United States v. Perez

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10778 ELEVENTH CIRCUIT
JUNE 29, 2011
________________________
JOHN LEY
CLERK
D. C. Docket No. 1:09-cr-20591-PAS-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

GERMAN PEREZ,

Defendant - Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(June 29, 2011)

Before EDMONDSON and MARCUS, Circuit Judges, and LAWSON,* District
Judge.

PER CURIAM:

Appellant German Perez pled guilty to Counts One and Two of a five count

*
Honorable Hugh Lawson, United States District Judge for the Middle District of
Georgia, sitting by designation.
indictment. Count One charged that Perez knowingly, and with the intent to

defraud, produced, used, and trafficked in one or more counterfeit access devices,

namely, counterfeit credit cards, in violation of 18 U.S.C. §§ 1029(a)(1) and (2).

Count Two charged Perez with aggravated identity theft, in violation of 18 U.S.C.

§ 1028A(a)(1). Perez was sentenced to 12 months on Count One and a

consecutive prison term of 24 months on Count Two.

Perez challenges his sentence on three grounds. First, he argues that the

district court erred in applying a two-level increase under U.S.S.G. §

2B1.1(b)(10). Second, he argues that there was not sufficient evidence to support

the § 2B1.1(b)(10) sentencing enhancement. Finally, he argues that the district

court erred in holding him responsible for the total loss amount.

Finding no error, we affirm.

I.

At his change of plea hearing, Perez admitted the following facts. On June

24, 2009, agents of the United States Secret Service placed a controlled call to

Perez with the assistance of a cooperating informant ("CI"). In that call, the CI

and Perez arranged to conduct credit card fraud. On June 26, 2009, Secret Service

agents searched the CI to ensure that he had no counterfeit credit cards and placed

an audio recording device on his person. After that, Perez arrived that the CI's

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residence to pick him up. Secret Service agents listened to the conversation

between the two men. Perez and the CI discussed procuring a credit card skimmer

for the CI's girlfriend to use while waitressing. Perez noted that the names of card

holders that are magnetically encoded on a credit card regularly appear on receipts.

Perez then gave the CI a counterfeit credit card with the CI's name physically

imprinted on the card and directed him to use the card to buy $20 worth of

gasoline. After the CI purchased the gasoline, Secret Service agents arrested Perez

and recovered an additional nine counterfeit credit cards that were physically

imprinted with the CI's name. Subsequent investigation by the Secret Service

discovered that each of the ten cards recovered was magnetically encoded with a

different credit card number and account holder name. Each of these ten credit

card accounts was an active account issued to a real person. Secret Service agents

ultimately determined that each of the ten credit card accounts had been

compromised by a waitress in a Coconut Grove restaurant. The waitress admitted

that she used a credit card skimmer and provided credit card numbers to Perez.

A Presentence Investigation Report ("PSR") was prepared.1 The probation

officer calculated a base offense level of six for Count One, pursuant to U.S.S.G. §

2B1.1(a)(2). The probation officer determined that Perez was responsible for a

1
Unless otherwise noted, all references to the PSR are to the revised PSR.

3
total loss amount of $51,021.01, resulting in an increase of six in the offense level

under U.S.S.G. § 2B1.1(b)(1)(D). A two-level decrease for acceptance of

responsibility was applied under U.S.S.G. § 3E1.1(a). Perez's final offense level

was 10, with a criminal history category of 1, yielding a sentence range under the

Sentencing Guidelines of 6 to 12 months' imprisonment for Count One. Count

Two, the aggravated identity theft charge, carried a mandatory consecutive two-

year prison term. 18 U.S.C. § 1028A.

Both the government and Perez filed objections to the PSR. The

government objected to the probation officer's failure to assess a two-level

enhancement under U.S.S.G. § 2B1.1(b)(10). That section provides for a two-

level increase if the offense involved "(A) the possession or use of any (i) device-

making equipment" or "(B) the production or trafficking of any (i) . . . counterfeit

access device." U.S.S.G. § 2B1.1(b)(10). The government acknowledged that

Application Note 2 to U.S.S.G. § 2B1.6, which governs aggravated identity theft

convictions under 18 U.S.C. § 1028A, precludes the application of a two-level

increase in certain circumstances, but argued that Application Note 2 did not

prohibit an increase in this case for two reasons. First, because Perez gave device-

making equipment (the credit card skimmer) to the CI's girlfriend, Ivonne Calvo-

Gonzalez, an increase under § 2B1.1(b)(10)(A)(i) was appropriate. Second, the

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government argued that Application Note 2 to § 2B1.6 did not preclude the

application of § 2B1.1(b)(10)(B)(i) because the production of counterfeit credit

cards was at issue.

In his objection to the PSR, Perez opposed the two-level enhancement. He

argued that there was no evidence that he ever possessed device-making

equipment or produced any counterfeit credit cards himself. Perez objected to the

description of offense conduct in paragraph six of the PSR, which stated that Perez

and the CI discussed procuring a skimmer for Calvo-Gonzalez. Perez also

objected to paragraph 14 of the PSR, dealing with Role Assessment, in which the

probation officer determined that Perez was involved in the entire scheme and was

responsible for the entire loss amount of $51,021.01.2 Perez specifically objected

to the sentence in paragraph 14 which states that Perez and Jose Acosta-Oropesa,

who pled guilty in a separate case, both provided the credit card skimmer to

Calvo-Gonzalez. Finally, Perez objected to the loss calculation on the basis that

the calculation was based on the use of other cards by Acosta-Oropesa or someone

else, but not by Perez himself.

At sentencing, Perez objected to the sentence in paragraph six of the PSR

which stated that he and the CI discussed procuring a credit card skimmer for

2
This statement is contained in paragraph 16 of the revised PSR. It was contained in
paragraph 14 of the original PSR.

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Calvo-Gonzales to use while waitressing. The government responded that the

district court could strike that statement from the PSR because the government

would rely on other testimony to establish the conspiracy for sentencing purposes.

The district court struck the sentence from the PSR.

Perez reiterated his objection to the Role Assessment portion of the PSR in

which the probation officer determined that Perez was responsible for the entire

loss amount. Perez stated that Acosta-Oropesa provided the skimmer, not Perez.

The government responded that, as testimony would show, Calvo-Gonzalez told

Special Agent Bryan McCadden that while she was initially given the skimmer by

Acosta-Oropesa, on subsequent occasions she would meet with both Perez and

Acosta-Oropesa and both of them would hand her the skimmer. The government

stated that the hearsay testimony was corroborated by the physical description of

the car that Calvo-Gonzalez entered to deliver the skimmer, which was the same

vehicle in which Perez was arrested. The government also noted that Calvo-

Gonzalez had identified Perez in a picture, and that Acosta-Oropesa implicated

Perez as one of his co-conspirators. Upon consideration of this information and

the factual proffer previously agreed to by Perez, the district court found that there

was sufficient evidence to conclude that Perez was responsible for the entire loss

amount of $51,021.01.

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 The government then made its objection to the probation officer's failure to

assess a two-level increase under U.S.S.G. § 2B1.1(b)(10). The government

conceded that the Sentencing Guideline provision for aggravated identity theft

instructed against imposing a two-level enhancement under § 2B1.1(b)(1) for the

trafficking of a counterfeit access device because that punishment was already

factored into the sentence for Count Two, the aggravated identity theft charge.

The government argued, however, that the two-level enhancement was allowed in

this case because Perez's conduct involved the production of counterfeit access

devices (credit cards) and the use of device-making equipment (the credit card

skimmer).

The district court asked the government to detail the evidence supporting

its contention that Perez produced the counterfeit credit cards. The government

outlined the sequence of events as follows. First, Calvo-Gonzalez skimmed the

credit card numbers. Second, she gave those card numbers to Perez and Acosta-

Oropesa. Third, Perez was arrested with counterfeit credit cards, which were

encoded with the information that was stolen by Calvo-Gonzalez, and which had

the CI's name physically imprinted on them. The government argued that this

evidence proved that cards were produced or manufactured because Calvo-

Gonzalez started out with just account numbers, but in the end there were actual

7
credit cards, magnetically encoded with the CI's name. The government

contended that for Calvo-Gonzalez, Perez, and Acosta-Oropesa to start with

numbers and end with a physical card, there had to be production. The

government also pointed out that the two-level enhancement could be imposed if

the district court found either that device-making equipment was used or

counterfeit cards were produced. The government stated that either prong could

be applied in this case, as counterfeit credit cards were produced and a credit card

skimmer was used.

Perez argued in response that there was insufficient evidence for the district

court to find that he gave a skimmer to Calvo-Gonzalez or that he produced any of

the counterfeit credit cards. He stated that there was no evidence showing that he

was the person who manufactured the cards or possessed any equipment for their

manufacture. While Perez admitted to paying Acosta-Oropesa to manufacture the

counterfeit credit cards, he denied producing them himself. He also denied having

any contact with Calvo-Gonzalez.

The government called Agent McCadden as a witness. He testified that

Calvo-Gonzalez told him that sometimes she would return the skimmer to Perez

and Acosta-Oropesa at the restaurant where she worked, and sometimes she would

travel to meet them. When she met Perez and Acosta-Oropesa at the restaurant,

8
Calvo-Gonzalez would get into either Perez's or Acosta-Oropesa's vehicle and

return the skimmer to them. Agent McCadden testified that Calvo-Gonzalez told

him that Perez and Acosta-Oropesa worked together, and she saw no difference in

their roles. Further, Calvo-Gonzalez informed Agent McCadden that she and

Acosta-Oropesa continued skimming credit card numbers even after Perez was

arrested in order to obtain money to pay Perez's bond.

Relying on the First Circuit case of United States v. Sharapka, 526 F.3d 58

(1st Cir. 2008), and the Eighth Circuit case of United States v. Jenkins-Watts, 574

F.3d 950 (8th Cir. 2009), the government argued that the district court should

apply the § 2B1.1(b)(10) enhancement either because Perez possessed device-

making equipment or because the production of counterfeit access devices was

part of the offense. The government asserted that it had proven both of these

grounds. Perez argued in response that Application Note 2 to § 2B1.6 prohibited

the enhancement, and also that there was insufficient evidence to show that he

possessed device-making equipment or produced counterfeit credit cards.

Following the First and Eighth Circuits, the district court adopted the two-

level enhancement under § 2B1.1(b)(10). The district court found that the

increase applied for both reasons advanced by the government as the offense

involved the possession of device-making equipment and the production of

9
counterfeit access devices. Thus, the total offense level became 12, resulting in a

Sentencing Guideline range of 10 to 16 months' imprisonment for Count One. The

district court sentenced Perez to a term of 12 months on Count One and the

statutorily mandated consecutive term of 24 months on Count Two, for a total of

36 months' imprisonment.

II.

Perez argues on appeal that the district court erred in assessing the two-level

enhancement under § 2B1.1(b)(10). He contends that Application Note 2 to §

2B1.6 precludes the imposition of § 2B1.1(b)(10)'s specific offense characteristic

enhancement in cases where the defendant's sentence is subject to a two-year

consecutive term of incarceration pursuant to 18 U.S.C. § 1028A. Perez argues

that the district court erred in assessing the enhancement under the plain language

of the Sentencing Guidelines. "We review the district court's interpretation of the

Sentencing Guidelines de novo and accept its factual findings unless clearly

erroneous." United States v. Barner, 572 F.3d 1239, 1247 (11th Cir. 2009)

(citation omitted).

Section 2B1.6 states that if a defendant is convicted of aggravated identity

theft under 18 U.S.C. § 1028A, the Guideline sentence is the term of imprisonment

required by statute. Application Note 2 to § 2B1.6 provides:

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 If a sentence under this guideline is imposed in
conjunction with a sentence for an underlying offense,
do not apply any specific offense characteristic for the
transfer, possession, or use of a means of identification
when determining the sentence for the underlying
offense. A sentence under this guideline accounts for
this factor for the underlying offense of conviction,
including any such enhancement that would apply based
on conduct for which the defendant is accountable under
§ 1B1.3 (Relevant Conduct). "Means of identification"
has the meaning given that term in 18 U.S.C. §
1028(d)(7).

U.S.S.G. § 2B1.6 cmt. n. 2.

The First Circuit has determined that § 2B1.6 does not always prohibit the

application of a § 2B1.1(b)(10) enhancement. In Sharapka, 526 F.3d at 59, the

defendant was sentenced to 121 months' imprisonment after he pled guilty to a 13-

count information alleging identity theft, counterfeiting, and mail fraud. The

district court imposed a two-level enhancement pursuant to § 2B1.1(b)(10)(A) for

possession of device-making equipment. Id. On appeal, the defendant asserted

that the enhancement for possession of device-making equipment resulted in

impermissible double counting, and argued that the mandatory consecutive

sentence for his aggravated identity theft conviction precluded application of the

two-level increase for specific offense characteristics under § 2B1.1(b)(10). Id. at

62.

The First Circuit reviewed Application Note 2 to § 2B1.6 and found that the

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section only applied to certain enhancements under § 2B1.1(b)(10). The court

determined that an enhancement under § 2B1.1(b)(10)(C)(i) - the unauthorized

transfer or use of any means of identification unlawfully to produce or obtain any

other means of identification - would be precluded by § 2B1.6. Id. However, the

district court imposed the enhancement because the defendant possessed device-

making equipment, which implicates § 2B1.1(b)(10)(A)(i), not (C)(i). The First

Circuit held that because § 2B1.6 does not cover the possession of device-making

equipment, the district court acted appropriately in applying both the mandatory

minimum under § 2B1.6 and the two-level enhancement under §

2B1.1(b)(10)(A)(i). "To hold otherwise would result in an expansion of the

application of § 2B1.6 beyond the specific characteristics identified by the

Guidelines in the explanatory text." Id.

The Eighth Circuit has also determined that § 2B1.6 only applies to certain

enhancements under § 2B1.1(b)(10). In Jenkins-Watts, 574 F.3d at 961, one

defendant was convicted of thirteen counts of aggravated identity theft in violation

of 18 U.S.C. § 1028A. At sentencing, the district court applied an enhancement

under § 2B1.1(b)(10). On appeal, the defendant argued that § 2B1.6 disallowed

the § 2B1.1(b)(10) enhancement. Id.

The Eighth Circuit reviewed § 2B1.6 and determined that it does not

12
exclude all conduct described in § 2B1.1(b)(10). "For example, the production of

a counterfeit access device or authentication feature is not conduct encompassed

by the prohibition on double counting in the commentary to § 2B1.6." Id. at 962.

The court found that the defendant qualified for the § 2B1.1(b)(10) enhancement

because he produced counterfeit driver's licenses with realistic authentication

features, conduct that § 2B1.6 does not exclude. Id.3

We agree with the First and Eighth Circuits that Application Note 2 to §

2B1.6 does not prohibit the application of all the § 2B1.1(b)(10) specific offense

characteristics. The plain language of Application Note 2 provides that only those

3
While not binding on us, we note that a panel of this Court recently
addressed Application Note 2 to § 2B1.6 as applied to the § 2B1.1(b)(10) specific
offense characteristics. United States v. Doguer, No. 10-12399 (11th Cir. 2011)
(unpublished opinion). The defendant in Doguer argued that the district court
erred by imposing a two-level enhancement under § 2B1.1(b)(10) because he was
also subject to the mandatory two-year consecutive sentence from an aggravated
identity theft charge. He relied on Application Note 2 to § 2B1.6 to support his
position. Id. at *2.

The Court reviewed the issue for plain error and determined that the
defendant could not establish that the district court plainly erred in its application
of the two-level enhancement under § 2B1.1(b)(10). Id. The Court noted that the
limitation on application of specific offense characteristics under Application Note
2 to § 2B1.6 extends only to "transfer, possession, or use of a means of
identification," such as a card, code, account number, or PIN. Id. As the offense
conduct in the case involved both the use of device-making equipment and the
production of counterfeit debit cards, and not the "transfer, possession, or use" of
the debit cards, the Court determined that the "plain language of the relevant
guidelines, commentary, and referenced statutes support the district court's
application of § 2B1.1(b)(10) in this case." Id.
13
specific offense characteristics that are based on the "transfer, possession, or use

of a means of identification" cannot be applied. The district court determined that

the two-level enhancement was appropriate because the offense involved the

possession or use of device-making equipment and because the offense involved

the production of counterfeit access devices. The enhancement was not based on

the "transfer, possession, or use of a means of identification." We find that the

district court did not err in its application of the Sentencing Guidelines, and the

two-level enhancement under § 2B1.1(b)(10) was appropriate.

III.

Perez next argues that there was insufficient evidence to support the district

court's finding that he used device-making equipment. However, we can affirm

the enhancement without addressing that issue in detail. This is because the

district court did not base the enhancement just on the use of device-making

equipment. It also found that an enhancement was appropriate because Perez

produced counterfeit access devices. Perez has not challenged the enhancement

based on the production of counterfeit access devices, and therefore has

abandoned any argument that this alternative ground for the enhancement was

erroneous. See United States v. Gupta, 572 F.3d 878, 887 (11th Cir. 2009)

(holding that the government abandoned any argument about sentences by not

14
addressing them in its brief). Thus, even if we found that there was not sufficient

evidence to support the enhancement based on the use of device-making

equipment, Perez has not shown how the district court erred in applying the §

2B1.1(b)(10) enhancement for the production of counterfeit credit cards.

Accordingly, we affirm the district court on this point.

IV.

Perez's final argument is that the district court erred in holding him

accountable for the total loss amount of $51,021.01.

Perez pled guilty to possessing ten counterfeit credit cards. At sentencing,

he was held accountable for all 60 counterfeit credit cards that were involved in

the skimming operation. Perez argues on appeal that the evidence was

insufficient to connect him to the entire operation. Perez does not dispute that the

total loss amount caused by the credit card skimming operation was $51,021.01,

but argues that the total amount is not attributable to him as relevant conduct. We

review the calculation of losses by the district court for clear error. United States

v. Naranjo, 634 F.3d 1198, 1206 (11th Cir. 2011).

Proper calculation of the Guidelines requires consideration of "all relevant

conduct," not merely charged conduct. United States v. Hamaker, 455 F.3d 1316,

1336 (11th Cir. 2006). Relevant conduct includes "all acts and omissions . . . that

15
were part of the same course of conduct or common scheme or plan as the offense

of conviction." U.S.S.G. § 1B1.3(a)(2). Whether or not charged as a conspiracy,

relevant conduct includes "all reasonably foreseeable acts and omissions of others

in furtherance of the jointly undertaken criminal activity." U.S.S.G. §

1B1.3(a)(1)(B). This includes acts and omissions "that occurred during the

commission of the offense of conviction, in preparation for that offense, or in the

course of attempting to avoid detection or responsibility for that offense." Id. A

defendant is accountable under this provision for the conduct of others that was

both "(i) in furtherance of the jointly undertaken criminal activity; and (ii)

reasonably foreseeable in connection with that criminal activity." U.S.S.G. §

1B1.3, cmt. n. 2. The government bears the burden of proving the loss attributable

to relevant conduct with reliable and specific evidence. United States v. Dabbs,

134 F.3d 1071, 1081 (11th Cir. 1998).

We find that the district court did not err in holding Perez responsible for

the total loss amount of $51,021.01. The government presented evidence at the

sentencing hearing to prove the relevant conduct, and the district court found that

evidence to be reliable. Perez has not shown that evidence to be unreliable or

unbelievable on its face. Upon review of the record, we cannot say that the district

court's finding was clearly erroneous.

AFFIRMED.
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