United States v. Luis Ruiz Gainza, 982 F.3d 762

In April–August 2017 Gainza and Gabriele‑Plage installed concealed cameras and skimmers at multiple Golden 1 Credit Union ATMs near Sacramento to capture card data and PINs.
Golden 1’s records showed 852 total ATM visits while skimmers were installed; 37 customers later reported fraud (totaling $20,781.60).
One skimmer was removed by an ATM technician before defendants could retrieve data, and several other intervals produced no fraud reports.
Defendants pled guilty to conspiracy, access‑device fraud, possession of device‑making equipment, and related counts; sentencing focused on loss amount under U.S.S.G. § 2B1.1.
The district court multiplied the number of ATM visitors by the Guidelines’ $500 minimum per access device, finding loss based on 852 (Gainza) and 754 (Gabriele‑Plage) accounts and imposing a 12‑level enhancement.
The Ninth Circuit held the record lacked sufficient evidence that defendants actually obtained account numbers for each visitor, found the district court’s loss finding to be clear error, vacated the sentences, and remanded for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court could count each ATM visitor as an obtained "access device" for loss calculation	Gov’t: number of visitors while skimmers were installed supports a reasonable estimate that defendants obtained those account numbers	Defs: only 37 fraud reports and no direct evidence of obtained account data; counting all visitors is speculative	Court: Reversed — record insufficient to support finding that defendants obtained all account numbers; clear error to apply max visitor count
Whether a "reasonable estimate" of loss may be based on defendants’ sophistication, repeated travel, and possession of equipment absent direct evidence of success	Gov’t: sophistication, repetition, and equipment justify inference of success and use of $500 per device multiplier	Defs: those facts show intent/effort, not proof of success; inference of 100% success is unsupported	Court: Rejected — such circumstantial facts cannot substitute for evidence of skimmer success rate; estimate must rest on facts, not conjecture

United States v. Hornbuckle, 784 F.3d 549 (9th Cir. 2015) (clear‑error standard for factual findings at sentencing)
United States v. Stargell, 738 F.3d 1018 (9th Cir. 2013) (definition of clear error)
United States v. Onyesoh, 674 F.3d 1157 (9th Cir. 2012) (possession of records as proof of obtained card numbers)
United States v. Alisuretove, 788 F.3d 1247 (10th Cir. 2015) (using withdrawals/uses to prove obtained account numbers)
United States v. U.S. Gypsum Co., 333 U.S. 364 (1948) (discussion of "definite and firm conviction" standard for clear error)