United States v. Jimmie Moon, 808 F.3d 1085

Background

Moon pleaded guilty to conspiracy to commit wire fraud arising from obtaining numerous credit-card and gift-card numbers and using some to make fraudulent purchases; other related counts were dismissed per plea.
His plea agreement waived the right to appeal a sentence within the applicable Guidelines range except for preserved objections to the Guidelines calculation or sentences exceeding statutory maximums or based on unconstitutional factors.
Presentence calculations treated loss as intended loss under U.S.S.G. §2B1.1, applying the special rule that counts not less than $500 loss per unauthorized access device, yielding a higher offense level and an advisory range of 110–137 months.
At sentencing Moon’s counsel sought a downward variance arguing the $500-per-device rule overstated loss because many numbers were unusable or unused; counsel expressly agreed with the court’s Guidelines calculations when asked.
The district court denied the variance, finding no policy disagreement with the $500-per-device rule and concluding the Guidelines loss calculation did not overstate the criminality; Moon was sentenced to 96 months and appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Moon waived his right to appeal the substantive reasonableness of his sentence	Moon contends his motion for a downward variance preserved an objection to the Guidelines loss calculation and thus his appeal is permitted	Government argues Moon knowingly waived appeals of sentences within the Guidelines range and did not preserve an objection to the Guidelines calculation	Waiver upheld: Moon conceded the Guidelines calculation at sentencing and only sought a variance, so his appeal of substantive reasonableness is waived
Whether a $500 per unauthorized access device floor may be applied to devices that were unused or arguably unusable	Moon argues the $500-per-device floor overstates loss where many numbers were unusable or unused and thus renders the sentence substantively unreasonable under §3553(a)	Government argues Application Note 3(F)(i) plainly sets a $500-per-device floor for loss without a usability requirement; intended loss may include unlikely or impossible pecuniary harm	Court applies precedent and Guidelines text: no usability requirement; $500 per device is permissible and does not render the sentence substantively unreasonable
Whether the district court abused its discretion under §3553(a) by failing to account for the fictional nature of the $500 per-device loss	Moon asserts automatic application of the $500 floor can produce a sentence greater than necessary under §3553(a) parsimony requirement	Government points to district court’s consideration of §3553 factors and its finding that the calculated loss did not overstate the offense’s seriousness	No abuse of discretion: district court addressed §3553 factors, explained reasons, and did not clearly err; sentence substantively reasonable
Whether Ninth Circuit’s usability approach (Onyesoh) should control	Moon urges adoption of Onyesoh requiring proof of device usability before applying the $500 floor	Government relies on Sixth Circuit authority and other circuits rejecting a usability requirement	Court declines Onyesoh; follows Sixth Circuit and multiple circuits that apply $500 floor irrespective of usability

Key Cases Cited

United States v. Pirosko, 787 F.3d 358 (6th Cir. 2015) (standard for reviewing whether a defendant waived appellate rights)
United States v. Winans, 748 F.3d 268 (6th Cir. 2014) (defendant may waive constitutional rights in plea agreement; interpret waivers using contract principles)
Stinson v. United States, 508 U.S. 36 (1993) (Sentencing Guidelines commentary is authoritative unless inconsistent with statute or Constitution)
Peugh v. United States, 133 S. Ct. 2072 (2013) (sentence-reasonableness review is for abuse of discretion)
United States v. Robinson, 778 F.3d 515 (6th Cir. 2015) (definition of substantive reasonableness and presumption for within-Guidelines sentences)