Appeal from the United States District Court for the Northern District of Texas.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: James Wesley Hendrix, Assistant U.S. Attorney, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX; Christopher R. Wolfe, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Fort Worth, TX.
For SHERYL DENISE LAGRONE, Defendant - Appellant: Kevin Joel Page, Federal Public Defender's Office, Northern District of Texas, Dallas, TX; William Reynolds Biggs, Fort Worth, TX.
Before REAVLEY, PRADO, and OWEN, Circuit Judges.
ON PANEL REHEARING
PRISCILLA R. OWEN, Circuit Judge:
Our panel granted rehearing, withdrawing our earlier opinion filed February 18, 2014. After hearing argument and further considering the issues, we substitute the following.
Sheryl Denise Lagrone was convicted on two felony counts of violating 18 U.S.C. § 641. The district court sentenced Lagrone to two concurrent terms of forty-five months of imprisonment. Although Lagrone's two theft offenses involved Government property with a value exceeding $1,000 in the aggregate, the value of the property involved in each theft offense was less than $1,000. Lagrone contends that she may only be convicted of one felony, not two, under § 641 because her first theft did not exceed $1,000. We affirm the sentence imposed by the district court.
Lagrone obtained postal stamps from United States Postal Service offices by tendering checks with insufficient funds as payment. She was indicted, in three counts, for willfully and knowingly stealing " a thing of value" from the United States in violation of 18 U.S.C. § 641. She pleaded guilty to two of the counts for stealing $880 of stamps from each of two post offices. The third count was dismissed. In her guilty plea, Lagrone stipulated to the facts of her offenses but reserved the right to dispute the possible penalties--specifically whether she was subject to penalties for a single felony conviction or two felony convictions. The Government articulated its belief that Lagrone was subject to a maximum of 20 years of imprisonment
(ten years per count), a fine not to exceed $500,000 ($250,000 per count), and special assessments of $200 ($100 per count). Lagrone contended that the maximum penalties were limited to those for a single felony count under § 641, which would be ten years of imprisonment, a $250,000 fine, and a $100 special assessment.
The Presentence Investigation Report (PSR) determined that Lagrone had a total offense level of 8 and Criminal History Category of V, which resulted in an advisory Guidelines range of 15 to 21 months of imprisonment for each count. At sentencing, the district court adopted the findings of the PSR but varied upward to address Lagrone's criminal history. The district court also rejected Lagrone's objection to the second felony count. The district court sentenced Lagrone to 45 months of imprisonment, and three years of supervised release for each count, to run ...