598 F. App'x 264
5th Cir.2015Background
- Cardenas and Carrillo-Torres pleaded guilty to conspiring to commit fraud with counterfeit access devices; district court set base level and applied upward adjustments.
- INB alerted police to ATM fraud scheme; one stolen white card with PIN and hundreds of thousands in suspicious withdrawals.
- Police recovered $458,276.34 in actual losses and a flash drive with 7,197 unaccessed account numbers.
- PSR proposed 18-level loss adjustment for intended loss (~$4,056,776.34) and 6-level victim adjustment (>250 victims).
- Court adopted the intended-loss figure and applied both upward adjustments, sentencing both defendants to 108 months, within statutory max of 120.
- Appellants challenge the 18-level adjustment for $500 per unused account number and the 6-level victim adjustment for the flash-drive numbers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether $500 per account applies to unused access devices | Cardenas argues $500 applies only to used devices | Cardenas claims commentary requires actual use, not mere possession | The $500 minimum applies to both used and unused devices |
| Whether 7,197 means of identification qualify as victims | Carrillo-Torres asserts victims require actual use of means | Government argues possession/transmission suffices to count as victims | Acquisition/possession alone does not satisfy use; victims not established for this adjustment |
| Whether the error in the victim calculation was harmless | Government must show same sentence would be imposed under correct range | Error cannot be shown harmless given sentence tied to miscalculated range | Error not harmless; Carrillo-Torres vacated and remanded |
Key Cases Cited
- Bailey v. United States, 516 U.S. 137 (U.S. 1995) (uses of 'use' require active employment, not mere possession)
- Watson v. United States, 552 U.S. 74 (U.S. 2007) (possession before use is not active employment; obtaining items not itself use)
- Ratzlaf v. United States, 510 U.S. 135 (U.S. 1994) (ordinary meaning of terms and avoiding superfluous readings in text)
- Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (U.S. 1991) (avoid rendering parts of statute superfluous)
- United States v. Onenese, 542 F. App’x 427 (5th Cir. 2013) (per curiam; uses interpretation guidance in this area)