United States v. Jose Cruz
713 F.3d 600
| 11th Cir. | 2013Background
- Jose and Lisandra Cruz were convicted on four counts related to credit card skimming and fraudulent purchases connected to co-defendants Marchante and Toledo.
- Toledo skimmed credit cards; Jose and Marchante paid for skimmed numbers; a skimmer device was exchanged for cash and gifts.
- Lisandra worked at Target and processed transactions involving multiple fraudulent card numbers, including purchases of gift cards, under Jose’s guidance.
- Surveillance and records showed Lisandra processed numerous transactions for a single male/female pair using many card numbers, including discounts on her own purchases using stolen gift cards.
- The district court imposed enhancements for loss amount, number of victims, device-making equipment, and Lisandra’s abuse of trust, resulting in substantial sentencing for both Jose and Lisandra.
- The district court sentenced Jose to 75 months (with consecutive 24 months on related counts) and Lisandra to 45 months (with consecutive 24 months on related counts).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2B1.1(b)(10) may be applied with § 2B1.6 for § 1028A offenses | Cruzs contend § 2B1.6 bars double counting via ‘relevant conduct.’ | Court may apply both § 2B1.6 and § 2B1.1(b)(10) since device-making equipment falls outside the § 2B1.6 relevant conduct. | Yes; district court may apply the § 2B1.1(b)(10) enhancement. |
| Whether the device-making equipment enhancement was properly applied to Lisandra | Lisandra argues no evidence she knew about the skimmer; thus no enhancement. | Cruzs argue knowledge can be inferred from co-conspirator actions and living at shared address with related items. | District court did not err in applying the device-making equipment enhancement. |
| Whether Lisandra properly received an abuse-of-trust enhancement | Lisandra claims no discretionary authority to abuse; no fiduciary relationship. | Note 2(B) extends to abuse when position was used to facilitate use of identification information. | Yes; court did not err in applying abuse-of-trust enhancement. |
Key Cases Cited
- United States v. Jones, 551 F.3d 19 (1st Cir. 2008) (guideline 2B1.6 commentary limits, not absolute bar on 2B1.1(b)(10) for underlying offenses)
- United States v. Sharapka, 526 F.3d 58 (1st Cir. 2008) (2B1.6 does not bar device-making equipment enhancements)
- United States v. Jenkins-Watts, 574 F.3d 950 (8th Cir. 2009) (supports dual enhancements where 2B1.6 does not exclude all § 2B1.1(b)(10) conduct)
- United States v. Abdelshafi, 592 F.3d 602 (4th Cir. 2010) (applies application note 2 to § 3B1.3 abuse-of-trust in some contexts)
- United States v. Zaldivar, 615 F.3d 1346 (11th Cir. 2010) (reasonableness of holding co-conspirator's acts foreseeably tied to offense)
- United States v. Auguste, 392 F.3d 1266 (11th Cir. 2004) (credit cards as means of identification for sentencing purposes)