627 F. App'x 659
9th Cir.2015Background
- Lancelot Wilburn was convicted of multiple offenses including possession of 15+ counterfeit or unauthorized access devices (18 U.S.C. § 1029), possession of device-making equipment, use of a counterfeit access device, and aggravated identity theft (18 U.S.C. § 1028A).
- At sentencing the district court applied a 12-level Guidelines enhancement under U.S.S.G. § 2B1.1(b)(1)(G) based on a $385,000 loss calculation, equating to possession of 770 access devices (counting $500 per device).
- The Government filed a loss analysis after the deadline for objections to the Presentence Report; Wilburn argues this violated Fed. R. Crim. P. 32 and that he was prejudiced.
- Wilburn also challenged the district court’s factual findings: (1) that he possessed 770 access devices, and (2) that the devices were usable; he argued the court double-counted duplicate account numbers and failed to find usability.
- The district court found by a preponderance of the evidence that Wilburn possessed 770 access devices and treated them as usable; Wilburn declined the court’s offer to continue sentencing to respond further.
- The Ninth Circuit affirmed, holding any Rule 32 violation caused no prejudice and that even assuming duplicates were discounted, at least 471 unique account numbers remained supporting the same Guidelines enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Late submission under Fed. R. Crim. P. 32 | Gov't: late loss analysis was considered but Wilburn had chance to respond | Wilburn: Gov't violated Rule 32 and prejudiced sentence | No reversible error; no prejudice because Wilburn had opportunity to respond and declined continuance |
| Number of access devices for loss calc | Gov't: 770 devices → $385,000 loss → 12-level increase | Wilburn: court double-counted duplicates across sources (cards, notebook, downloads) | Harmless if error: even without duplicates at least 471 unique devices → same 12-level increase |
| Usability of access devices | Gov't: evidence showed devices were usable and intended for use | Wilburn: court made no explicit finding on usability | Court’s finding that Wilburn possessed 770 devices implies usability; supported by admissions and evidence of readiness to use |
| Standard of review for Guidelines facts | Gov't: factual findings reviewed for clear error; legal construction de novo | Wilburn: challenges factual findings as erroneous | Ninth Circuit applied de novo/legal and clear-error/factual standards and found no reversible error |
Key Cases Cited
- United States v. Cantrell, 433 F.3d 1269 (9th Cir. 2006) (standards of review for Guidelines interpretation and factual findings)
- United States v. Garro, 517 F.3d 1163 (9th Cir. 2008) (loss calculation is a factual finding reviewed for clear error)
- United States v. Nguyen, 81 F.3d 912 (9th Cir. 1996) (approach to counting multiple sources of account numbers for loss calculations)
- United States v. Onyesoh, 674 F.3d 1157 (9th Cir. 2012) (definition and sufficiency of proof for an "access device" being usable)
AFFIRMED.