with its ordinary meaning, not an
unusual one. See, e.g., Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995); Zabawa, 719
F.3d at 559. That bedrock interpretive insight applies to words in the guidelines too. Sands, 948
No. 19-4232 United States v. Riccardi Page 15
F.3d at 713–14; see also, e.g., United States v. Ward, 972 F.3d 364, 369 (4th Cir. 2020); United
States v. Crittenden, 372 F.3d 706, 708 (5th Cir. 2004). And the commentary’s unusual
“definition” of loss conflicts with the ordinary definition that we must follow.
The government thus falls back on a policy argument. When financial fraudsters get
caught in access-device thefts, the government often encounters difficulty uncovering the full
extent of their crimes. It thus believes that a $500 minimum loss amount is a reasonable
compromise to account for these difficulties. We need not take issue with the government’s
policy points to reject their application here. Perhaps some crimes do have difficult-to-quantify
losses. Cf. United States v. Carver, 916 F.3d 398, 404 (4th Cir. 2019). And it is not unusual for
a statutory term to include an unusual statutory definition that departs from its ordinary meaning.
See, e.g., Tanzin v. Tanvir, 141 S. Ct. 486, 490 (2020); Digit. Realty Tr., Inc. v. Somers,
138 S. Ct. 767, 776 (2018). Thus, nothing we say here would prevent the Commission from
adopting its $500 minimum amount for access devices by placing this legislative rule in the
guideline itself. We hold only that the Commission may not make this kind of substantive policy
choice in the commentary and claim that its choice represents nothing more than an
“interpretation” of the guideline.
We end by flagging one issue that the government did not raise. It appears that the
Commission sent the amendment adopting this $500 minimum amount to Congress for its review
and added it to the commentary using notice-and-comment rulemaking. See 65 Fed. Reg.
26,880, 26,895 (May 9, 2000); 65 Fed. Reg. 2663, 2668 (Jan. 18, 2000). Should we overlook
that this $500 minimum sits in the commentary given that the Commission may have met the
procedural checks required for it to amend the guidelines themselves? We think not. By placing
this loss amount in the commentary, the Commission has retained the power to adjust it
tomorrow without satisfying the same procedural safeguards. See Stinson, 508 U.S. at 39–46.
So the normal administrative principles should apply. Under those principles, this $500
minimum loss amount for gift cards does not “fall ‘within the bounds of reasonable
interpretation’” of § 2B1.1’s text. Kisor, 139 S. Ct. at 2416 (citation omitted). The district court
thus should not have used it.
No. 19-4232 United States v. Riccardi Page 16
III. Restitution
Apart from her 56-month sentence, Riccardi also challenges the district court’s order
requiring her to pay $89,102 in restitution. She argues that the court should have offset this
amount with the cash and gift cards that she forfeited to the government. But we cannot consider
Riccardi’s argument because she waived the right to raise it in her plea agreement.
A criminal defendant “may waive any right, even a constitutional right, by means of a
plea agreement.” United States v. Winans, 748 F.3d 268, 270 (6th Cir. 2014) (citation omitted).
That includes the right to appeal a sentence. Id. When deciding whether a defendant has waived
this right, we interpret the plea agreement using traditional principles of contract interpretation.
Id.
These rules foreclose Riccardi’s appeal of the restitution order. Her plea agreement
unambiguously stated that she “expressly and voluntarily waive[d]” the right “to appeal the
conviction or sentence[.]” And “restitution is a part of a defendant’s sentence.” United States v.
Rafidi, 730 F. App’x 338, 340 (6th Cir. 2018). So we have repeatedly read a waiver of the right
to appeal a “sentence” as including a “restitution” order. Id. at 342; United States v. Grundy,
844 F.3d 613, 616 (6th Cir. 2016); United States v. Black, 652 F. App’x 376, 379 (6th Cir. 2016);
Winans, 748 F.3d at 271; United States v. Patel, 577 F. App’x 568, 572 (6th Cir. 2014) (per
curiam); United States v. Curry, 547 F. App’x 768, 770–71 (6th Cir. 2013); United States v.
Reese, 509 F. App’x 494, 499 (6th Cir. 2012); United States v. Gibney, 519 F.3d 301, 306 (6th
Cir. 2008); United States v. Sharp, 442 F.3d 946, 952 (6th Cir. 2006).
To be sure, we did not read an appeal waiver in this fashion in United States v. Smith,
344 F.3d 479 (6th Cir. 2003). Riccardi’s waiver nevertheless falls within our usual rule, not
within Smith’s exception. There, we held that a defendant’s plea agreement did not waive a right
to appeal the loss calculations supporting the restitution order when the agreement indicated that
the defendant waived the right “to appeal any sentence which is within the parameters of this
agreement[.]” Id. at 483. Because the agreement’s “parameters” did not include a method for
calculating the loss, we read this ambiguous phrase against the government and held that the
defendant’s appeal of the loss calculation fell outside the waiver. Id. Here, by contrast,
No. 19-4232 United States v. Riccardi Page 17
Riccardi’s waiver unambiguously covers the right to appeal any sentence without limitation. It
does not cover only a sentence within the plea agreement’s “parameters.” So Smith does
Riccardi no good.
True enough, Riccardi’s plea agreement also included several exceptions to this appeal
waiver for certain claims (hence why she could appeal the district court’s use of the $500
minimum loss amount). But Riccardi gives us no reason to conclude that any exception covers
her challenge to the restitution order. Some exceptions—e.g., those permitting Riccardi to bring
ineffective-assistance-of-counsel or prosecutorial-misconduct claims or to appeal certain
guidelines calculations—have no relevance to her restitution challenge.
That leaves Riccardi with the right to appeal (1) “any sentence to the extent it exceeds the
maximum of the sentencing imprisonment range determined under the advisory Sentencing
Guidelines” or (2) “any punishment in excess of the statutory maximum[.]” Yet the first
exception—for a sentence exceeding the guidelines “imprisonment range”—does not apply
because restitution is not “imprisonment,” and the guidelines do not provide restitution “ranges.”
See Sharp, 442 F.3d at 952. Riccardi also offers no explanation why the second exception—for
punishments exceeding the “statutory maximum”—applies. Indeed, our cases have noted that
the “restitution statutes do not contain a maximum penalty[.]” Id.; see United States v. Bradley,
969 F.3d 585, 591–92 (6th Cir. 2020).
In short, if Riccardi “wished to reserve h[er] right to appeal the restitution order, [s]he
should have negotiated for that right in h[er] plea agreement.” Rafidi, 730 F. App’x at 342
(quoting Sharp, 442 F.3d at 952). She has given us no basis to conclude on appeal that she did
so.
Outcome: We reverse Riccardi’s 56-month sentence, dismiss her separate challenge to the
restitution order, and remand for resentencing consistent with this opinion
Plaintiff's Experts:
Defendant's Experts:
Comments: