United States v. Jennifer Riccardi, 989 F.3d 476

Background

Jennifer Riccardi, a postal worker, pleaded guilty to mail theft and possessing 15+ unauthorized access devices after investigators found 1,505 stolen gift cards and $42,102 in cash at her home.
Of the gift cards, 1,322 had a documented total face value of about $47,000 (≈ $35 each); 183 had unidentified values.
The PSR applied U.S.S.G. § 2B1.1 cmt. n.3(F)(i), which mandates a minimum $500 loss per “unauthorized access device,” treating each gift card as a $500 loss and totaling $752,500; that raised Riccardi’s offense level and yielded a 46–57 month guidelines range.
The district court overruled Riccardi’s objection, sentenced her to 56 months, and ordered $89,102 restitution (including forfeited cash and gift cards).
On appeal Riccardi challenged (1) the application-note $500 per card minimum and (2) the restitution calculation/offset; the Sixth Circuit reversed the sentence and remanded, and dismissed the restitution challenge as waived.

Issues

Issue	Riccardi’s Argument	Government’s Argument	Held
Whether Application Note 3(F)(i)’s $500-per-access-device minimum loss can be applied to stolen gift cards under § 2B1.1	The $500 minimum is inapplicable to gift cards whose actual face value is far below $500; loss should reflect actual or provable pecuniary harm	The commentary authoritatively defines loss for access devices; courts may apply the $500 floor where actual loss is hard to quantify	The $500-per-device rule in the commentary cannot be treated as an interpretation of § 2B1.1 because it is a substantive, numeric rule that falls outside any zone of ambiguity in the guideline; vacated and remanded for resentencing without that mandatory minimum
Whether the Sentencing Commission may impose a substantive numeric rule in commentary rather than in the guideline text	Commentary may not create a mandatory substantive rule; numeric floors are legislative choices that must appear in the guideline itself	The Commission’s placement of the $500 floor in commentary is acceptable and practically necessary to address proof difficulties	The court held commentary may only interpret guidance; a $500 floor is a substantive policy choice (not mere interpretation) and thus improper when located only in commentary (can be adopted lawfully only as a guideline amendment)
Whether the district court should have offset restitution by property already forfeited	Restitution should be offset by cash/gift cards forfeited to the government	PSR and district court treated forfeiture and restitution as distinct; government argued procedural limits	The restitution claim was forfeited by Riccardi’s broad appellate waiver in her plea agreement, so the Sixth Circuit dismissed that challenge on appeal

Key Cases Cited

Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (clarifies limits on Auer deference; agency interpretation only if regulation is genuinely ambiguous and the interpretation falls within that zone)
Stinson v. United States, 508 U.S. 36 (1993) (Sentencing Commission commentary entitled to deference and controlling weight unless plainly erroneous or inconsistent with the guideline)
United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (commentary cannot be used to expand guideline text; commentary must be an interpretation)
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012) (specific provisions govern over general ones in statutory interpretation)
United States v. LaBonte, 520 U.S. 751 (1997) (commentary inconsistent with statutory text must give way)