UNITED STATES OF AMERICA, Appellee, v. MIGUEL JESURUM, aka Miguel Argenys Jesurun Tejada, aka rommyke2000@yahoo.com, Defendant-Appellant.
Docket No. 14-4464-cr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
April 14, 2016
August Term, 2015 (Submitted: February 8, 2016)
Affirmed and remanded.
RANDALL D. UNGER, Bayside, NY, for Defendant-Appellant.
GEORGE D. TURNER and ANNA M. SKOTKO, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
POOLER, Circuit Judge:
On March 26, 2014, defendant-appellant Miguel Jesurum pleaded guilty to a two-count indictment charging him and three codefendants with wire fraud conspiracy in violation of
BACKGROUND
I. The Criminal Scheme
On June 20, 2012, Jesurum and three codefendants were charged by grand jury with a two count indictment. Count 1 charged Jesurum and his codefendants with wire fraud conspiracy in violation of
The basis for Jesurum’s conviction was his participation in a large-scale cell phone cloning scheme, defrauding Sprint and Sprint customers. The presentence investigation report (“PSR”) described the scheme as follows. Sprint, a cell phone provider, uses telephone towers to allow its customers to place calls. Sprint recognizes cell phones by two unique identifiers that are programmed into every cell phone that can access the Sprint network: a Mobile Station ID (“MSID”) and an Electronic Serial Number (“ESN”). When a customer tries to place a call using the Sprint network, the cell phone tower will look for the MSID and ESN and will only place the call if the Sprint network recognizes the MSID and ESN as belonging to a Sprint customer. Sprint tracks its customers’ cell phone use by their MSID and ESN numbers and bills its customers based on their use of the network.
In a cell phone cloning fraud, such as this one, the perpetrator of the fraud steals or fraudulently obtains the necessary information—here, a Sprint customer’s MSID and ESN—to place calls on the network. He then programs a different phone with the Sprint customer’s MSID and ESN, so that calls made from the cloned phone appear to Sprint to be coming from the customer’s phone,
At the plea hearing, Jesurum admitted to conspiring with others to use the “cell phone identifiers of various providers’ customers without the authorization to make unauthorized calls.” App’x at 44. He admitted that the plan was carried out in part over interstate email and telephone. As to the identity theft charge, Jesurum stated that, between 2009 and 2012, “in order to carry out this wire fraud crime, [he] used with unlawful authority the unique cellular identifiers of telephone service providers’ customers without authorization to do so.” App’x at
II. Sentencing
Jesurum was sentenced on November 21, 2014. At sentencing, as is relevant here, the district court applied a six-level enhancement pursuant to 2014 U.S.S.G.
DISCUSSION
I. Procedural Unreasonableness Challenge
Jesurum challenges his sentence as procedurally unreasonable. We review a sentence for procedural reasonableness under a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “A sentence is procedurally unreasonable if the district court ‘fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence.’” United States v. Aldeen, 792 F.3d 247, 251 (2d Cir. 2015) (quoting United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013)).
The PSR recommended applying a six-level enhancement under 2014 U.S.S.G.
Jesurum focuses on Application Note 1, and argues that because there was no evidence of any financial harm to Sprint customers whose cell phone identifiers were used, the only victim of the scheme was Sprint itself and the six-level enhancement was therefore inappropriate. But the cases on which Jesurum relies dealt with offenses governed by versions of the Guidelines that were applicable before the definition of victim was amended to include “any individual whose means of identification was used unlawfully or without authority.”
Jesurum primarily relies on United States v. Abiodun, 536 F.3d 162 (2d Cir. 2008), where we held that the district court erred in counting victims whose loss amounts were not included in the loss calculation, because “victim” was defined solely as “any person who sustained any part of the actual loss determined under subsection (b)(1).” Id. at 169. This reasoning is simply not relevant because the definition of “victim” was expanded in 2009, partly in response to Abiodun, to include “any individual whose means of identification was used unlawfully or without authority.” Indeed, the reason given by the Sentencing Commission for the amendment was to “expand[] . . . the definition of victim.” U.S.S.G. app. C., Vol. III, amend. 726, at 309. The Commission explained:
[T]he amendment amends the Commentary to §2B1.1 to provide that, for purposes of the victims table in subsection (b)(2), an individual whose means of identification was used unlawfully or without authority is considered a “victim.” . . . An identity theft case may involve an individual whose means of identification was taken and used but who was fully reimbursed by a third party (e.g., a bank or credit card company). Some courts have held that such an individual is not counted as a “victim” for purposes of the victims table at §2B1.1(b)(2). See . . . United States v. Abiodun, 536 F.3d 162 (2d Cir. 2008) . . . . The Commission determined that such an individual should be considered a “victim” for purposes of subsection (b)(2) because such an individual, even if fully reimbursed, must often spend significant time resolving credit problems and related issues,
and such lost time may not be adequately accounted for in the loss calculations under the guidelines.
Id. at 309-10.
Here, the district court did not err in holding that the offense involved 250 or more victims because the evidence demonstrated that more than 250 Sprint customers’ means of identification, here MSIDs and ESNs, were used without authority. Pursuant to Application Note 4, victim includes “any individual whose means of identification was used unlawfully or without authority.” 2014 U.S.S.G.
No one disputes that MSIDs and ESNs are “means of identification” under Application Note 4. The district court therefore correctly counted as victims Sprint customers whose MSIDs and/or ESNs were taken and used, regardless of whether the customers suffered any financial loss. See United States v. Harris, 791 F.3d 772, 780 (7th Cir. 2015) (“[T]he district court correctly counted as victims individuals whose identification was used without authority, in addition to those who suffered actual monetary loss.”); United States v. Maxwell, 778 F.3d 719, 734 (8th Cir. 2015) (“[The defendant] . . . argues the district court erred in determining that the number of fraud victims should include more than three hundred identity theft victims because the number of victims should be limited to entities that incurred financial loss. We agree with the district court that the number of victims properly includes persons whose identities were used unlawfully.”), cert denied., 135 S. Ct. 2827 (2015); cf. United States v. Finley, 600 F. App’x 964, 968-69 (6th Cir.) (rejecting the same argument pressed by Jesurum), cert. denied, 135 S. Ct. 1726 (2015); United States v. Adeife, 606 F. App’x 580, 581 (11th Cir. 2015)
Jesurum next argues that the 2015 amendments to the Guidelines provide support for his conclusion that counting the Sprint customers as victims was erroneous. Jesurum contends that he would not have received a six-level enhancement under the amended Guidelines, which were promulgated on April 15, 2015 and went into effect on November 1, 2015, well after Jesurum’s November 21, 2014 sentencing. He therefore argues that it would be manifestly unjust not to apply the amendment retroactively.
Under our case law, we are “required to apply [post-sentence] amendments to the Guidelines that clarify their application on direct review.” United States v. Kirkham, 195 F.3d 126, 131 (2d Cir. 1999); see also, e.g., United States v. Lewis, 93 F.3d 1075, 1080 (2d Cir. 1996). However, we may not, in the first instance, apply post-sentence amendments that embody “a substantive change” to the Guidelines. United States v. Kim, 193 F.3d 567, 578 (2d Cir. 1999). Such amendments may initially be applied retroactively only by a district court. See United States v. Colon, 961 F.2d 41, 45-46 (2d Cir. 1992). We therefore must assess
Section 2B1.1(b)(2) of the 2014 Guidelines provided:
(Apply the greatest) If the offense—
(A) (i) involved 10 or more victims; or
(ii) was committed through mass marketing, increase by 2 levels;
(B) involved 50 or more victims, increase by 4 levels; or
(C) involved 250 or more victims, increase by 6 levels.
2014 U.S.S.G.
(Apply the greatest) If the offense—
(A) (i) involved 10 or more victims;
(ii) was committed through mass-marketing; or
(iii) resulted in substantial financial hardship to one or more victims,
increase by 2 levels;
(B) resulted in substantial financial hardship to five or more victims,
increase by 4 levels; or
(C) resulted in substantial financial hardship to 25 or more victims,
increase by 6 levels.
2015 U.S.S.G
Jesurum also challenges the district court’s application of a four-level enhancement pursuant to
For the foregoing reasons, we reject Jesurum’s challenge to his sentence as procedurally unreasonable, and affirm the orally pronounced sentence.
At the sentencing hearing, the district court stated that Jesurum’s term of imprisonment “will be followed by two years of supervised release on Count 1 and 1 year of supervised release on Count 2, to be served concurrently.” App’x at 242. However, the written judgment states that Jesurum will serve a supervised release term of “3 years on count 1 and 1 year on count 2, to run concurrently.” App’x at 252. Because the oral pronouncement controls, see United States v. Rosario, 386 F.3d 166, 168 (2d Cir. 2004), the Government consented either to modification of the judgment by this Court or to a remand to the district court to fix this error. We therefore remand so that the district court may, in accordance with
We have considered the remainder of Jesurum’s arguments and find them to be without merit. For the foregoing reasons, the sentence imposed orally by the district court hereby is AFFIRMED. We REMAND to the district court for the limited purpose of amending the judgment to conform to the oral sentence.