788 F.3d 1247
10th Cir.2015Background
- Defendant Elvin Alisuretove pleaded guilty to one-count conspiracy to commit wire fraud based on a scheme using skimming devices on gas pumps to capture debit card data and withdraw cash via counterfeit cards.
- Investigation found ~524 debit accounts compromised and ~779 fraudulent ATM withdrawals totaling $348,376.80; some attempted withdrawals totaled $12,480.00.
- PSR attributed total intended loss of $360,856.80 to Alisuretove (leading to a 12‑level Guidelines enhancement) and recommended restitution of $240,682.27 under the MVRA.
- At sentencing the government presented Secret Service evidence (flight records, ATM surveillance, Alisuretove’s post‑arrest statements) and the district court held him accountable for the conspiracy’s full scope and set the sentence (63 months) and restitution.
- On appeal Alisuretove challenged (1) the Guidelines loss amount (arguing he was only a driver/ATM withdrawer, not involved in skimming) and (2) the MVRA restitution calculation (arguing restitution exceeded the objects and temporal scope of the indicted conspiracy).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Guidelines loss amount under U.S.S.G. §2B1.1 | Gov't: loss may include all relevant conduct and reasonably foreseeable co‑conspirator acts | Alisuretove: should be limited to losses from his direct role (driver/withdrawer); his $14,000 receipt suggests lower loss | Affirmed — court may attribute all reasonably foreseeable, jointly‑undertaken conduct; guilty plea admitted conspiracy beginning April 2012; evidence supported ~$360,856.80 loss for Guidelines purposes |
| Restitution scope under MVRA, 18 U.S.C. §3663A | Gov't: restitution may cover victims directly harmed in course of scheme beyond named banks | Alisuretove: restitution should be limited to five banks named as objects and to the indictment’s temporal window (Apr 2012–Jan 2013) | Reversed in part — remanded for resentencing on restitution because district court and PSR did not make required factual findings linking each additional bank’s losses (and temporal ties) to the offense of conviction |
Key Cases Cited
- United States v. Mullins, 613 F.3d 1273 (10th Cir.) (clear‑error review of Guidelines loss findings)
- United States v. Hahn, 551 F.3d 977 (10th Cir.) (standard for reversing factual findings)
- United States v. Griffith, 584 F.3d 1004 (10th Cir.) (restitution limited to loss caused by offense of conviction; relevant conduct rules)
- United States v. Brown, 164 F.3d 518 (10th Cir.) (guilty plea admits material allegations in indictment)
- United States v. Gallant, 537 F.3d 1202 (10th Cir.) (MVRA burden: government must prove loss by preponderance)
- United States v. DeLeon, 728 F.3d 500 (5th Cir.) (restitution limited to temporal scope of charged scheme)
- United States v. Dickerson, 370 F.3d 1330 (11th Cir.) (restitution may be ordered for victims not named in indictment if directly harmed in course of scheme)
- United States v. Reano, 298 F.3d 1208 (10th Cir.) (district court must make factual findings supporting restitution)
- United States v. Sabillon-Umana, 772 F.3d 1328 (10th Cir.) (requirement for individualized restitution findings)
- United States v. Gordon, 710 F.3d 1124 (10th Cir.) (defendant in joint criminal undertaking may be held responsible for co‑conspirators’ reasonably foreseeable acts)