United States v. Rueda, 933 F.3d 6

In 2016 investigators found a laptop with nine text files containing 2,732 credit-card numbers; 2,580 of those were linked to identifiable financial institutions. Related physical evidence included stolen cards, skimming equipment, and merchandise.
Rueda pleaded guilty to conspiracy to commit access-device fraud under 18 U.S.C. § 1029 and a PSR applied U.S.S.G. § 2B1.1, treating each of the 2,580 identified card numbers as unauthorized/counterfeit access devices and assigning a $500 minimum loss per device (total $1,290,000), yielding a GSR of 37–46 months.
Rueda objected, arguing the government failed to prove each number met the statutory “access device” usability requirement (i.e., “can be used … to obtain money, goods, services”), so only actual losses shown ($24,673.60 from eight banks) should count.
The District Court adopted the PSR loss calculation but sentenced Rueda to a much shorter variant sentence (four months) and ordered restitution of $24,673.60; Rueda appealed the guidelines interpretation.
The First Circuit reviewed de novo and affirmed, holding Application Note 3(F)(i) requires attributing at least $500 per counterfeit/unauthorized device even if the device was not actually charged or its successful usability not proved.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Application Note 3(F)(i)'s $500-per-device floor applies only to devices shown to be "usable" under 18 U.S.C. § 1029(e)(1)	Rueda: gov't must prove each number "can be used" to obtain value; absent that, cannot apply $500 floor to all 2,580 numbers	Gov't: Application Note 3(F)(i) expressly covers "counterfeit" and "unauthorized" devices; plain text and related definitions encompass devices not actually used	Held: $500 minimum applies to each counterfeit/unauthorized device; no separate proof of successful usability required for non-telecom devices
Whether the $500 minimum applies only to devices actually charged during the offense	Rueda: the clause "includes any unauthorized charges" means the $500 floor should attach only to devices that were actually charged	Gov't: the sentence structure makes "loss" both include unauthorized charges and be "not less than $500 per access device," covering intended or unused devices	Held: $500 floor is independent of actual charges; it covers possessed counterfeit/unauthorized devices (telecom possession exception noted elsewhere)

United States v. Flores-Machicote, 706 F.3d 16 (1st Cir.) (standard of review for guideline interpretation)
United States v. Moon, 808 F.3d 1085 (6th Cir.) (Application Note 3(F)(i) covers counterfeit/unauthorized devices without a strict usability requirement)
United States v. Onyesoh, 647 F.3d 1157 (9th Cir.) (discusses usability evidence but does not require proof of successful charging in all contexts)
United States v. Cardenas, [citation="598 F. App'x 264"] (5th Cir.) (Application Note 3(F)(i) does not require actual use of device)
United States v. Thomas, 841 F.3d 760 (8th Cir.) (same conclusion re: $500 floor applying to unused devices)
United States v. Gilmore, [citation="431 F. App'x 428"] (6th Cir.) (plain language sets $500 floor per device regardless of actual use)
United States v. Popovski, 872 F.3d 552 (7th Cir.) (district court may adjust sentence if Application Note calculation overstates offense seriousness)