UNITED STATES V. GEMENTERA 379 F.3d 596 (9th Cir. 2004) CASE BRIEF

UNITED STATES V. GEMENTERA

379 F.3d 596 (9th Cir. 2004)

NATURE OF THE CASE: Gementera (D) who entered a guilty plea to mail theft, appealed a judgment of the United States District Court, which sentenced him to two months' incarceration and three years' supervised release, with a condition that he spend a day standing outside a post office wearing a signboard stating that he stole mail.

FACTS: D pilfered letters from several mailboxes. A police officer who observed the episode detained D and his partner in crime, Andrew Choi, who had been stuffing the stolen letters into his jacket as D anxiously kept watch. D entered a plea agreement pursuant to which he pled guilty to mail theft. The government dismissed a second count of receiving a stolen U.S. Treasury check. D's criminal history was lengthy for a man of his relative youth, and it was growing steadily more serious. He was convicted of misdemeanor criminal mischief, twice convicted at age twenty of driving with a suspended license, convictions for driving with a suspended license and for failing to provide proof of financial responsibility and a conviction for misdemeanor battery. Other arrests and citations included possession of drug paraphernalia, additional driving offenses (most of which involved driving on a license suspended for his failure to take chemical tests), and taking a vehicle without the owner's consent. D was sentenced to two months incarceration and three years supervised release. Conditions of supervised release required D to 'perform 100 hours of community service,' to consist of 'standing in front of a postal facility in the city and county of San Francisco with a sandwich board which in large letters declares: 'I stole mail. This is my punishment.'' D later filed a motion to correct the sentence by removing the sandwich board condition. The judge modified the sentence and imposed a four-part special condition in its stead. Three new terms, proposed jointly by counsel, mandated that D observe postal patrons visiting the 'lost or missing mail' window, write letters of apology to any identifiable victims of his crime, and deliver several lectures at a local school. It also included a scaled-down version of the signboard to 8 total hours. D timely appealed. On March 12, 2003, prior to his surrender, D was arrested for possession of stolen mail, for which he was convicted and received a twenty-four-month sentence.

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