Case: 09-50493 Document: 00511130924 Page: 1 Date Filed: 06/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 3, 2010
No. 09-50493
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARMENAK ABULYAN; FREDRIK ABULYAN, also known as Frederick
Abulyan,
Defendants-Appellants
Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:08-CR-196-2
Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Armenak Abulyan and Fredrik Abulyan were convicted by a jury of
conspiracy to commit access-device fraud, aiding and abetting in such fraud, and
aiding and abetting in access-device-making equipment, in violation of 18 U.S.C.
§§ 2, 1029 (a)(1), (a)(4) and (b)(2). Fredrik Abulyan was sentenced to 33 months’
imprisonment; Armenak Abulyan, to 36 months.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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Armenak Abulyan contends the court erred in admitting recorded
statements he made to police during a two-hour-and-30 minute traffic stop
because the statements were made while he was in custody and prior to being
advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). He further
contends the videotape of the traffic stop was introduced into evidence in
violation of the standing discovery order because it was not disclosed timely.
Armenak and Fredrik Abulyan claim the district court erred in applying a two-
level “sophisticated means” enhancement, pursuant to Guideline
§ 2B1.1(b)(9)(C).
When reviewing the denial of a suppression motion, conclusions of law are
reviewed de novo; findings of fact, for clear error. United States v. Gibbs, 421
F.3d 352, 356–57 (5th Cir. 2005). Along that line, the evidence is viewed in the
light most favorable to the prevailing party. Id. The denial of a motion to
suppress may be affirmed based on any rationale supported by the record.
United States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir. 1999).
We need not decide whether the roadside detention converted to a de facto
arrest prior to the statements made by Armenak Abulyan, for which Miranda
warnings would be required, because, even if it did, the error was harmless. See
United States v. Zavala, 541 F.3d 562, 581 (5th Cir. 2008) (“A constitutional
error may be deemed harmless if the beneficiary of the constitutional error
proves beyond a reasonable doubt that the error complained of did not contribute
to the verdict.” (citing Neder v. United States, 527 U.S. 1, 15 (1999))); United
States v. Virgen-Moreno, 265 F.3d 276, 294 (5th Cir. 2001) (noting that even
though the district court erred in admitting statements obtained during pre-
Miranda custodial questioning, any error was harmless beyond a reasonable
doubt in the light of other overwhelming evidence relating to matters for which
defendant had given statement).
Based upon the evidence adduced at trial, both direct and circumstantial,
and the effect of the constitutional violations on the trial process, the evidence
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unrelated to the alleged constitutional violation and which linked Armenak
Abulyan and his brother to the unauthorized use of credit card numbers was
overwhelmingly sufficient to establish Armenak Abulyan’s guilt beyond a
reasonable doubt. See United States v. Bentley, 875 F.2d 1114, 1117 (5th Cir.
1989) (citing Germany v. Estelle, 639 F.2d 1301, 1303 (5th Cir. 1981)).
Therefore, any error in admitting Armenak Abulyan’s statements was harmless.
See id.; Virgen-Moreno, 265 F.3d at 294.
Further, Armenak Abulyan failed to show the district court abused its
discretion in allowing the videotaped statements into evidence. He bases this
contention on the grounds that the Government failed to provide the videotape
within the time provided in the district court’s discovery order.
Defendants requested a one-day continuance to review the video, and the
court granted that request. Although the trial immediately resumed, without
objection, there was no further testimony about the video; and, the video was not
shown to the jury until the following day, pursuant to the agreed-upon
continuance. Therefore, Armenak Abulyan has failed to demonstrate he was
denied due process or that the court abused its broad discretion in remedying the
alleged failure of the Government to comply with its discovery order in the
manner in which it did. Bentley, 875 F.2d at 1118.
Defendants also challenge the application of the two-level enhancement
under Guideline § 2B1.1(b)(9)(C) for “sophisticated means” and contend that the
application constituted double counting because they also received a two-level
enhancement under § 2B1.1(b)(10), based on the offense involving the possession
of device-making equipment. Defendants contend that their conduct was not
complex or intricate in either its execution or concealment and that no evidence
existed as to the execution of the scheme other than that they purchased fuel
with fraudulent cards.
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The district court’s factual finding that Defendants used sophisticated
means is reviewed only for clear error. United States v. Conner, 537 F.3d 480,
492 (5th Cir. 2008) (citing United States v. Powell, 124 F.3d 655, 666 (1997)).
Guideline 2B1.1(b)(9)(C) provides for a two-level increase in the offense
level if the offense otherwise involved sophisticated means. The commentary to
§ 2B1.1 provides in pertinent part that “‘sophisticated means’ means especially
complex or especially intricate offense conduct pertaining to the execution or
concealment of an offense.” U.S.S.G. § 2B1.1, comment. (n.8(B)). The
commentary further notes that “[c]onduct such as hiding assets or transactions,
or both, through the use of fictitious entities, corporate shells, or offshore
financial accounts also ordinarily indicates sophisticated means”. Id.
Defendants were found in possession of a credit card swiper; the swiper
had been used to reprogram magnetic strips on other cards found in the
possession of Defendants with credit card numbers obtained without the
authorization of the account holders; Defendants used the reprogrammed
magnetic-strip cards at different fueling stations around the country; the
unauthorized credit card numbers were only used for a few transactions each,
which lessened the likelihood of the fraud being discovered; and the credit card
numbers were reprogrammed onto cards that would not readily be identified as
credit cards, such as Coffee Bean cards, which had the effect of concealing the
nature of the fraudulent scheme. Based on the totality of the evidence, the
district court’s application of the sophisticated-means enhancement was not
clearly erroneous. See Connor, 537 F.3d at 492.
Finally,“[d]ouble counting is prohibited only if the particular guidelines at
issue specifically forbid it”. United States v. Hawkins, 69 F.3d 11, 14 (5th Cir.
1995); see also U.S.S.G. § 1B1.1, comment. (n.4(A)) (explaining when multiple
adjustments within one Guideline are permissible). Defendants have not
pointed to any guideline provision that forbids the application of both
enhancements, and there is no such prohibition. See § 2B1.1.
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Moreover, the application of two different adjustments to the same course
of conduct does not constitute double counting if each adjustment targets a
different aspect of Defendants’ behavior. United States v. Scurlock, 52 F.3d 531,
540 (5th Cir. 1995); see also United States v. Olis, 429 F.3d 540, 549 (5th Cir.
2005) (holding that two similar enhancements that are based on essentially the
same conduct could both be applied). Defendants not only used device-making
equipment, but they used it as part of a scheme that, on the whole, was
sophisticated. Accordingly, application of the enhancements was permissible
and did not constitute double counting.
AFFIRMED.
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