[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 7, 2006
No. 05-14991 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20263-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO CARRALERO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 7, 2006)
Before ANDERSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Ricardo Carralero appeals his 121-month total sentence, imposed after he
pleaded guilty to conspiracy to traffic in one or more unauthorized access devices
(Count 1), trafficking in one or more counterfeit access devices (Count 2),
possession of 15 or more counterfeit and unauthorized access devices (Count 3),
and possession of device-making equipment (Count 4), violations of 18 U.S.C.
§§ 1029(b)(2), (a)(1), (a)(3), and (a)(4), respectively. On appeal, he argues that the
district court imposed an unreasonable sentence based on an incorrect calculation
of the amount of loss and plainly erred by considering his criminal history and
prior convictions when calculating his guideline range and imposing a sentence
under 18 U.S.C. § 3553(a). For the reasons set forth more fully below, we affirm.
At his plea colloquy, Carralero admitted to the following facts. Beginning in
December 2004, Carralero recruited and hired a number of individuals to swipe
customers’ credit cards using a credit card skimming device to capture the cards’
account numbers and the customers’ information. Carralero would then verify the
authenticity of the credit card numbers, and, after verification, he would pay the
individuals for each skimmed number he received. The numbers were skimmed
from customers of businesses located throughout the Southern District of Florida,
and Carralero would use the unauthorized credit card number to produce a variety
of fraudulent access devices such as fraudulent credit cards and gift cards. In
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addition, Carralero personally used the unauthorized access devices to purchase
merchandise and goods. From December 2004 through March 18, 2005, Carralero
possessed 112,000 unauthorized credit cards, which he used or intended to use to
produce unauthorized access devices. The government alleged that Carralero
caused $56,020,000 of loss, to which Carralero reserved objection. His plea was
accepted as knowing and voluntary.
A presentence investigation report (PSI) found that Carralero was
responsible for 112,204 unauthorized access devices and further identified at least
20 corporate victims. Each unauthorized device was assessed a loss value of $500,
for a total loss amount of $56,102,000. The PSI set Carralero’s base offense level
at 6, pursuant to U.S.S.G. § 2B1.1(a).1 Next, relevant to the appeal, Carralero was
assessed a 24-level enhancement because the amount of loss was greater than $50
million, but less than $100 million, pursuant to U.S.S.G. § 2B1.1(b)(1)(M).
Carralero was also assessed a two-level enhancement because the offense involved
10 or more victims, U.S.S.G. § 2B1.1(b)(2)(A). Carralero’s total offense level was
set at 33. Carralero’s criminal history placed him in category III, which, at offense
level 33, provided for an advisory sentencing range of 168 to 210 months’
1
The PSI grouped all four counts together because they involved substantially the same
harm, and, therefore, the conspiracy charge in Count 1 was used to establish the base offense
level.
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imprisonment.
Relevant to this appeal, Carralero objected to the loss calculation, arguing
that the 112,204 devices attributed to him were not actually access devices that he
possessed with the intent to defraud, and, in the alternative, requested a downward
departure, arguing that the 24-level increase overstated the seriousness of his
offense. Second, he objected that the PSI only listed nine victims. Finally, in a
sentencing memorandum, Carralero argued that the PSI’s recommended sentencing
range was unreasonable in light of the sentencing factors set forth at 18 U.S.C.
§ 3553(a).
At sentencing, Carralero clarified his objection to the loss amount, arguing
that the government had the burden of proving that 112,000 or so numbers it found
were actually access devices. The government responded that it had not verified
every number as a credit card number because the task was too staggering to
complete. Instead, it had done a representative sampling, and not one of the
numbers from the list had come back as anything other than a legitimate credit card
number. Carralero disputed that the numbers were credit card numbers, and the
district court noted that it was “unusual for someone to have rolls and rolls of
credit card numbers that were not unauthorized.” The court believed that the loss
amount was clearly more than what the defendant conceded, but offered the parties
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a chance to work out an agreement on a number for the loss, which they accepted.
Ultimately, Carralero and the government, to avoid an evidentiary hearing, agreed
to a loss amount of more than $7 million, which would provide for a 20-level, as
opposed to 24-level, enhancement. The government further noted that the
agreement was premised upon an understanding that it would recommend a
sentence at the high end of the guidelines range.
The court also found that there were more than 10 victims by a
preponderance of the evidence, and, therefore, the two-level enhancement was
sustained. The court further denied Carralero’s motion for a downward departure.
Based on Carralero’s agreed-to loss amount and the court’s rulings, Carralero’s
offense level was set at 29, which, at criminal history category III provided for a
sentencing range of 108 to 135 months’ imprisonment.
The court then noted that Carralero had a substantial criminal history,
including prior involvement in possessing counterfeit credit cards. The court
stated that it would take into consideration Carralero’s prior history of fraud and
theft, as well as other § 3553(a) factors when imposing its sentence. Having
considered the factors, as well as Carralero’s sentencing memorandum, the court
found that Carralero had committed a very serious crime and his sentence should
reflect that seriousness as well as serve as a deterrent to future criminal conduct.
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Upon considering the § 3553(a) factors, the statements of the parties, and the PSI,
the court found that a mid-range sentence of 121 months’ imprisonment was a
reasonable sentence. Thus, the court imposed 60 months as to Count 1, 120
months as to Counts 2 and 3, and 121 months as to Count 4, with all terms of
imprisonment to run concurrently.
While Carralero calls his first argument on appeal a reasonableness
argument, his challenge to his sentence is essentially that the district court
miscalculated his guidelines range because there was no evidence to support its
findings regarding the loss amount or the number of victims. Specifically, he
argues that, despite the fact that he agreed to the loss amount, the district court
used, or would have used, an inappropriate legal standard for measuring the loss
because it would have permitted the government to set a loss valuation based on
credit card numbers that had not been verified as used by Carralero. As to the
number of victims, Carralero argues that the government failed to establish a link
between the 20 alleged victims and the 112,000 some unauthorized credit card
numbers attributed to Carralero. Finally, Carralero argues that his sentence,
combined with the incorrect guidelines calculations, was unreasonable because the
§ 3553(a) factors favored a lower sentence.
Where a defendant challenges his overall sentence, we review for
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unreasonableness. United States v. Winingear, 422 F.3d 1241, 1244-45 (11th Cir.
2005); United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 765-66, 160
L.Ed.2d 621 (2005) (holding that appellate courts review sentences for
unreasonableness in light of the § 3553(a) factors). However, before conducting a
reasonableness review of the ultimate sentence imposed, we will “first determine
whether the district court correctly interpreted and applied the guidelines to
calculate the appropriate advisory Guidelines range.” United States v. McVay, 447
F.3d 1348, 1353 (11th Cir. 2006). We review de novo a district court’s application
and interpretation of the guidelines, but review the factual findings only for clear
error. United States v. Owens, 447 F.3d 1345, 1346 (11th Cir. 2006).
The Guidelines provide for varying levels of enhancement depending on the
amount of loss involved. See U.S.S.G. § 2B1.1(b)(1)(A)-(P). We have held that a
“sentencing court need only make a reasonable estimate of the loss, given the
available information.” United States v. Lee, 427 F.3d 881, 893 (11th Cir. 2005).
The Guidelines further provide that in cases involving stolen or counterfeit credit
cards and access devices, 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.” U.S.S.G. § 2B1.1, comment. (n.3(F)(I)). As for victims,
if the offense involved 10 or more victims, a two-level enhancement is added.
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U.S.S.G. § 2B1.1(b)(2)(I).
In the instant case, the district court did not err by applying a 20-level
enhancement based on $7 million of loss because Carralero agreed to that amount
in lieu of the evidentiary hearing that the district court was willing to hold. Thus,
we conclude that the district court simply gave Carralero what he requested and
agreed to, and, therefore, any error was invited and not reversible. See United
States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (noting that invited error is
implicated when a party induces or invites the district court into making an error
and this Court will not even invoke plain error review where the error is invited).
To the extent Carralero claims that the district court induced him to agree to
a $7 million loss amount, the contention is without merit. The district court
contemplated having witnesses testify that they had analyzed a sample of the
112,000 credit card numbers and confirmed that all were unauthorized. The court
believed that a representative sampling would be sufficient, and the government
explained that it would be a “staggering” task to analyze each and every number.
Carralero clearly could have required the government to present evidence, but
instead chose to forego that opportunity, and in so doing may have benefitted
himself greatly. Based on a minimum of $500 per unauthorized credit card
number, as contemplated in the guidelines, a loss amount of $7 million accounts
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for a mere 14,000 of the 112,000 numbers. Given that Carralero admitted to
possession of 112,000 unauthorized credit cards during his plea colloquy, the $7
million figure was a significant departure. His decision to accept that number
appears to be a tactical decision, and we conclude that any error was, as noted
above, invited.2
As for the number of victims, the PSI identified no fewer than 20 corporate
victims, although at the time the PSI was issued, only 7 had come forward with the
losses actually suffered. That 13 others had not yet assessed their losses did not
mean that they were not victims. In fact, as best as can be discerned, Carralero’s
original objection was based on an earlier version of the PSI that identified only
nine victims. At sentencing, when faced with the amended PSI listing 20
identifiable victims, Carralero’s argument seemed to be that the government
needed to link the victims to the 112,000 credit card numbers, but that step seems
unnecessary in light of the fact that Carralero admitted to possessing the numbers
and the PSI identified the victims. While it would have been helpful to have the
specifics, it does not make sense that the probation office would have just made up
2
Carralero makes a passing argument that the district court should only have considered
those unauthorized access devices pleaded in the indictment. However, this argument is
meritless because the district court was permitted to make factual findings by a preponderance of
the evidence that went beyond the letter of the charges in the indictment at sentencing under the
advisory guidelines. See United States v. Chau, 426 F.3d 1318, 1324 (11th Cir. 2005).
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the names of 20 corporate victims. Instead, common sense says that some of the
numbers were matched back to certain identifiable victims, some of whom were
still processing their losses—not surprising in light of the vast number of credit
card numbers involved. At the time of sentencing, the government had to request a
later hearing to determine restitution because, even at that stage of the case, not all
of the victims or losses had been fully identified. Thus, we conclude that the
district court did not clearly err by finding that there were more than 10 victims
involved, and, therefore, the two-level enhancement was appropriately applied.
Lastly, to the extent Carralero argues that his sentence was unreasonable in
light of the § 3553(a) factors, his argument lacks merit. We have rejected the
notion that a sentence within the guidelines is per se reasonable, although “the use
of the Guidelines remains central to the sentencing process.” United States v.
Talley, 431 F.3d 784, 787 (11th Cir. 2005). We have further stated that, “there is a
range of reasonable sentences from which the district court may choose, and when
the district court imposes a sentence within the advisory Guidelines range, we
ordinarily will expect that choice to be a reasonable one.” Id. at 788.
Here, the district court considered the § 3553(a) factors and determined that,
among other things, Carralero had a “substantial criminal history” that included
prior involvement with counterfeit credit cards. The court found that Carralero had
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committed a “serious crime” and determined that his sentence needed to reflect the
seriousness of the crime, provide adequate punishment, and deter future criminal
conduct. Thus, after considering the statements of the parties, the PSI, and the
§ 3553(a) factors, the court found a mid-range sentence of 121 months’
imprisonment appropriate. Given the vast number of unauthorized credit cards
involved in this case, the district court would have been justified in sentencing
Carralero to a lengthier term of imprisonment, but took great care in imposing the
sentence it did. We cannot say that Carralero’s sentence was unreasonable.
Next, Carralero argues that, in light of Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S.
296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543
U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 421 (2005), the district court violated his
Sixth Amendment right to a jury and Fifth Amendment right to an indictment when
it enhanced his sentencing range on the basis of uncharged prior convictions, both
under the guidelines and as part of the § 3553(a) sentencing factors.
Where, as here, Carralero failed to lodge a constitutional objection to his
sentence on grounds that the district court improperly enhanced his sentence in
violation of his Fifth Amendment right to an indictment and Sixth Amendment
right to a jury, we will review only for plain error. United States v. Rodriguez, 398
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F.3d 1291, 1298 (11th Cir), cert. denied, 125 S.Ct. 2935 (2005). “An appellate
court may not correct an error the defendant failed to raise in the district court
unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights.”
Id. “If all three conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. We have held
that there are two possible Booker errors, the first being the constitutional error of
extra-verdict sentence enhancements, and the second being the statutory error of
applying the guidelines in a mandatory fashion. United States v. Mathenia, 409
F.3d 1289, 1291 (11th Cir. 2005).
Post-Booker, we have held that nothing in Booker disturbed the Supreme
Court’s holdings in Almendarez-Torres or Apprendi, and that a district court,
therefore, does not err by relying on prior convictions to enhance a defendant’s
sentence. See United States v. Gibson, 434 F.3d 1234, 1246-47 (11th Cir. 2005).
We have further held that until the Supreme Court explicitly overrules it,
Almendarez-Torres will continue to be followed. Id. at 1247 (“Though wounded,
Almendarez-Torres still marches on and we are ordered to follow.”).
Moreover, as the government points out, Carralero never objected to the
prior convictions listed in his PSI, and, therefore, those convictions are deemed
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admitted. United States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (holding
that, where the defendant did not challenge the relevant facts in the PSI, those facts
were deemed admitted, and no constitutional error occurred under Booker). In any
event, the court was permitted to make factual findings regarding Carralero’s prior
convictions and factor them into its guideline calculations because it correctly
understood the guidelines to be only advisory. Chau, 426 F.3d at 1324.
Accordingly, no Sixth Amendment violation or statutory error occurred.
Similarly, the court properly considered Carralero’s criminal history under
§ 3553(a) because that section explicitly directs courts to consider the history and
characteristics of the defendant. 18 U.S.C. § 3553(a)(1). Moreover, § 3553(a) also
directs courts to impose a sentence that promotes respect for the law, affords
adequate deterrence, and protects the public from further crimes of the defendant.
Id. § 3553(a)(2)(A)-(C). Carralero’s criminal history is relevant to all of these
considerations, and, therefore, the district court did not err by considering
Carralero’s prior convictions.
Lastly, to the extent that Carralero argues that the prior convictions were
required to be alleged in the indictment, neither Apprendi, Blakely, nor Booker
implicated the Fifth Amendment, and, in any event, prior convictions were
explicitly excluded from the rule that extra-verdict findings are unconstitutional if
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they are binding and mandatory. Booker, 543 U.S at 244, 125 S.Ct. at 756.
Furthermore, we have rejected the notion that a defendant has a Fifth Amendment
right to have prior convictions that trigger a Guidelines enhancement found by a
grand jury and charged in his indictment because the problem with extra-verdict
enhancements is their use in a mandatory guidelines system, which is no longer an
issue in this case because the district court was not bound by the guidelines. United
States v. Thomas, 446 F.3d 1348, 1355 (11th Cir. 2006); see also Gibson, 434 F.3d
at 1249 (“Fifth and Sixth Amendment concerns expressed in Apprendi, Blakely
and Booker are not implicated when a defendant’s sentence is enhanced based on
his prior convictions. . . . As far as his prior convictions are concerned, [the
defendant] had no Fifth or Sixth Amendment rights to waive.”).
Based on the foregoing, we conclude that the district court did not commit
any error, plain or otherwise, by considering Carralero’s prior convictions and
criminal history and did not impose an unreasonable sentence in light of the loss
amount and number of victims. We, therefore, affirm.
AFFIRMED.
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