UNITED STATES, Appellee, v. Michael RAVELO, Defendant-Appellant.
No. 03-1199, 03-1253.
United States Court of Appeals, Second Circuit.
Argued: Jan. 8, 2004. Decided: June 2, 2004. Amended: June 3, 2004.
370 F.3d 266
Pamela Chen, Assistant United States Attorney for the Eastern District of New York (Roslynn R. Mauskopf, United States Attorney, Susan Corkery, Assistant United States Attorney, of counsel), Brooklyn, NY, for Appellee.
Before: VAN GRAAFEILAND, SACK, and RAGGI, Circuit Judges.
RAGGI, Circuit Judge, filed a concurring opinion.
SACK, Circuit Judge.
The defendant-appellant Michael Ravelo appeals from a judgment of the United States District Court for the Eastern District of New York (John Gleeson, Judge) convicting Ravelo, after a plea of guilty, of conspiracy to commit assault in aid of racketeering, under
BACKGROUND
At all relevant times, Ravelo was a member of the Luquer Street Boys, a Brooklyn, New York, street gang. On July 1, 1999, Ravelo, together with other members of the gang, traveled in one of a caravan of two automobiles to a hangout of the Hard Pack, a rival street gang. The purpose of the trip, according to Ravelo, was to “go beat up” members of the Hard Pack “with bats and golf clubs, among other weapons[,] in retaliation for a prior altercation between the two groups.” Tr. of Pleadings Before Hon. Marilyn D. Go, Mar. 13, 2002 (“Plea Tr.“), at 25-26. Although one of the two automobiles belonged to Ravelo, on instructions of a superior, another gang member drove that car.
Before departing, Ravelo expected a fight, but he did not, according to his lawyer, anticipate gunfire. While en route, however, Ravelo learned that another passenger was armed. Ravelo nonetheless continued to participate in the planned assault.
As the Luquer Street Boys’ caravan drove by the Hard Pack hangout, a member or members fired shots from the caravan, and members of the Hard Pack returned fire. The members of the Luquer Street Boys then fled the scene. Although, fortuitously, no one was injured during the exchange of fire, shortly thereafter Thomas Palazatto, a member of the Luquer Street Boys, was shot and killed, apparently by Hard Pack members in retaliation for the shootout that the Luquer Street Boys had initiated.
On June 27, 2001, New York City police officers arrested Ravelo on unrelated state
Based on his participation in the shootout, Ravelo was charged in an information filed in the United States District Court for the Eastern District of New York with conspiracy to commit assault in aid of racketeering in violation of
Between June 2002 and September 2002, while Ravelo was free on bail on the conspiracy and false statement charges, he used the social security numbers of his landlord, Riqi Wang, and others to apply fraudulently for credit cards that he then used in multiple attempts to transfer money to himself via Western Union. Ravelo fraudulently obtained at least eight credit cards issued under the names of eight different persons. Two of these cards—the “Heenan card” and the “Wang card“—appear to have had cash-advance limits of $6,000 and $600 respectively. Ravelo made nine unsuccessful attempts to obtain either $500 or $600 using the Wang card on July 21 and 23, 2002. On August 17 and 18, 2002, he made seven attempts, also all unsuccessful, to use the Heenan card to obtain various amounts each approximating $6,000. On the basis of these failed attempts to transfer money to himself, and other uses of fraudulently procured credit cards not at issue in this appeal, Ravelo was charged by information in the United States District Court for the Eastern District of New York with one count of credit card fraud under
On March 14, 2003, Ravelo appeared before the district court for sentencing with respect to the crimes charged in both informations. The court determined that Ravelo‘s criminal history category was III, and that his total offense level was 20, resulting in a Guidelines imprisonment range of 41 to 51 months. On the assault count, the court imposed a sentence of 36 months’ imprisonment, the statutory maximum, and one year‘s supervised release. On each of the false statement and credit card fraud counts, the court imposed a sentence of 48 months’ imprisonment and three years’ supervised release. The court noted that it had the power under the Guidelines to impose consecutive sentences for the crimes charged in the two informations. Agreeing with Ravelo and the government, however, and in light of Ravelo‘s enrollment in a substance abuse program, the court decided not to do so, observing that it had been persuaded “not to separate these Siamese twins we‘ve got here.” Tr. of Sentencing Hearing Before Hon. John Gleeson, Mar. 14, 2003 (“Sentencing Tr.“), at 22.3 The result was a net sentence of 48 months’ imprisonment and three years’ supervised release. The district court also imposed a $300 special assessment, and ordered Ravelo to make restitution in the amount of $37,345.82, reflecting the harm caused by successful fraudulent credit-card transactions conducted by him and by a co-conspirator.
On appeal, Ravelo challenges two determinations made by the district court in calculating his offense level: (1) its rejection of Ravelo‘s application for a minor role adjustment pursuant to
DISCUSSION
I. Standard of Review
We review a district court‘s factual findings made in the course of imposing a sentence under the Guidelines for clear error and the application of the Guidelines to those findings for abuse of discretion, unless the application presents a purely legal question, in which case we employ a de novo standard of review. United States v. Deming, 269 F.3d 107, 109 (2d Cir. 2001). A district court‘s legal interpretation of the Guidelines is subject to de novo review. United States v. Mullings, 330 F.3d 123, 124 (2d Cir. 2003).
II. Minor Role Adjustment
An adjustment for a defendant‘s minor role under
According to the district court:
[Ravelo‘s] role in [the conspiracy to commit assault in aid of racketeering] was integral. He provided the car. . . . He was part of a gang. He went to pick up fellow gang members, to find some members of a rival gang to assault. It was obviously foreseeable to him that other—that any dangerous weapons available, whether it‘s bats or golf clubs or firearms, would be used. He‘s lucky no one was hurt, despite the shoot-out. There is no merit whatsoever to the argument that he should receive a mitigating role adjustment. I reject it.
Sentencing Tr. at 5. There is no basis for Ravelo‘s argument that the district court‘s findings of fact in this regard are erroneous, let alone clearly so.
In applying the law to these facts, the district court did not abuse its discretion in declining to characterize Ravelo‘s role in the assault crime as “minor.” This conclusion is fully supported by the court‘s findings that Ravelo was a member of a gang, knew the gang was going to attack a rival gang, supplied a car, and provided support by his presence as a passenger in the car, even if he did not commit or intend to commit the assault himself.
Ravelo‘s contention that he was only following orders does not require a contrary conclusion. Perhaps it indicates that Ravelo did not conceive the crime, but it does not show that he was “substantially less culpable than the average participant.” Jeffers, 329 F.3d at 103; see also Yu, 285 F.3d at 200 (stating that “to be eligible for a reduction, the defendant‘s conduct must be ‘minor’ . . . as compared to the average participant in such a crime” (internal quotation mark omitted)); Shonubi, 998 F.2d at 90 (concluding that it was not clearly erroneous for a district court to decide that a “lowly courier” was not entitled to a minor role adjustment on the basis of status).
III. Loss Calculation
Under
Subject to certain exceptions not applicable here, “loss” in this context is defined as “the greater of actual loss or intended loss.”
(I) means the pecuniary harm that was intended to result from the offense; and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur (e.g., as in a government sting operation, or an insurance fraud in which the claim exceeded the insured value).
The United States Sentencing Commission added the definition of “intended loss” in
Although there is no direct documentary evidence in the record to this effect, the district court appeared to accept Ravelo‘s representation that two of the credit cards involved in Ravelo‘s scheme—the Heenan card and the Wang card—had cash-advance limits of $6,000 and $600 respectively. Ravelo made seven attempts, all unsuccessful, to use the Heenan card to obtain various amounts approximating $6,000; he also made nine unsuccessful attempts to obtain either $500 or $600 using the Wang card. Ravelo contends that these unsuccessful attempts represent a total intended loss of $6,600. He reasons that the maximum amount of loss he sought to cause to his intended victims by his use of the cards was the maximum the banks would have advanced to him under the cards’ limits: $6,000 + $600 = $6,600. The government successfully argued in the district court to the contrary: In its view, each unsuccessful attempt to withdraw $6,000 using the Heenan card or $600 using the Wang card was an independent attempt to cause loss. The court therefore concluded that all of the attempts to cause loss should have been added together to determine the total intended loss.
The district court‘s view of the matter is reflected in the following exchange:
MR. WILLSTATTER [Ravelo‘s counsel]: . . . We believe—we know with respect to the Heenan and Wang cards that the Wang card had six hundred dollars cash advance limit. The Heenan card had a six thousand dollar cash advance limit, which is why there were attempts to get—to get that amount of money. So we think that it highly exaggerates the loss in the case to say that because Michael Ravelo tried six [sic] times to get the approximately six thousand dollars, that that‘s forty-two thousand dollars in loss. . . .
THE COURT: I am intrigued by the premise to your argument. Suppose I need a hundred thousand dollars. I go and try to rob ten banks and each time I go I can‘t get any money. Is my intended loss—are you saying my intended loss is only a hundred thousand dollars even though I tried to rob a hundred thousand dollars ten times?
MR. WILLSTATTER: This is not a bank robbery. . . .
THE COURT: . . . I don‘t buy the premise. Every single time he unsuccessfully sought to use the card on that occasion he intended a six hundred dollar loss. You aggregate those, those are separate acts. I see nothing in this guideline that says simply because he‘s unsuccessful and tries again we should only count his intent once.
MR. WILLSTATTER: Well, respectfully, the reason I think that the guidelines say that is because the guidelines focus on the intended loss.
THE COURT: Right.
MR. WILLSTATTER: The defendant‘s intent was to get the six thousand dollars in the case of the Heenan card.
THE COURT: How many times did he bear that intent, how many separate occasions?
THE COURT: That‘s what I am counting.
Sentencing Tr. at 8-11.
Under the district court‘s view, when combined with other losses occasioned by the fraud perpetrated by Ravelo and his co-conspirator, Ravelo‘s intended loss with respect to the Heenan and Wang cards put the total loss for Guidelines purposes over the $70,000 mark, requiring an 8-point upward adjustment. Under Ravelo‘s view, the total loss was more than $30,000 but not greater than $70,000, requiring only a 6-point upward adjustment.
We have considerable doubt about some aspects of the district court‘s approach, as we understand it, at least in the abstract. If a person seeks to use a credit card fraudulently to draw down what he or she thinks to be the maximum cash-advance limit on the card, we doubt that the number of attempts it turns out he or she must make to obtain the funds can affect what the person intends to gain and what he or she correspondingly intends the victim to lose: the card‘s limit. If Ravelo knew, for example, that the Heenan card had a $6,000 maximum cash-advance limit and it took him ten tries to obtain that $6,000, we do not understand why the loss he intended must necessarily be assessed at ten times what it would have been had he struck paydirt on his first attempt. Had Ravelo been attempting to sell the fraudulent card rather than trying to obtain a cash advance on it, surely the fact that he was unable to complete a transaction until his tenth approach to a prospective buyer would not mean he necessarily intended to impose a loss ten times the amount had he sold the card to his first prospective buyer. The number of attempts required to complete a crime may reflect at most the criminal‘s level of competence at the crime attempted, particularly when the repeated attempts occur within a relatively short period of time. It would seem odd at best to read the Guidelines to the contrary, requiring a sentence the severity of which varies inversely with the skill of the perpetrator.4
Whatever our concerns in the abstract, however, the concrete question is not before us. By letter dated the day before Ravelo‘s sentencing hearing, the government put Ravelo on notice that it was the government‘s position that the evidence did not support the conclusion that he had an intention of stopping at the credit limits of the cards.5 Ravelo argued
Ravelo suggests that the district court should nonetheless have drawn those inferences. For support, he points to the fact that the district court was apparently aware that he had made repeated attempts to withdraw amounts approximating the cash-advance limits on the Heenan and Wang cards. Sentencing Tr. at 9; Appellant‘s Br. at 19. But while that might suggest that Ravelo knew the cash-advance limits of those cards, his attempts to obtain funds in amounts approximating those limits do not necessarily tend to establish that, had he been successful in one of those attempts, he would not have made further repeated attempts to use the relevant card. In the absence of direct evidence of the kind described above, it would be speculative to conclude from Ravelo‘s assertions regarding cash-advance limits of the cards that he intended to impose a total loss no greater than those limits.6
Finally, the fact that it would have been impossible for Ravelo to have drawn down more than $6,600 on the Heenan and Wang cards does not matter. The relevant loss amount is the “pecuniary harm that was intended to result from the offense . . . includ[ing] intended pecuniary harm that would have been impossible.”
CONCLUSION
For the foregoing reasons, the judgment of conviction and sentence of the district court is hereby affirmed.
RAGGI, Circuit Judge, concurring in part and concurring in the judgment.
Like the majority, I conclude that there was no error in sentencing in this case. I join in the court‘s opinion except for the paragraph expressing, in dicta, “considerable doubt about some aspects of the dis-
A district court applying Sentencing Guideline 2B1.1 to crimes involving fraud confronts no easy task. The guideline occupies four pages in the Sentencing Manual, followed by sixteen pages of application notes. Some of the most challenging issues arise in connection with the required calculation of “loss.”
Calculating intended loss in cases where a defendant uses a single financial instrument or access device in multiple attempts to commit fraud presents particular challenges. As the majority observes, cumulative loss calculation in some cases of unsuccessful attempts risks overstating the seriousness of the crime. On the other hand, ignoring multiple attempts in calculating intended loss risks understating the seriousness of the offense in a way that is equally unsatisfactory. The majority brushes aside this concern, stating that multiple attempts to achieve the same fraudulent objective “may reflect at most the criminal‘s level of competence at the crime attempted.” Maj. Op. at 272. I see the matter differently. Multiple attempts demonstrate more than the defendant‘s haplessness; they demonstrate his strong commitment to crime. After all, each of the defendant‘s attempts to defraud constitutes a separate and distinct violation of the law, and an offense committed through multiple criminal acts may well be deemed more serious for purposes of sentencing than an offense involving a single infraction of law. To ignore this fact is to send would-be criminals a message that if at first they do not succeed in their illicit objectives, by all means try again because successive attempts to violate the law are “free.”
Although neither a system of loss calculation that cumulates all attempts nor one that merges all attempts is wholly satisfactory as a means of measuring the seriousness of a fraud offense, the former approach, as the starting point for determining intended loss, finds support in the guidelines. Application Note 3(A)(ii) to
To the extent a cumulative calculation of intended loss may overstate the severity of some multiple attempt offenses, the guidelines anticipate this problem by specifically authorizing downward departures. See
For these reasons, I do not join in the majority‘s expression of concern about the cumulative loss approach taken by the district court in this case.
Notes
§ 1959. Violent crimes in aid of racketeering activity
(a) Whoever, as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value from an enterprise engaged in racketeering activity, or for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished—
. . . .
(6) for attempting or conspiring to commit a crime involving maiming, assault with a dangerous weapon, or assault resulting in serious bodily injury, by imprisonment for not more than three years or a fine of [sic] under this title, or both.