424 F. App'x 730
10th Cir.2011Background
- Heath pleaded guilty, without a plea agreement, to conspiracy to commit fraud in connection with access devices and was sentenced to 32 months’ incarceration and 36 months’ supervised release; he challenges the sentence on procedural grounds.
- The PSR: base offense level 6; upward adjustments: 10-level for intended loss ($143,000), 2-level for possession/use of a device, and 4-level leader/organizer; actual loss was $1,387.65 but intended loss relied on 286 access devices.
- District court overruled Heath’s objections, held Heath possessed 286 access devices, and applied $143,000 intended loss and the 10-level adjustment, plus a 4-level organizer enhancement.
- Heath’s conduct included obtaining credit card numbers, distributing them, manufacturing counterfeit cards, and directing others in hotel-room fraud and card verification activities; five other participants involved.
- Final sentence: 32 months’ imprisonment, 36 months’ supervised release, and restitution of $765.09 joint and several; Heath appeals argument on both adjustments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 286 account numbers are access devices under 18 U.S.C. 1029(e)(1) | Heath contends numbers alone are not access devices | Numbers fit the statutory definition of access devices; loss calculated from 286 devices | 286 access devices; ten-level adjustment proper |
| Whether the four-level organizer/leader enhancement is supported | PSR does not show Heath controlled or organized others | PSR shows Heath recruited, taught, and coordinated others | Evidence supports being an organizer; four-level enhancement affirmed |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (U.S. Supreme Court 2007) (establishes reasonableness review and guidelines calculation framework)
- United States v. Roberts, 14 F.3d 502 (10th Cir. 1993) (two-part test for organizer/leader enhancement)
- United States v. Spears, 197 F.3d 465 (10th Cir. 1999) (definition of organizer/leader and applicable factors)
- United States v. Hamilton, 587 F.3d 1199 (10th Cir. 2009) (de novo review of Guidelines application; factual findings reviewed for clear error)