Unpublished Disposition, 931 F.2d 898 (9th Cir. 1990)

MEMORANDUM^** 

La Rhonda Schwartz appeals her sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following her conviction on a guilty plea, for conspiracy to possess stolen mail, possession of stolen mail and theft of mail by a postal employee, in violation of 18 U.S.C. §§ 371, 1708 and 1709. Schwartz claims the district court erred by increasing her base offense level pursuant to U.S.S.G. Sec. 3B1.1(a), which authorizes such an adjustment "if the defendant was an organizer or leader of a criminal activity that involved five or more participants." Schwartz claims the government failed to prove by a preponderance of the evidence that she was an organizer within the meaning of this section. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

We review for clear error the factual finding that Schwartz was an organizer or leader pursuant to Sec. 3B1.1(a). United States v. Sanchez, 908 F.2d 1443, 1447 (9th Cir. 1990); United States v. Carvajal, 905 F.2d 1292, 1295 (9th Cir. 1990). Circumstances justifying an increase from the base offense level must be proven by a preponderance of the evidence. United States v. Wilson, 900 F.2d 1350, 1354 (9th Cir. 1990). A defendant who supplies contraband to a codefendant who manages its distribution may qualify for the adjustment. United States v. Smith, 924 F.2d 889, 896 (9th Cir. 1991). A defendant who controls a criminal transaction may be deemed an organizer. Carvajal, 905 F.2d at 1296. "There can ... be more than one person who qualifies as a leader or organizer." U.S.S.G. Sec. 3B1.1, comment. n. 3.

On September 17, 1989, Schwartz, a postal supervisor, stole a shipment of registered mail valued at over 1.6 million dollars. Together with a codefendant, Douglas Piggee, she opened the various parcels which contained rare coins, jewelry, cash, classified government documents, and travelers checks. Later, she took the parcels' official wrappings to a remote location and burned them. On the day following the theft, Schwartz requested and was granted stress sick leave from her job at the post office until January 1, 1990. Shortly after the theft, Piggee moved from the home he shared with Schwartz to the Executive Inn. He brought with him several hundred thousand dollars in stolen travelers checks, and Schwartz brought him more in the ensuing weeks. Piggee sold the unsigned travelers checks through his nephew, Frederick Ward, and two others, Bernard and John Baremore.

Twice in October 1989, Schwartz sold stolen coins to Century Stamp and Coin Company in Los Angeles. She instructed the dealer to negotiate the sale by telephone with Piggee, and requested payment in four checks, issued to different names. On November 28, 1989, postal inspectors interviewed Schwartz, who admitted the theft and voluntarily turned over $113,750 in blank travelers checks. In December, Schwartz and her sister, Stephanie Ashton, sold several pieces of stolen jewelry to various pawn shops in Los Angeles. Schwartz admitted to her probation officer that she and Piggee had used the proceeds from the sale of the stolen items to buy cocaine and two motorcycles.

Schwartz claims that following the theft, Piggee assumed primary control over the stolen items and the network of accomplices who distributed them. Even if this is true, the district court did not clearly err by applying the adjustment to Schwartz's base offense level because Schwartz was the sole source of the items Piggee and his recruits distributed. See Smith, 924 F.2d at 896. Moreover, the Guidelines provide for criminal enterprises with more than one organizer. See U.S.S.G. Sec. 3B1.1, comment. n. 3. Schwartz conceded she sold items from the stolen shipment, alone and with various accomplices, for three months following the theft. In late November, she still had over $113,000 in stolen travelers checks to turn over to the Postal Inspector. These facts amply supported the district court's finding that Schwartz was a leader in the conspiracy to possess stolen mail. See Carvajal, 905 F.2d at 1296.

AFFIRMED.