Think Twice Before Relying Upon the Sentencing Guideline Commentary

United States v. Riccardi

Case No. 19-4232

989 F.3d 476 (6th Cir. 2021)

Decided: March 3, 2021

When interpreting and applying the United States Sentencing Guidelines, practitioners should be cautious before relying too heavily on the official commentary.  In a recent Sixth Circuit opinion, United States v. Riccardi, the Court relies on a two-step process to determine when it is appropriate to adopt the commentary into the sentencing report.

In Riccardi, the defendant pled guilty to three counts: (1) possessing stolen mail in violation of 18 U.S.C. § 1708; (2) stealing mail as a postal employee in violation of 18 U.S.C. § 1709; and (3) possessing 15 or more “unauthorized access devices” in violation of 18 U.S.C. § 1029(a)(3).  The defendant was an employee of the US Postal Service.  After an investigation was launched, the government discovered that the defendant had intercepted mail, stealing over $42,102 in cash and 1,505 gift cards that had an average value of $35 on each card.  The issue on appeal was determining the amount of loss for the 1,505 gift cards.

The presentence report set Riccardi’s sentencing guidelines range based on the “loss” valuations found in the Sentencing Guidelines.  U.S.S.G. § 2B1.1.   The report calculated the loss of the 1,505 gift cards, not based on the actual face value of each card, but instead imposed a $500 loss per gift card, totaling $752,500.  The $500 minimum came from the official commentary that defined the amount of “loss.”  The Sixth Circuit found that the lower court improperly permitted the government to rely on the commentary, which states the minimum loss for each gift card shall be a minimum of $500 per device because it is considered an “unauthorized access device.”  An “unauthorized access device” is stolen money, goods, services or anything of value.  The government argued the commentary interpretation of loss shall be applied, because Riccardi pled guilty and conceded that the gift cards were “unauthorized access devices.”  The District Court accepted this commentary instead of requiring the government to prove the actual loss amount by a preponderance of evidence. The Sixth Circuit agreed that the official commentary interprets the Guidelines, but held it should not be relied upon in this case.

The presentence report loss calculation totaled an amount between $550,000 – $1,500,000.  U.S.S.G. § 2B1.1 cmt. n.3(f)(i).  Relying on this loss calculation, Riccardi’s offense level was drastically increased.  Notwithstanding the fact that the average amount on each gift card was only $35, the District Court imposed a sentence at the top of the guidelines range – 56 months based on the inflated presentencing loss amount.  Riccardi appealed.

The Sentencing Guidelines are advisory and “must  be  given  ‘controlling  weight  unless  it  is plainly erroneous or inconsistent with the” guideline.  Stinson v. United States, 508 U.S. 36, 38 (1993) (quoting  Bowles v. Seminole Rock, 325  U.S.  410, 414 (1945)).  While the Sentencing Guidelines are required to go through notice-and-comment rulemaking, the official commentary does not have this level of rigorous review as it is only “commentary.”

The Sixth Court outlined a two-step process to prevent overreliance of the commentary. First, the District Court must find that the Sentencing Guideline is genuinely ambiguous.  Then, it must determine if the the official commentary provides a reasonable interpretation of that ambiguity.  In this case, the term “loss” in the Guidelines was genuinely ambiguous as it does not have one ordinary meaning, but applying a minimum of $500 of loss per gift card is not a reasonable interpretation.  The face value of the stolen gift cards had a determinable face value, which on average was only $35 per gift card.  It would be unreasonable to apply a $500 loss per card.  The official commentary shall not be relied upon in all situations, as found in Riccardi, but only when the sentencing guideline is genuinely ambiguous and the commentary provides a reasonable interpretation. Riccardi’s 56-month sentence was reversed and remanded for resentencing.