543 F. App'x 715
9th Cir.2013Background
- Nguyen pleaded guilty to conspiracy to commit computer and access device fraud, access device fraud, possession of >15 unauthorized access devices, aggravated identity theft, and being a felon in possession of a firearm; he was sentenced to 151 months.
- The district court applied the Sentencing Guidelines definition of “victim” in effect at the time of the offense rather than the expanded 2010 definition.
- The presentence report contained disputed factual findings; the court made on-the-record rulings overruling objections and adopting its factual findings.
- The district court applied a 20-level loss enhancement based on an estimate ($500 per access device) and a two-level victims enhancement for ten or more financial-institution victims.
- The court also applied a role-based aggravating adjustment after finding Nguyen recruited and directed others in related schemes.
Issues
| Issue | Nguyen's Argument | Government's Argument | Held |
|---|---|---|---|
| Ex Post Facto challenge to applying a Guidelines definition | Application of newer Guidelines would violate Ex Post Facto | Court applied the definition in effect at offense; sentence unchanged | No violation; sentence consistent with Guidelines at time of offense |
| Compliance with Fed. R. Crim. P. 32 | District court failed to make required express findings on objections | Court made on-the-record, express rulings adopting factual findings and overruling objections | Rule 32 satisfied; no error |
| Loss-amount enhancement (20 levels) | Court should account for likelihood of successful use of devices | Loss may be estimated at $500 per access device; only a reasonable estimate required | Enhancement supported; estimate reasonable |
| Victims and role enhancements (victims ≥10; aggravating role) | Insufficient evidence of ≥10 victim institutions and of organizer/leader role | Victim statements and chat logs show ≥10 institutions; evidence of recruiting/directing others | Both enhancements upheld |
Key Cases Cited
- United States v. Chi Mak, 683 F.3d 1126 (9th Cir. 2012) (standard for Ex Post Facto review on appeal)
- United States v. Herrera-Rojas, 243 F.3d 1139 (9th Cir. 2001) (standard for Rule 32 review)
- United States v. Karterman, 60 F.3d 576 (9th Cir. 1995) (expressness required for Rule 32 findings)
- United States v. Rigby, 896 F.2d 392 (9th Cir. 1990) (interpretation of Rule 32 express findings requirement)
- United States v. Zolp, 479 F.3d 715 (9th Cir. 2007) (standards of review for guideline interpretation and application)
- United States v. Showalter, 569 F.3d 1150 (9th Cir. 2009) (sentencing factfinding standard: preponderance of evidence)
- United States v. Yellowe, 24 F.3d 1110 (9th Cir. 1994) (district court may reasonably estimate loss from access devices)