United States v. Jesurum
2016 U.S. App. LEXIS 6752
| 2d Cir. | 2016Background
- Jesurum pled guilty on March 26, 2014 to wire fraud conspiracy and aggravated identity theft.
- District court applied a six-level enhancement under § 2B1.1(b)(2)(C) for 250+ victims after a Fatico hearing.
- District court applied a four-level enhancement under § 3B1.1(a) for organizer/leader with five or more participants.
- Total sentence was 96 months; oral sentence described; written judgment differed on supervised release terms.
- Jesurum challenges procedural reasonableness and retroactivity of amendments; court analyzes victim definition and counts; remands to fix the written judgment to conform with the oral sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the 250+ victims enhancement proper? | Jesurum; 250+ victims supported by MSIDs/ESNs used without authority. | Jesurum; no financial harm shown, thus not 250+ victims. | Yes; victims counted includes MSIDs/ESNs under updated definition. |
| Does using means of identification count as victims even without loss? | Jesurum relied on Abiodun to limit victims to actual loss. | Jesurum emphasizes expanded victim definition post-2009 amendment. | Victims include individuals whose means of identification were used unlawfully. |
| May post-sentence Amendment 792 be applied retroactively on direct review? | Jesurum seeks retroactive application to reduce sentence. | Amendment 792 substantive; cannot be applied on direct review. | Amendment 792 cannot be applied retroactively on direct review; must be raised in district court. |
| Was the 4-level § 3B1.1(a) enhancement properly supported? | Jesurum contends lack of organizer/leader evidence. | Fatico hearing supported finding of organizer/leader with extensive activity. | Not clearly erroneous; supported by record. |
| Should the written judgment be remanded to conform to the oral sentence? | Oral sentence controls; clerical error in judgment. | Government consents to modify judgment per Rule 36. | Remand to amend judgment to conform to the oral sentence. |
Key Cases Cited
- Abiodun, 536 F.3d 162 (2d Cir. 2008) (victims defined broadly; prior Abiodun limitations discussed)
- Rosario, 386 F.3d 166 (2d Cir. 2004) (oral sentence controls over written judgment)
- Kirkham, 195 F.3d 126 (2d Cir. 1999) (post-sentence amendments on direct review treatment)
- Colon, 961 F.2d 41 (2d Cir. 1992) (retroactivity and amendment application framework)
- Paccione, 202 F.3d 622 (2d Cir. 2000) (sufficiency of organizer/leader findings under § 3B1.1)
- Harris, 791 F.3d 772 (7th Cir. 2015) (victims include identification used unlawfully)
- Maxwell, 778 F.3d 719 (8th Cir. 2015) (victims include persons whose identities were used unlawfully)