[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10073 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 7, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 0:09-cr-60172-PAS-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
HRACH NIKOGHOSYAN,
lllllllllllllllllllll Defendant-Appellant.
________________________
No. 10-10074
Non-Argument Calendar
________________________
D.C. Docket No. 0:90-cr-60172-PAS-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VARDGES NIKOGHOSYAN,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(January 7, 2011)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Hrach and Vardges Nikoghosyan (“Defendants”) appeal their thirty-month
sentences for conspiracy to commit offenses against the United States in violation
of 18 U.S.C. § 371 through access device fraud, in violation of 18 U.S.C.
§ 1029(a)(1), and theft of U.S. postage stamps, in violation of 18 U.S.C. § 641.
Defendants conspired to generate counterfeit credit cards using illegally obtained
credit card numbers and used these cards to purchase postage stamps. For
purposes of U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2B1.1(b), the
district court counted as victims the seventy-six defrauded banks, the United
States Postal Service, and the 430 identified individuals whose account numbers
were unlawfully used and applied the six-level enhancement for an offense
involving over 250 victims. Defendants argue that the district court erred in
counting the individual account holders because their losses were quickly credited
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or reimbursed by third parties, and that the appropriate enhancement would have
been the four-level increase for an offense involving over 50 victims. However,
we find no error in the district court’s application of the Guidelines for the reasons
discussed below.
We review a district court’s application and interpretation of the Guidelines
de novo, and its factual findings for clear error. United States v. Lee, 427 F.3d
881, 892 (11th Cir. 2005). The law of this Circuit is “emphatic” that only the
Supreme Court or this Court sitting en banc can judicially overrule a prior panel
decision. Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997).
U.S.S.G. § 2B1.1(b)(2)(C) provides that the base offense level for offenses
of this form shall be increased by six levels if the offense involves 250 or more
victims. The guidelines commentary defines a “victim” as “any person who
sustained any part of the actual loss determined under subsection (b)(1).” Id. §
2B1.1, cmt. n.1. The commentary defines “actual loss” as “reasonably foreseeable
pecuniary harm that resulted from the offense.” Id. cmt. n.3(A)(i). Reasonably
foreseeable pecuniary harm means monetary harm that “the defendant knew or,
under the circumstances, reasonably should have known, was a potential result of
the offense.” Id. cmt. n.3(A)(iii)–(iv). Pursuant to a recent update to the
commentary for Subsection (b)(2), a “victim” is also defined as “any individual
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whose means of identification was used unlawfully or without authority” when the
offense involves a means of identification. Id. cmt. n.4(E); id. supp. to app. C,
amend. 726. A “means of identification” includes an account number. 18 U.S.C.
§§ 1028(d)(7)(D), 1029(e)(1); U.S.S.G. § 2B1.1, cmt. n.1.
We have previously concluded that the Guidelines allow a district court to
find that a reimbursed party has suffered a loss, and thus to treat that party as a
victim. Lee, 427 F.3d at 895. In Lee, the defendants were convicted of mail fraud
after writing checks on closed bank accounts. Id. at 884-85. While some check
recipients were able to recoup their losses, other payees did not recover their
losses. Id. at 885–86. In sentencing the defendants, the district court applied a
two-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A)(i), finding that the
offense involved ten or more victims. Lee, 427 F.3d at 894. On appeal, the
defendants challenged the enhancement, arguing that the district court erred in
determining the number of victims because some of the check recipients were able
to offset their losses, and therefore, those individuals should not have been
considered victims under the enhancement. Id. We rejected that argument and
held that the district court properly imposed the two-level enhancement because
reimbursed victims nonetheless suffer an initial loss. Id. at 895.
Upon review of the record and upon consideration of the parties’ briefs, we
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affirm. Our decision in Lee is binding and has not been overruled by the Supreme
Court or this Court sitting en banc, and we are thus bound by it. Furthermore, our
holding in Lee is consistent with the recently updated commentary for § 2B1.1,
which defines a “victim” without regard to whether an individual is subsequently
reimbursed. See U.S.S.G. § 2B1.1, cmt. n.4(E); id. supp. to app. C, amend. 726.
Appellants’ request for oral argument is denied.
AFFIRMED.
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