## Facts

- Jennifer Riccardi, a U.S. Postal Service employee, stole 1,505 gift cards from the mail.
- Most stolen gift cards averaged about $35 each; the government established roughly $47,000 in known face value but did not prove the value of all cards.
- Riccardi pleaded guilty to possessing stolen mail (18 U.S.C. § 1708), stealing mail as a postal employee (18 U.S.C. § 1709), and possessing 15 or more unauthorized access devices (18 U.S.C. § 1029(a)(3)).
- At sentencing, the dispute concerned “loss” under U.S.S.G. § 2B1.1(b)(1).
- The district court applied U.S.S.G. § 2B1.1 cmt. n.3(F)(i), which states loss “shall be not less than $500” per unauthorized access device; Riccardi conceded the gift cards qualified as unauthorized access devices.
- Using $500 × 1,505 cards, the court calculated a $752,500 loss, applied a 14-level increase, and arrived at a 46–57 month Guidelines range.
- The court sentenced Riccardi to 56 months’ imprisonment and ordered $89,102 in restitution (including gift-card value and $42,102 cash found in her home).
- Riccardi appealed, challenging the loss calculation and the binding effect of the commentary’s $500-per-device rule.

## Issues

1. Whether Application Note 3(F)(i) to U.S.S.G. § 2B1.1 permissibly interprets the term “loss,” or instead adds a substantive rule beyond the Guideline’s text.
2. What level of deference courts owe Sentencing Guidelines commentary after Stinson and the Sixth Circuit’s en banc decision in Havis, and when commentary may be rejected as inconsistent with the Guideline.

## Decision

- The Sixth Circuit vacated Riccardi’s sentence and remanded for resentencing.
- The court held that Guidelines commentary is authoritative only when it interprets, rather than expands, the Guideline text.
- The court concluded the $500-per-access-device minimum in Application Note 3(F)(i) is not a reasonable interpretation of “loss” in § 2B1.1 and therefore is not binding.
- Because the district court treated the commentary’s $500 rule as controlling and it materially increased the Guidelines range, the court found procedural error requiring resentencing.
- A separate opinion concurred in part and in the judgment, agreeing the sentence must be vacated and addressing limits on deference to commentary.

## Legal Principles

- Sentencing Guidelines commentary has controlling force only to the extent it is consistent with, and a reasonable interpretation of, the Guideline it addresses.
- Courts must begin with the Guideline’s text; commentary that supplies an extra rule not grounded in the text’s meaning is not authoritative.
- Even if a term in the Guideline is ambiguous at the margins, commentary must remain within that ambiguity; it cannot replace the text-based inquiry with a categorical proxy untethered to actual harm.
- Allowing commentary to function as a substantive amendment raises statutory process concerns because Guidelines amendments require procedural safeguards not required for commentary.

## Conclusion

The Sixth Circuit held that the § 2B1.1 commentary’s $500-per-unauthorized-access-device loss floor exceeds interpretive commentary by substituting a mandatory proxy for “loss” that may not reflect actual harm; it vacated the sentence and remanded for recalculation of the Guidelines range without treating the $500 rule as binding.


United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021)