536 F. App'x 869
11th Cir.2013Background
- Delvis Bermudez pled guilty to conspiracy to commit access device fraud (18 U.S.C. § 1029(b)(2)), possession of access device making equipment (18 U.S.C. § 1029(a)(4)), and six counts of aggravated identity theft (18 U.S.C. § 1028A(a)(1)).
- He recruited accomplices (girlfriend Maite Hernandez and her brother Sergio Diego), provided skimming devices, installed skimming software, and downloaded stolen card numbers to his computer.
- The scheme produced 180 victims (163 individuals and 17 financial institutions); the PSI attributed $124,000 in actual losses to Bermudez’s conduct.
- The district court applied a four-level leadership-role enhancement under U.S.S.G. § 3B1.1(a) and calculated loss consistent with actual charges on counterfeit cards, resulting in a total 75-month sentence.
- Bermudez appealed, arguing (1) the § 3B1.1 leadership enhancement was erroneous and (2) the correct loss amount was $81,500 (calculated as $500 per compromised account).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3B1.1(a) leadership enhancement was proper | Bermudez: he was not an organizer/leader | Government: PSI facts (admitted) show decisionmaking, recruitment, supply of devices, and control over accomplices | Affirmed — no clear error applying leadership enhancement |
| Proper loss amount for guideline calculation under § 2B1.1 | Bermudez: loss should be $500 × compromised accounts = $81,500 | Government: loss is actual unauthorized charges (often > $500), supporting $124,000 | Affirmed — court properly used actual charged amounts, resulting in $124,000 loss |
Key Cases Cited
- United States v. Barrington, 648 F.3d 1178 (11th Cir. 2011) (standard of review for role enhancements)
- United States v. Poirier, 321 F.3d 1024 (11th Cir. 2003) (clear-error standard description)
- United States v. Beckles, 565 F.3d 832 (11th Cir. 2009) (PSI facts deemed admitted absent objection)
- United States v. Yates, 990 F.2d 1179 (11th Cir. 1993) (government burden to prove aggravating role by preponderance)
- United States v. Woodard, 459 F.3d 1078 (11th Cir. 2006) (clear-error review of loss determinations)
- United States v. Willis, 560 F.3d 1246 (11th Cir. 2009) (loss for sentencing is greater of actual or intended loss)