UNITED STATES, Appellee, v. MEYLISI RUEDA, Defendant, Appellant.
No. 18-1962
United States Court of Appeals For the First Circuit
July 31, 2019
Before Howard, Chief Judge, Thompson and Barron, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Nancy Torresen, U.S. District Judge]
J. Hillary Billings, Assistant Federal Defender was on brief for appellant.
Renee M. Bunker, Assistant United States Attorney, Appellate Chief, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.
I.
Beginning in June of 2016, state and federal law enforcement agencies initiated an investigation into multiple complaints of credit card fraud originating in Maine. Law enforcement agents received information in connection with that investigation that Yaisder Herrera Gargallo, Jose Castillo Febles, Juan Carlos Febles, and Rueda, had, over the span of several months, used fraudulent credit cards to purchase merchandise, gift cards, airline tickets, and to lease rental vehicles.
On June 18, 2016, law enforcement agents stopped a Jeep in Brunswick, Maine that matched the description of a vehicle used during the fraudulent credit card transactions under investigation. Rueda was not in the vehicle when it was pulled over, but Gargallo, Jose Castillo Febles, and Juan Carlos Febles were. The agents questioned the three passengers, who admitted in response that they, along with Rueda, were participants in a fraudulent credit card scheme; that they had traveled from Florida to Maine to undertake that scheme; and that they had stolen credit cards in their possession at the time that they were pulled over.
A search of the vehicle led agents to discover multiple packages of unopened merchandise (e.g., a Dewalt drill set and three iPads), multiple credit cards bearing stolen account information, credit card “skimming” equipment, and a laptop. A forensic search of the laptop revealed nine text files that contained what appeared to be credit card information. Agents identified what they determined were numbers for 2,732 unique credit cards in these files. In addition to the text files, the forensic search of the laptop revealed various programs associated with the manufacture of fake credit cards.
Investigators were able to identify the issuing financial institutions associated with 2,580 of the 2,732 apparent credit card numbers that were retrieved from the laptop‘s text files. Most of these financial institutions did not submit victim impact statements. Eight of them did. The victim impact statements that those eight financial institutions submitted averred that the losses associated with the card numbers from the laptop text files that were associated with their institutions totaled, collectively, $24,673.60.
On October 6, 2017, Rueda pleaded guilty to one count of conspiracy to commit access-device fraud, in violation of
The PSR based the GSR on the Guidelines’ “loss” definition. Section 2B1.1 of the guidelines defines “loss” as “the greater of actual loss or intended loss.” § 2B1.1, cmt. n.3(A). “Actual loss” is defined as “the reasonably foreseeable pecuniary harm that resulted from the offense.” Id. at cmt. n.3(A)(i). “Intended loss,” by contrast, is defined as “the pecuniary harm that the defendant purposely sought to inflict [which] includes intended pecuniary harm that would have been impossible or unlikely to occur.” Id. at cmt. n.3(A)(ii).
The Guidelines provide additional instructions for calculating “loss” in cases that involve “Stolen or Counterfeit Credit Cards and Access Devices.” Id. at cmt. n.3(F)(i) [hereinafter Application Note 3(F)(i)]. These instructions provide that, “[i]n a case involving any counterfeit access device or unauthorized access device, loss includes any unauthorized charges made with the counterfeit access device or unauthorized access device and shall be not less than $500 per access device.”
Section 2B1.1 further states that “counterfeit access device” and “unauthorized access device” are defined in accordance with
Section 1029(e) of the United States Criminal Code defines “access device” as “any card, plate, code, account number, electronic serial number, mobile identification number, [or] personal identification number . . . that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value.”
After applying the Application Note 3(F)(i), the PSR determined that the “loss” totaled $1,290,000. The PSR did so by attributing a loss of $500 to each of the 2,580 numbers retrieved from the laptop text files that had been determined to constitute unauthorized or counterfeit access devices.
Rueda objected to the PSR‘s loss calculation. She contended that to apply Application Note 3(F)(i)‘s $500 minimum loss amount to each of the 2,580 credit card numbers at issue, the government would first need to establish that each “can be used . . . to obtain money, goods, services, or any other thing of value,” in accordance with the statutory definition of an access device. See
At sentencing, on October 1, 2018, the District Court noted that the question of the loss calculation was “close” but ultimately rejected Rueda‘s contention. The District Court adopted, instead, the GSR of 37-46 months of imprisonment based on the PSR‘s attribution of a loss of $500 to each of the 2,580 numbers retrieved from the laptop‘s text files determined to be counterfeit or unauthorized access devices.
Rueda timely appealed her sentence. Our review is de novo, as her challenge to her sentence turns on a matter of guidelines interpretation. United States v. Flores-Machicote, 706 F.3d 16, 19 (1st Cir. 2013).
II.
Rueda first contends that the District Court erred in applying Application Note 3(F)(i)‘s $500 minimum loss amount to each of the 2,580 credit card numbers in making its loss calculation under the Guidelines, because the government failed to establish that, in accord with
Application Note 3(F)(i) incorporates the definition of “counterfeit” and “unauthorized” access devices in
As a result, we do not see how Rueda‘s contention that Application Note 3(F)(i) must be read to exclude from its scope the 2,580 numbers that are at issue here is a tenable one. Rueda does contend that Application Note 3(F)(i) incorporates the “can be used” requirements from the definition of an “access device” in
To be sure, Rueda argues that nothing about Application Note 3(F)(i)‘s express inclusion of “unauthorized” and “counterfeit” access devices precludes the conclusion that it contains an implicit usability requirement. According to her, even “expired, revoked, or canceled” access devices can be “used” in limited ways, such as by “manually impress[ing] [the fraudulent cards] onto a paper receipt” and “present[ing] [the fraudulent cards] over the phone . . . when electronic access is temporarily unavailable.”
But, if this is the definition of “can be used” that Rueda contends should apply here, then we fail to see on what basis she
Rueda does rely on the out-of-circuit case United States v. Onyesoh, 647 F.3d 1157 (9th Cir. 2012), in which the Ninth Circuit did clearly endorse a usability requirement. But, we do not read that precedent to hold that the government must show that a credit card number could successfully obtain money before such a number could be subject to the $500 minimum “loss” amount for “counterfeit” and “unauthorized” access devices pursuant to Application Note 3(F)(i). Thus, even that precedent does not support her challenge on this score, given this record. See id. at 1160 (holding that evidence of expired cards “in combination with another device” such as an “embosser” would potentially suffice to establish usability).
III.
Rueda separately contends that Application Note 3(F)(i)‘s use of the phrase “shall not be less than $500 per access device” merely modifies “loss includes any unauthorized charges made with the counterfeit access device or unauthorized access device.” (Emphasis added). Accordingly, Rueda contends, the “most logical and reasonable” reading of Application Note 3(F)(i) is that its $500 minimum loss amount may be attributed to an access device only when it was actually “charge[d]” during the commission of the offense. And, so read, Rueda contends, Application Note 3(F)(i) would not permit the $500 loss amount to be attributable to any of the 2,580 numbers at issue here, given that the government has not shown that any of them were actually charged. As a result, Rueda argues that the loss attributable to her offense should not be the $1,290,000 calculated by the District Court. It should be the $24,673.60 that was reflected in the victim impact statement that the eight financial institutions submitted.
But, here too, we disagree. The word “loss” in Application Note 3(F)(i) operates as the subject for the two verb clauses that follow and that are connected by a conjunction: “includes any unauthorized charges made with the counterfeit access device or unauthorized access device” and “shall be not less than $500 per access device.” Accordingly, the sentence is most naturally read so that these two verb clauses have the same subject: “loss.” So read, Application Note 3(F)(i) provides that “loss” both (1) shall “include[] any unauthorized charges made with the counterfeit access device or unauthorized access device” and (2) “shall be not less than $500 per access device” regardless of whether each access device was actually charged.
This reading accords -- as Rueda‘s reading does not -- with Section 2B1.1(b)(1)‘s broader instruction that “loss” include “intended loss,” which is defined as “intended pecuniary harm that would have been impossible or unlikely to occur.” Id. at cmt. n.3(A)(ii) (emphasis added). This reading also comports with the rest of Application Note 3(F)(i)‘s language, which appears to establish a special carve-out from the $500
Finally, this reading accords with the reading given to Application Note 3(F)(i) by every circuit to have addressed the argument about its scope that Rueda now advances. See, e.g., Cardenas, 598 F. App‘x at 267 (concluding that “nothing in the text [of Application Note 3(F)(i)] requires the access devices to be actually used” (emphasis in original)); Thomas, 841 F.3d at 764 (“[Application Note 3(F)(i)] does not require that the device actually have been used.“); United States v. Gilmore, 431 F. App‘x 428, 430-31 (6th Cir. 2011) (“The plain language [of Application Note 3(F)(i)] sets a floor for calculating the loss attributable to each device, namely $500; it does not limit loss calculations to devices actually used.“).
IV.
The District Court here noted the “profound” disparity between the “loss” as calculated by Rueda‘s PSR and the actual “loss” attributed to her offense based on the victim impact statements submitted by the various financial institutions. But, the District Court, based on that disparity and various mitigating factors, exercised its discretion to impose a variant sentence of four-months imprisonment followed by two years of supervised release. We thus conclude that the District Court did not err in imposing the sentence that it did. United States v. Popovski, 872 F.3d 552, 554 (7th Cir. 2017) (“If a calculation under Application Note 3(F)(i) overstates the seriousness of the offense, a district judge must adjust accordingly.“). Accordingly, we affirm the District Court‘s sentence.