United States v. Albert Caban

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 13-3688
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UNITED STATES OF AMERICA

v.

ALBERT CABAN,
Appellant
_____________

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(No. 1-12-cr-00056-001)
District Judge: Honorable Yvette Kane

Submitted Pursuant to Third Circuit LAR 34.1(a)
July 8, 2014

Before: RENDELL, CHAGARES, and JORDAN, Circuit Judges.

(Filed: July 11, 2014)
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OPINION
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CHAGARES, Circuit Judge.

Albert Caban appeals several aspects of his conviction and sentence. Finding no

merit in any of his contentions, we will affirm.
 I.

Because we write solely for the benefit of the parties, we will only recount the

facts necessary to our disposition. A sting operation by the United States Secret Service,

in conjunction with local law enforcement, discovered a scheme organized by Caban to

steal credit card numbers. In January 2012, a confidential informant introduced an

undercover law enforcement officer to Eddie Pabon, one of Caban’s co-conspirators. The

undercover officer convinced both Pabon and Caban that he worked at a business with

access to credit cards and was willing to steal credit card information and sell the

information to Caban. Caban agreed, and provided the undercover officer with a

skimming device, instructed the officer on its use, and told the officer to skim about

twenty cards before returning it. In conjunction with several financial institutions, law

enforcement officers set up fictitious credit card accounts with low credit limits, and

loaded those credit card numbers onto the skimming device. After the law enforcement

officer returned the device to Caban, the fictitious credit card numbers were used at local

retailers almost immediately.

Caban also provided the device to another co-conspirator, Brooklyn Gelbaugh,

who was employed as a server at a local chain restaurant. Gelbaugh skimmed ten to

fifteen credit cards over a three-day period in late January. The scheme ended on

February 10, 2012, when law enforcement agents executed a search warrant on Caban’s

residence, arrested Caban and several co-conspirators, and seized physical evidence

including a laptop that contained stolen credit card information. In all, bank records

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indicate that the skimmed credit cards were used to make about $3,500 in actual

purchases.

Caban was indicted on bank fraud and related offenses, including aggravated

identity theft in violation of 18 U.S.C. § 1028A(a)(1). As part of its disclosure

obligations, the Government provided the defense with audio and video recordings of the

undercover officer’s meetings with Caban in which Caban explained the scheme and

gave directions to the officer, police reports summarizing various fraudulent credit card

transactions, records from the financial institutions that had been victimized by the

scheme, records from retailers that corroborated the fraudulent transactions, and records

from the search warrant. This production occurred in March of 2012.

On September 4, 2012, Caban made a pro se request for new counsel. Caban felt

as though he was being pressured to accept a plea bargain and claimed that his current

attorney was not pursuing suppression and other pretrial motions. The District Court

granted Caban’s request and appointed new counsel.

The case headed to trial in the spring of 2013. On the Friday before the trial was

to begin, the Government produced an additional 450 pages of discovery materials to the

defense consisting predominantly of reformatted versions of the Government’s earlier

production (to make the various financial records easier on jurors’ eyes). Caban then

made a second request to change counsel. He argued that his attorney was not ready for

trial in light of the new discovery material, that he did not understand the discovery

material, and that his attorney had not filed certain motions. Caban’s attorney stated that

while he would prefer to have more time, he was ready to proceed, and that he had

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investigated the potential grounds for the motions that Caban wanted filed and found

them meritless.

The District Court denied Caban’s motion and offered Caban the choice of

keeping his existing attorney or proceeding to trial pro se. At this point, Caban expressed

an interest in pleading guilty to all of the charges except aggravated identity theft. Caban

maintained that stealing a credit card number was not akin to stealing another’s identity,

and that he was not guilty of this crime. The District Court refused to entertain a guilty

plea from Caban at this point because of his declaration of innocence. The Government

then explained, on the record, that credit card numbers are a form of identity under

federal law, and the court broke for a half-hour recess. At the end of this recess, Caban

agreed to plead guilty to all five counts, and the court, after a thorough colloquy, accepted

his plea.

The Probation Office calculated Caban’s total offense level as 13 and his criminal

history category as VI. The Probation Office included a six-level enhancement in

Caban’s offense level because it found that the loss that the scheme intended was more

than $30,000 and less than $70,000. See U.S.S.G. § 2B1.1(b)(1). The Probation Office

attributed a total intended loss to Caban of $39,211, which consisted of the actual losses

to the financial institutions plus the credit card limits for the compromised cards. The

Probation Office also added a two-level enhancement on account of the fact that Caban

was a leader, organizer, manager, or supervisor of the small conspiracy. See U.S.S.G. §

3B1.1(c). Caban objected to both of these enhancements.

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 The District Court upheld the two-level enhancement for being a leader, but

rejected the application of the six-level enhancement for the amount of intended loss. It

held that the Government had not proven that Caban was aware of the credit limits on the

cards that he had stolen. In accordance with our recent decision in United States v.

Diallo, 710 F.3d 147 (3d Cir. 2013), it concluded that unless the Government could prove

that Caban was aware of the total credit limits on the cards, the only losses that the

Government could attribute to Caban were the actual losses, which were less than $5,000.

Accordingly, Caban’s offense level was reduced to 7, and his advisory Guideline range

reduced to 15 to 21 months of imprisonment (on the bank fraud and related counts, plus a

mandatory 24 months of imprisonment on the aggravated identity theft count). In

sentencing Caban, the court concluded that the lower Guideline range did not take the

seriousness of Caban’s actions into account, and at the request of the Government, the

District Court imposed an above-Guideline sentence of 41 months, plus the mandatory 24

months, for a total term of 65 months of imprisonment. Caban timely appealed.

II.

The District Court had jurisdiction over the alleged violations of federal criminal

law pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a).

III.

A.

Caban first argues that the District Court violated his Sixth Amendment right to

counsel when it denied his second request to substitute counsel on the eve of trial. We

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review a denial of a motion to substitute counsel for abuse of discretion. United States v.

Goldberg, 67 F.3d 1092, 1097 (3d Cir. 1995). A district court abuses its discretion “only

if good cause is shown for the defendant’s dissatisfaction with his current attorney.”

United States v. Gillette, 738 F.3d 63, 78 (3d Cir. 2013) (quotation marks omitted). To

show “good cause,” a defendant must demonstrate “a conflict of interest, a complete

breakdown of communication, or an irreconcilable conflict with an attorney.” Id.

(quotation marks omitted). We will not find a Sixth Amendment violation “unless the

district court’s ‘good cause’ determination was clearly erroneous or the district court

made no inquiry into the reason for the defendant's request to substitute counsel.”

Goldberg, 67 F.3d at 1098.

The District Court did not abuse its discretion in denying Caban’s second motion

for a new attorney because Caban did not demonstrate good cause for such a substitution.

Although Caban may not have felt his attorney was prepared for trial, his attorney stated

that he was, and there was little reason that he would not have been. The new material

that the Government produced to Caban on the eve of trial was largely duplicative of

material that had been in Caban’s possession for over a year. The suppression motion

that Caban wanted to make was legally meritless, and the motion to introduce evidence of

a police witness’s disciplinary proceeding had already been denied. The District Court

did not err in concluding that the general dissatisfaction that Caban expressed about his

attorney was insufficient to warrant further delay in the start of Caban’s trial or to appoint

new counsel.

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 B.

Caban also argues that his guilty plea was not knowing, voluntary and intelligent

because he had previously expressed his innocence to the aggravated identity theft count,

because he was confused about what the aggravated identity theft statute encompassed,

and because he felt vulnerable after the District Court denied his second motion to

substitute counsel. A valid guilty plea must be “knowing, voluntary, and intelligent.”

United States v. Tidwell, 521 F.3d 236, 251 (3d Cir. 2008). This “constitutional

requirement” is “embodied in Federal Rule of Criminal Procedure 11,” United States v.

Schweitzer, 454 F.3d 197, 202 (3d Cir. 2006), which requires a district court to engage in

a colloquy to “determine that the plea is voluntary.” Fed. R. Crim. P. 11(b)(2).

The record here reveals that the District Court’s colloquy adequately complied

with Rule 11, and that Caban’s plea was knowing, voluntary, and intelligent. The District

Court advised Caban of all of his pertinent rights, including his right to go to trial, his

right to counsel, and the presumption of innocence, and informed Caban that he would be

waiving all of these rights, and others, upon pleading guilty. Caban acknowledged his

rights and their waiver. The District Court specifically found that Caban was “fully alert,

competent, and capable of entering an informed plea,” and that his plea was “knowing

and voluntary.” Appendix (“App.”) 76-77. Caban’s disappointment at the District

Court’s proper decision to deny his request for new counsel did not make his plea less

than voluntary.

The District Court also advised Caban of the elements of all of the crimes he was

charged with committing and the factual basis for his guilt. It is true that Caban had

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maintained his innocence on the charge of aggravated identity theft earlier in the

proceedings because he thought that stealing credit card numbers did not amount to

identity theft. Upon hearing Caban profess his innocence, the District Court initially

refused to entertain Caban’s guilty plea. Caban, however, appears to have changed his

mind after the Government explained that one’s credit card number was a form of

identity under federal law, and Caban had time to discuss the matter with his attorney

during a recess prior to entering his guilty plea. Because Caban did not ever deny his role

in obtaining others’ credit card numbers, it can easily be inferred that once the contours

of the law were explained to him, he realized that he indeed had violated the statute

(which he readily confirmed in the Rule 11 colloquy).

C.

Next, Caban argues that the application of a two-level enhancement under the

advisory Guidelines for being a leader or organizer of the conspiracy at sentencing was in

error because the scheme was initiated by the Government and only involved a small

number of participants. In considering whether this enhancement applies, courts consider

a number of factors, including “the degree of participation in planning or organizing the

offense” and “the nature of participation in the commission of the offense.” U.S.S.G. §

3B1.1, comment 4. Whether an individual is a leader, organizer, manager, or supervisor

within the meaning of § 3B1.1(c) of the advisory sentencing Guidelines is a factual

question that we review for clear error. United States v. Barrie, 267 F.3d 220, 223 (3d

Cir. 2001).

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 The District Court made no clear error. Caban supplied both the undercover

officer and at least one other co-conspirator with a credit card skimmer. He instructed

them on how to use the skimmer, when to return it, and which credit cards to target (he

preferred American Express). He was in possession of the laptop computer and the

software necessary to encode new cards with the stolen cards’ numbers. Even though the

scheme was small, he was undoubtedly one of its leaders and exercised supervisory

authority over those doing the credit card skimming.

D.

Finally, Caban argues that his sentence was procedurally unreasonable because the

District Court varied upward without adequately explaining its reasons. A district court

must consider the factors enumerated in 18 U.S.C. § 3553(a) and then “adequately

explain the chosen sentence to allow for meaningful appellate review and to promote the

perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007). “In some

cases, a brief statement of reasons can be legally sufficient.” United States v. Merced,

603 F.3d 203, 215 (3d Cir. 2010) (quotation marks omitted). The given explanation must

suffice to show that the sentencing court “has considered the parties’ arguments and has a

reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United

States, 551 U.S. 338, 356 (2007). We review the procedural reasonableness of a sentence

for abuse of discretion.

The main issue at sentencing was whether the six-level enhancement for a loss

amount greater than $30,000 applied. Application of this enhancement would have set

Caban’s advisory Guideline range at 33 to 41 months of imprisonment. After extensive

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argument, the District Court held that it did not apply. This reduced Caban’s advisory

Guideline range to 15 to 21 months. The Government argued at length for an upward

variance, contending that the actual loss was only about $3,500 because the Government

was able to detect quickly and put an end to Caban’s intended “larger scheme.” App.

125. It argued that “he was starting an operation to do this and he had the equipment and

the devices to do this in an expansive way.” Id.

The District Court accepted the Government’s argument, varied upward, and

imposed 41 months of imprisonment, which coincided with the top end of the rejected

Guideline range. It thought a more severe sentence was appropriate “given the frequency

and extent of the transgressions, the many, many credit cards, and the many, many credit

card holders whose financial well-being was put at risk by this defendant.” App. 132. It

also noted that Caban’s background and criminal history, which involved a host of crimes

involving theft, forgery and access device fraud, warranted an upward variance in order

to “impress upon him the seriousness of the offense that brings him before the court,” as

well as to protect the public from potential future crimes. Id. Although the District

Court’s explanation was brief, it was clear. Further explanation could have set out the

court’s rationale in greater detail, but the explanation given reveals exactly why the court

varied upward and was not an abuse of discretion.

Caban also argues that his sentence was substantively unreasonable. A sentence is

substantively unreasonable “if we are left with the definite and firm conviction that the

district court committed a clear error of judgment in weighing the § 3553(a) factors by

arriving at a sentence that lies outside the range of reasonable sentences dictated by the

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facts of the case.” United States v. Tomko, 562 F.3d 558, 579 (3d Cir. 2009) (en banc)

(quotation marks omitted). “We may not reverse the district court simply because we

would have imposed a different sentence.” United States v. Wise, 515 F.3d 207, 218 (3d

Cir. 2008). Here, we cannot say that “no reasonable sentencing court would have

imposed the same sentence on that particular defendant for the reasons the district court

provided.” Tomko, 562 F.3d at 568. The District Court’s sentence was driven by its

conclusion that the harm that Caban intended was much greater than he was actually able

to commit, and that he had a long record of committing similar crimes. In these

circumstances, its ultimate sentence was not an abuse of discretion.

IV.

We have considered Caban’s remaining arguments and find them without merit.

For the foregoing reasons, we will affirm Caban’s judgment of conviction and sentence.

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