FILED
NOT FOR PUBLICATION APR 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50211
Plaintiff - Appellee, D.C. No. 2:08-CR-00974-GAF-1
v.
*
MEMORANDUM
WAHID SIDDIÏI,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, Judge, Presiding
Argued and Submitted March 1, 2010
Pasadena, California
Before: RYMER and WARDLAW, Circuit Judges, and KENNELLY,** District
Judge.
Wahid Siddiqi has appealed the sentence imposed by the district court
following his guilty plea to multiple charges of fraud in connection with means of
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable Matthew F. Kennelly, United States District Judge for the
Northern District of Illinois, sitting by designation.
identification in violation of 18 U.S.C. y 1028(a)(7) & (c)(3)(A). Among other
things, Siddiqi challenges the district court's calculation of the loss attributable to
his offenses under U.S.S.G. y 2B1.1. The commentary to that Guideline defines
'actual loss' to include 'the reasonably foreseeable pecuniary harm that resulted
from the offense.' Id. app. note 3(A)(i). 'Reasonably foreseeable pecuniary
harm' means 'pecuniary harm that the defendant µnew or, under the
circumstances, reasonably should have µnown, was a potential result of the
offense.' Id. app. note 3(A)(iv).
An employee of a banµ stole personal information about banµ customers.
Siddiqi obtained some of that information and sold it to a government informant.
The record reflects that no customer suffered any actual harm.
Once the banµ discovered the theft, it notified all of the customers in writing,
established a call center where they could call to obtain more information, and
offered them two years of credit monitoring at the banµ's expense. The district
court included in Siddiqi's loss calculation a proportionate share of the banµ's cost
of providing each of these services. The lion's share consisted of the credit
monitoring service. Had that particular expense been excluded from the loss
calculation, it would have reduced Siddiqi's offense level.
The district court found that all of these expenses constituted reasonably
2
foreseeable pecuniary harm resulting from Siddiqi's offenses. We review that
finding for clear error. United States v. Garro, 517 F.3d 1163, 1167 (9th Cir.
2008).
Expenses that a victim incurs to mitigate the effects of a data loss may, in
appropriate circumstances, constitute reasonably foreseeable pecuniary harm under
the Guideline commentary. See United States v. Pham, 545 F.3d 712, 721 (9th Cir.
2008). In Pham, the victims incurred actual losses as a result of identity theft. We
held that their expenses to resolve account shortfalls and related problems, if
proven, could amount to reasonably foreseeable losses from the fraud.
The record in this case contained no basis to support the district court's
finding that expense the banµ incurred to offer its customers credit monitoring
services was a reasonably foreseeable result of Siddiqi's fraud. In its comments,
the court focused not on foreseeability but rather on whether the banµ had acted
reasonably and had done 'what businesses ought to do.' The fact that the banµ
acted reasonably, however, does not suffice to establish that the expenses it
incurred were reasonably foreseeable. Indeed, the court noted in its comments that
the steps the banµ tooµ were unusual and went beyond the norm. See Sentencing
Tr. 17 ('Countrywide is doing what businesses ought to do. They rarely do . . .
what they did in this - in this situation.'), 20 ('[W]e're in a situation where what
3
this corporation did for a change was to protect its customers'). In addition, the
credit monitoring service arguably went beyond what banµing regulatory
guidelines suggest. We also note that there was no victim impact statement or
other evidence in the record addressing, for example, whether providing this
particular service is typical in similar circumstances or even why the banµ elected
to offer its customers credit monitoring.
Under the circumstances, the district court's finding of reasonable
foreseeability was unsupported in the record and was therefore clearly erroneous.
Because we have found an error in the Guidelines calculation that provided the
starting point for the sentence the district court imposed, we remand the case to the
district court for resentencing. See Gall v. United States, 552 U.S. 38, 51 (2007).
For this reason, we need not consider the other arguments Siddiqi has made on
appeal.
We do not limit the evidence that the district court may consider to the
evidence that was presented at the original sentencing hearing. Rather, we remand
the case on an open record so that both parties can present evidence relevant to the
issue of reasonable foreseeability. See Pham, 545 F.3d at 723.
VACATED AND REMANDED.
4
FILED
United States v. Siddiqi APR 01 2010
No. 09-50211 MOLLY C. DWYER, CLERK
U.S . CO UR T OF AP PE A LS
RYMER, Circuit Judge, dissenting.
I don't thinµ the district court clearly erred in finding it was reasonably
foreseeable that the banµ would act to protect its customers as it did in the
circumstances of this case: the scale of identity theft was huge, and it included,
among other things, the social security number of millions of individuals. Nor do I
agree with the suggestion that foreseeability is somehow capped by prior responses
to unrelated thefts of a different order of magnitude, or by regulations that establish
a floor for what a banµing institution must do. Instead, I would apply United
States v. Pham, 545 F.3d 712, 721 (9th Cir. 2008), to the loss calculation here, and
affirm.