United States v. Hamza Bendelladj
710 F. App'x 384
| 11th Cir. | 2017Background
- Hamza Bendelladj was sentenced to 180 months for conspiracy to commit wire and bank fraud, multiple counts of wire fraud, conspiracy to commit computer fraud, and multiple counts of computer fraud and abuse.
- At sentencing the District Court applied a two-level "fence" enhancement under U.S.S.G. § 2B1.1(b)(4) for receiving and selling stolen property. Bendelladj did not preserve a challenge to that enhancement.
- The District Court treated Bendelladj’s separate breach of 123refills.net (123Refills) as relevant conduct, linking it to his use of SpyEye malware and his broader hacking scheme.
- The court calculated loss by counting numerous credit-card records (access devices), including incomplete and expired records, resulting in a Guidelines loss in the $65M–$150M bracket (24-level enhancement).
- Bendelladj appealed, arguing (1) the fence enhancement was improper because he sold data he stole himself, (2) the 123Refills breach was not sufficiently related to the conduct underlying the indictment, and (3) the loss calculation improperly included incomplete/expired card records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of § 2B1.1(b)(4) "fence" enhancement | Bendelladj: enhancement improper because he sold data he himself stole, not property stolen by others | Government: enhancement applies to persons in business of receiving/selling stolen property (applied by district court) | Not reviewed on appeal due to invited-error doctrine (defendant told court only loss amount needed resolution) |
| Whether 123Refills breach is relevant conduct | Bendelladj: breach not sufficiently related to SpyEye-based charged conduct | Government: breach occurred during same hacking course, similar modus operandi and victims | No clear error: breach was part of common scheme/ same course of conduct and District Court did not clearly err in treating it as relevant conduct |
| Inclusion of incomplete and expired card records in loss | Bendelladj: expired/incomplete records should not count toward access-device loss | Government: statutory definition of access device includes expired devices; evidence showed expired records could still be used | No clear error: statutory definition supports including expired devices; court adjusted for defects and made a reasonable loss estimate |
| Standard of review for sentencing issues | Bendelladj: (preservation arguments) | Government: preserved issues reviewed de novo/factual findings for clear error; unpreserved reviewed for plain error | Court applied invited-error and clear-error standards as appropriate; affirmed sentence |
Key Cases Cited
- United States v. Arguedas, 86 F.3d 1054 (11th Cir. 1996) (standard for reviewing district court’s application of Guidelines and factual findings)
- United States v. Straub, 508 F.3d 1003 (11th Cir. 2007) (plain-error review for unpreserved sentencing claims)
- United States v. Cobb, 842 F.3d 1213 (11th Cir. 2016) (invited-error doctrine precludes reversal where a party induced the court to err)
- United States v. Siegelman, 786 F.3d 1322 (11th Cir. 2015) (definition and scope of relevant conduct at sentencing)
- United States v. Maxwell, 579 F.3d 1282 (11th Cir. 2009) (clear-error standard for loss amount determination)
- United States v. Campbell, 765 F.3d 1291 (11th Cir. 2014) (district court’s leeway in estimating loss; government’s burden by preponderance)
- United States v. Grant, 431 F.3d 760 (11th Cir. 2005) (reasonable estimates of intended loss upheld; courts must avoid speculation)