United States v. Derrick Thomas, 585 F. App'x 869

Derrick Alan Thomas pleaded guilty to possession of stolen mail in violation of 18 U.S.C. §§ 1708 and 2 and received a sentence the district court calculated under the advisory Sentencing Guidelines.
Thomas did not request at sentencing a three-level reduction under the Guidelines for a partially completed offense (Guidelines §§ 2B1.1 cmt. n.18 and 2X1.1(b)(1)).
On appeal he argued the court should have treated the possession conviction as part of a larger, partially completed theft scheme and reduced his offense level by three levels for an attempted/partially completed offense.
Thomas relied primarily on United States v. John to argue that most of his intended criminal activity remained uncompleted and thus warranted the reduction.
The government and the court treated Thomas’s conviction as a completed substantive offense (possession of stolen mail), which does not require proof of actual loss and therefore did not trigger the partially-completed-offense reduction.
Because Thomas failed to raise the issue below, the Fifth Circuit reviewed for plain error and concluded there was no clear or obvious error in the Guidelines calculation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a 3-level reduction under the partially completed-offense rules (§§ 2B1.1 cmt. n.18 and 2X1.1(b)(1)) should apply	Thomas: his possession of stolen mail was part of a larger attempted theft/fraud and most intended theft remained uncompleted, so reduce 3 levels	Government: conviction was for a completed substantive offense (possession of stolen mail); no uncompleted offense was used in the offense-level calculation, so reduction is inapplicable	Court: Affirmed — no plain error; reduction inapplicable because offense was a completed substantive offense and Thomas didn’t preserve the issue

United States v. John, 597 F.3d 263 (5th Cir.) (discussed reduction when most intended loss came from many uncompleted offenses)
United States v. Oates, 122 F.3d 222 (5th Cir.) (partially-completed-offense reduction inapplicable where offense was completed substantive offense)
United States v. Cisneros-Gutierrez, 517 F.3d 751 (5th Cir.) (standard of review: Guidelines application de novo; factual findings for clear error)
United States v. Broussard, 669 F.3d 537 (5th Cir.) (plain-error review where issue not raised below)
Puckett v. United States, 556 U.S. 129 (Sup. Ct.) (plain-error standard requires clear or obvious error affecting substantial rights)
Gall v. United States, 552 U.S. 38 (Sup. Ct.) (Guidelines are advisory; district court must correctly calculate range)
United States v. Osunegbu, 822 F.2d 472 (5th Cir.) (elements of possession of stolen mail do not require proof of actual loss)
United States v. Waskom, 179 F.3d 303 (5th Cir.) (focus is on the substantive offense and defendant’s conduct in relation to that offense)