United States of America v. James Edward Lindsey, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES EDWARD LINDSEY, JR.,
Defendant-Appellant.
No. 18-50310
D.C. No.
2:17-cr-00301-SJO-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted August 12, 2019
Pasadena, California
Before: SCHROEDER and GRABER, Circuit Judges, and M. WATSON,**
District Judge.
Defendant James Edward Lindsey, Jr. appeals his sentence of twenty-four
months’ imprisonment, imposed after he pleaded guilty to embezzlement of mail
FILED
AUG 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Michael H. Watson, United States District Judge for the
Southern District of Ohio, sitting by designation.

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matter in violation of 18 U.S.C. § 1709. He argues that the district court
improperly calculated an intended loss amount greater than $95,000 under United
States Sentencing Guideline § 2B1.1(b)(1)(E), based partly on the face value of
two checks that were found in his possession. He contends that the district court
clearly erred in concluding that he intended to cause a loss from those checks.
“A calculation of the amount of loss is a factual finding reviewed for clear
error,” which is a “significantly deferential” standard. United States v. Stargell,
738 F.3d 1018, 1024 (9th Cir. 2013) (citations omitted). We need not determine
here whether the district court clearly erred in concluding that Defendant intended
to cause a loss in the amount of the checks because there was other evidence to
support the district court’s intended loss calculation.1
Defendant did not dispute that he intended to cause a loss in the amount of
$90,021.14, which is the value of the diamonds that he admitted stealing from the
mail. The district court’s conclusion that Defendant intended an additional loss
greater than $4,978.86 has support in the record.
1 We may affirm the district court’s intended loss calculation on any basis
supported by the record. See United States v. Nichols, 464 F.3d 1117, 1122 (9th
Cir. 2006) (“[W]e may affirm on any ground supported by the record, even if it
differs from the rationale of the district court.” (citation omitted)); United States v.
Polanco, 93 F.3d 555, 566 (9th Cir. 1996) (“[W]e may nevertheless affirm the
district court’s sentencing decision on any basis supported by the record.”).
2

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First, $5,000 in cash was found in Defendant’s backpack during the search
incident to his arrest. The picture of the diamonds and the cash and the text
messages Defendant sent to his girlfriend suggest that the cash was either stolen or
constituted the proceeds of stolen goods. The Government thus proved by a
preponderance of the evidence that the $5,000 cash represents additional intended
loss, which supports the district court’s ultimate intended loss calculation.
Second, “when calculating loss amounts, the district court is allowed to
consider all relevant conduct that is ‘part of the same course of conduct or common
scheme or plan as the offense of conviction.’” United States v. Thomsen, 830 F.3d
1049, 1071 (9th Cir. 2016) (quoting U.S.S.G. § 1B1.3(a)(2)). “This allows the
court to include charged, uncharged, and even acquitted conduct in the
determination of loss.” Thomsen, 830 F.3d at 1071. Defendant admitted to
stealing “valuable jewelry” from the mail during the six or seven months
preceding—and as recent as the week before—the charged offense. During that
same period, the post office reported losing expensive items like diamond rings
and loose diamonds. Additionally, a search of Defendant’s phone revealed a
picture of his girlfriend wearing a large diamond ring. Given that Defendant
admitted to stealing multiple pieces of valuable jewelry and that the district court
could infer that the diamond ring from the photograph was stolen, Defendant’s
3

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prior mail theft proves by a preponderance of the evidence that Defendant intended
to cause an additional loss reasonably estimated to exceed $4,978.86.
Both of those independent bases support the district court’s conclusion that
“[D]efendant would have taken as much as he could have taken from the victims,”
and both support the district court’s ultimate intended loss calculation.
AFFIRMED.
4

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