United States v. Alli

United States Court of Appeals
For the First Circuit

No. 05-1698

UNITED STATES,

Appellee,

v.

OLADIMEJI O. ALLI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.

Kevin J. Fitzgerald, Assistant Federal Defender, for
appellant.
Donald C. Lockhart, Assistant United States Attorney,
with whom Zechariah Chafee, Assistant United States Attorney, and
Robert Clark Corrente, United States Attorney, were on brief, for
appellee.

April 7, 2006
 STAHL, Senior Circuit Judge. Oladimeji Alli, a former

employee of the United States Postal Service, pleaded guilty to

mail theft after he was caught stealing letters containing credit

cards. Alli admitted that he had intended to send the cards to a

contact in the Netherlands in exchange for money. He was sentenced

to 21 months in prison. In this appeal, Alli raises several

challenges to the way his sentence was calculated. After careful

consideration, we affirm the sentence.

I.

In December 2003, Alli was a temporary employee at a

branch of the United States Post Office in Providence, Rhode

Island. His duties included sorting bulk mail. On December 30,

2003, Alli dropped off a package, addressed to a destination in the

Netherlands, at a United Parcel Service (UPS) facility in Warwick,

Rhode Island. Finding the package suspicious, UPS workers opened

it, discovered nine credit cards in nine different names, and then

called the state police. The police, in turn, called the post

office where Alli worked to inquire about Alli, whose return

address was on the Netherlands-bound package. Postal Service

inspectors began watching Alli at work, and in January 2004 they

saw him take letters from a mail tray and hide them. Two days

later, an inspector placed about 25 letters containing credit cards

onto Alli's mail tray. While the inspectors watched and a video

camera recorded, Alli pocketed two letters containing credit cards.

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Moments later, an inspector confronted Alli and escorted him to a

conference room where police officers were waiting.

After receiving Miranda warnings, Alli admitted stealing

the two letters with the intention to take credit cards from them.

He also admitted that he had stolen the nine credit cards found in

the UPS package by removing them from letters he had taken from

mail trays with the intention of sending the purloined cards to

contacts in the Netherlands, who had promised to pay him for the

cards.1 In a later search of Alli's apartment, the police found

still another credit card, which Alli also admitted to having

stolen. In April 2004, Alli was charged with postal theft in

violation of 18 U.S.C. § 1709. He pleaded guilty and was sentenced

in April 20052 to 21 months in prison.

1
The parties dispute whether Alli was to receive $150 for each
credit card he passed along to his contacts, or whether he would
get a single $150 payment for all the cards. Alli maintains, and
the prosecution version of the facts in the Pre-Sentence
Investigation Report implies, that Alli was to receive $150 for all
of the cards. However, at Alli's sentencing hearing, the district
court noted twice, without objection, that Alli was expecting $150
per card. For reasons discussed later in this opinion, we conclude
that it makes no difference whether Alli would have received
upwards of $1000 or only $150 for the credit cards he stole.
2
The sentencing had originally been scheduled for October
2004, but the district court postponed the hearing until December
in the hope that the Supreme Court would decide the pending case of
United States v. Booker. In December, the judge allowed Alli to
withdraw his guilty plea for reasons not bearing on this appeal.
Alli subsequently pleaded guilty again to the same charge and was
ultimately sentenced in April 2005. Booker had been decided on
January 12, 2005.

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 The district judge presiding over Alli's sentencing

hearing understood that he was operating under an advisory

Guidelines system.3 To calculate the sentence, he began with a

base offense level of six,4 to which he added an eight-level

enhancement pursuant to USSG § 2B1.1(b)(1)(E) because the loss

occasioned by Alli's offense was more than $70,000 but less than

$120,000. The judge then added a separate two-level enhancement

after concluding that Alli's offense involved "the production or

trafficking of any unauthorized access device or counterfeit access

device." § 2B1.1(b)(9)(B). On appeal, Alli contests the eight-

level enhancement, arguing that the district court improperly

calculated the amount of financial loss caused by his offense. He

also challenges the two-level enhancement on the ground that §

2B1.1(b)(9)(B) does not simply require "trafficking" in a general

sense, but rather the violation of a specific federal statute

criminalizing the trafficking of credit cards, 18 U.S.C. §

1029(e)(5). Finally, Alli contends that his sentence is

unreasonable and therefore must be vacated under the post-Booker

"reasonableness" standard of review.

3
The judge stated, "[A]s in all sentences since Booker, it's
a two-step process. The first step is to determine what the
sentence would be under the guidelines, and since Booker makes it
clear that the guidelines are now advisory, the second step is to
determine what a reasonable sentence would be under the statute,
under [§] 3553(a), I believe it is."
4
Both the probation office and the district court relied on
the November 2003 version of the Sentencing Guidelines Manual.

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 II.

We review a district court's interpretation and

application of the federal Sentencing Guidelines de novo, United

States v. Robinson, 433 F.3d 31, 35 (1st Cir. 2005), but review the

court's related factual findings, including its calculation of loss

amount, for clear error. See United States v. Flores-Seda, 423

F.3d 17, 20 (1st Cir. 2005).

A. Amount of Loss

Section 2B1.1(b)(1) calls for a sentencing court to

increase an offender's offense level in larceny and theft cases

according to the amount of loss resulting from the offense. An

application note to that guideline states that "loss is the greater

of actual loss or intended loss." § 2B1.1, cmt. n.3(A). All agree

that no actual loss occurred as a result of Alli's theft.

Therefore, the district court calculated intended loss and did so

by adding together the credit limits of the stolen credit cards,

arriving at a total of $88,500.5 This was the same amount

5
It appears that of the twelve credit cards Alli stole (nine
in the UPS package, two at the post office, and one found in his
apartment), the credit limits of only eight or nine cards were used
to calculate the intended loss. The record does not reveal why
this is so.
It is also worth noting that Alli was only charged with, and
only pled guilty to, theft of the two credit cards with which he
was caught by investigators at the post office. Counsel for Alli
argued below that it was only appropriate to count the credit
limits of those two cards when assessing loss, but the district
court disagreed and Alli does not press the question on appeal.

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recommended by the probation officer who prepared Alli's Pre-

Sentence Investigation Report (PSR).

Alli timely objected to the loss calculation in the PSR

and renewed his objection at his sentencing hearing. The crux of

his objection is that because there is no evidence that he himself

clearly intended to use the card, the amount of loss should be

limited to $500 per card pursuant to Application Note 3(F) to

Guideline 2B1.1. That note states, "In 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 not be less than

$500 per access device." § 2B1.1, cmt. n. 3(F)(i).

The district court, however, found it of no importance

that Alli did not intend to use the cards to their full limit or

indeed at all. Rather, the court found that Alli sold the cards

knowing they would be used for unlawful gain and concluded that

Alli therefore had a reasonable expectation, if not knowledge, that

the cards would be used to the fullest extent possible. This was

enough, the court determined, to demonstrate intended loss.6 We

must therefore decide whether a loss that an offender knows will

occur, or should reasonably expect to occur, as a direct result of

6
At the sentencing hearing, the government agreed with Alli
that there was no intended loss. The district court thus "[found]
itself in the unusual position of coming up with a conclusion that
is different from the one that both counsel agree to."

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his offense counts as an "intended loss" for purposes of an

enhancement under § 2B1.1.

The Guidelines define intended loss as "the pecuniary

harm that was intended to result from the offense, [including]

intended pecuniary harm that would have been impossible or unlikely

to occur." § 2B1.1, cmt. n.3(A)(ii). The government bears the

burden of proving intended loss by a preponderance of the evidence,

although "a reasonable estimate of loss will suffice." United

States v. Egemonye, 62 F.3d 425, 428-49 (1st Cir. 1995) (citing

USSG § 2F1.1 cmt. n.8).7 This circuit has not previously decided

whether reasonably foreseeable loss qualifies as intended loss, and

the approaches taken by other circuits vary. Compare United States

v. Staples, 410 F.3d 484, 490 (8th Cir. 2005) ("Absent other

evidence of the defendant's intent, the size of the maximum loss

that a fraud could have caused is circumstantial evidence of the

intended loss which satisfies the preponderance of the evidence

standard.") with United States v. Sanders, 343 F.3d 511, 527 (5th

Cir. 2003) ("[O]ur case law requires the government prove by a

preponderance of the evidence that the defendant had the subjective

intent to cause the loss."); United States v. Morrow, 177 F.3d 272,

301 (5th Cir. 1999) ("[W]e look to actual, not constructive,

intent.").

7
Section 2F1.1 was subsequently deleted from the Guidelines
Manual and consolidated with § 2B1.1. See United States v. Burdi,
414 F.3d 216, 218 n.2 (1st Cir. 2005).

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 For our part, we think it sensible in this context to

follow the common-law rule that a person is presumed to have

generally intended the natural and probable consequences of his or

her actions. See, e.g., United States v. Jacobs, 117 F.3d 82, 95

(2d Cir. 1997); cf. United States v. Fortier, 242 F.3d 1224, 1232-

33 (10th Cir. 2001) (endorsing an increased sentence under the

Guidelines for harms that were a reasonably foreseeable consequence

of, although not directly caused by, a defendant's conduct). Thus,

in cases like the present one where the defendant's criminal role

was to convey stolen credit cards to someone else, "intended loss"

includes "losses that might naturally and probably flow from" his

unlawful conduct. Jacobs, 117 F.3d at 95. Although Alli never

intended to be the ultimate user of the stolen cards and thus

lacked intent to run up charges on the cards himself, he

specifically intended to sell the cards to someone who was quite

likely to do so. As the district court stated,

[I]t's pretty clear that Mr. Alli was a
participant in this scheme, he was well aware,
obviously, of the fact that these individuals
were using the card[s] for unlawful purposes
and he was selling them the card[s], that was
a further clue that these individuals were
going to use the cards to the maximum extent
permissible.

Alli was aware of the unlawful aims harbored by his customers in

the Netherlands, was a knowing participant in their larger scheme,

and specifically intended to sell them the stolen cards. It was

naturally and probably to be expected as a result of Alli's actions

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that those contacts would charge as much as possible on the cards.

Accordingly, we find that the district court's attribution to Alli

of intended loss totaling the stolen cards' aggregate credit limit

of $88,500 was not clearly erroneous.

B. Trafficking

The district court, again following the recommendation of

the PSR, increased Alli's offense level by two points after

determining that his offense involved "trafficking" of credit

cards. The relevant guideline states: "If the offense involved .

. . the production or trafficking of any unauthorized access device

or counterfeit access device . . . increase by 2 levels." §

2B1.1(b)(9)(B). Alli contends that, in order to qualify as having

engaged in "trafficking" within the meaning of this guideline, an

offender must have violated the federal trafficking law, 18 U.S.C.

§ 1029(a). Alli was not charged with violating that statute.

Furthermore, the statute requires that a defendant have obtained at

least $1000 in value from his trafficking, see § 1029(a)(2); Alli

contends that he has not met this threshold because he stood to

gain only $150 for all the credit cards he planned to send to his

contacts in the Netherlands. The government counters that, first

of all, violation of § 1029(a) is not a prerequisite to the two-

step enhancement, and, second of all, even if it were, Alli's

conduct did violate that statute because he stood to gain more than

$1000 in payments from the Netherlands-based purchasers. We

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conclude that § 2B1.1(b)(9)(B) applies to offenders whose offense

involves credit card trafficking whether or not that offense would

also qualify as a violation of § 1029(a). Therefore, we find the

enhancement proper without having to decide how much Alli was to be

paid for sending the stolen credit cards to the Netherlands.

Nothing in § 2B1.1(b)(9)(B) requires the underlying

offense to also be a violation of § 1029(a). The drafters of the

guideline were clearly aware of the existence and relevance of §

1029(a), since the guideline's application notes incorporate

certain specific definitions used in the statute. See § 2B1.1 cmt.

n.8(A) (stating, e.g., that for purposes of § 2B1.1(b)(9),

"counterfeit access device" has the meaning given that term in 18

U.S.C. § 1029(e)(2) and "unauthorized access device" has the

meaning given that term in § 1029(e)(3)). We agree with the

district court that "trafficking" sufficient to satisfy the

guideline does not require a violation of the statute. Moreover,

both the generally accepted definition of trafficking8 and the

statutory definition9 are clearly satisfied here. Alli obtained

control of stolen credit cards and attempted to sell them to his

contacts in the Netherlands. Accordingly, he met the requirements

8
One dictionary defines "traffic" as "the activity of
exchanging commodities by bartering or buying and selling."
Webster's Third New International Dictionary, Unabridged (1986).
9
18 U.S.C. § 1029(e)(5) defines "trafficking" as to "transfer,
or otherwise dispose of, to another, or obtain control of with
intent to transfer or dispose of."

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for the two-level increase and the district judge was correct to

impose it.

C. Reasonableness

Finally, Alli challenges his sentence as unreasonable.

Sentences imposed under the advisory guidelines scheme in place

after the Supreme Court's decision in United States v. Booker are

subject to appellate review for reasonableness. Booker, 543 U.S.

220, 261 (2005); United States v. Robinson, 433 F.3d 31, 35 (1st

Cir. 2005). A sentence is reviewable for reasonableness whether it

falls inside or outside the now-advisory guidelines range. United

States v. Jimenez-Beltre, 2006 WL 562154 at *2 (1st Cir. Mar. 9,

2006) (en banc). In selecting a sentence, a district court will

ordinarily calculate the applicable Guidelines range and then

determine "whether other factors identified by either side warrant

an ultimate sentence above or below the guideline range." Id. at

*3. The court is also bound to consider the sentencing factors set

out in 18 U.S.C. § 3553(a).10 Robinson, 433 F.3d at 35. Finally,

10
These factors are:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence to reflect the seriousness of
the offense, to promote respect for the law, and to provide just
punishment; to afford adequate deterrence; to protect the public;
and to provide the defendant with needed educational or vocational
training or medical care;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
by the Guidelines;
(5) any pertinent policy statement;
(6) the need to avoid unwarranted sentence disparities among

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the court must, in most circumstances, explain its reasons for

choosing the sentence it does. Jimenez-Beltre, 2006 WL 562154 at

*3.

Here, the PSR proposed a guidelines sentencing range of

18 to 24 months. The district judge explained that he believed

Alli's crime was not a crime of opportunity and that that fact

pointed him toward the high end of the range, but because the

government recommended a sentence at the low end of the range, he

compromised by sentencing Alli to a mid-range sentence of 21

months.

Alli gives four reasons why the 21-month sentence is

unreasonable. First, he cites the district court's allegedly

faulty calculation of intended loss. Second, he claims the

district court failed to adequately take into account Alli's

personal characteristics and family situation. Third, he notes

that the district court did not address the fact that Alli will

likely be deported and separated from his wife and child. Finally,

he argues that the 21-month period of incarceration is greater than

necessary to achieve the statutory goals of punishment. See §

3553(a).

defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
18 U.S.C. § 3553(a).

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 The first claimed indicator of unreasonableness is easily

disposed of: because we conclude that the district court did not

clearly err in calculating the intended loss, we accordingly also

conclude that relying on that calculation in choosing a sentence

was not unreasonable. The second and third claimed indicators

amount to a claim that the district court did not adequately

consider, or perhaps did not adequately explain its consideration

of, factors the defense viewed as mitigating. When reviewing a

district court's consideration of a particular factor, "our

emphasis . . . will be on the provision of a reasoned explanation,

a plausible outcome and — where these criteria are met — some

deference to different judgments by the district judges on the

scene." Jimenez-Beltre, 2006 WL 562154 at *3. In this case,

however, neither Alli nor his lawyer brought the personal

circumstances invoked in this appeal — the illness of Alli's

parents, his cooperation with law enforcement after his arrest, and

the likelihood that he will be deported — to the attention of the

judge at the sentencing hearing. Rather, when Alli was given the

opportunity to speak at the hearing, he said simply, "I know I did

something wrong, I'm sorry for what I did," and his counsel argued

only the guidelines calculation objections discussed earlier.

The district judge's explanation of why the sentence he

chose met the requirements of § 3553(a) was admittedly terse.

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Except for the guidelines range, he discussed none of the § 3553(a)

factors individually; instead, he simply stated,

[T]his is one of those cases . . . where I
think the guidelines produce a sentence that
is reasonable and perfectly consistent with
the factors enumerated in the statute,
3553(a). I think all of those factors have
been adequately taken into account by the
guidelines, and the guideline range, as I say,
produces a reasonable sentence.

This language treads close to an assumption that the guideline

sentence is automatically reasonable, an assumption that is no

longer viable, see Jimenez-Beltre at *3, but we think that under

the circumstances the district court acted reasonably in imposing

the sentence it did. At the sentencing hearing Alli identified no

factors (other than the challenges to the judge's guideline

calculations already discussed) that would arguably militate in

favor of a sentence below the guideline range of 18 to 24 months.

Nor did the government raise any factors in support of an above-

range sentence. In this situation, we do not fault the judge for

not speaking further about the § 3553(a) factors, given that none

were raised for his consideration and, in his independent judgment,

none were worthy of further discussion.

The final contention on appeal is that Alli's sentence is

unreasonable because it is longer than necessary to effectuate the

statutory goals of criminal punishment. See 18 U.S.C. § 3553(a).

The district judge did not discuss this statutory requirement.

Again, however, we find the absence of particularized discussion

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unproblematic given that the issue was not raised for the judge's

consideration at the hearing. In that context, the judge's general

conclusion that the guidelines sentence was a reasonable punishment

for Alli's crime suffices as a conclusion that the sentence was not

longer than necessary.

III.

For the reasons stated above, the defendant's sentence is

affirmed.

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