[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 16, 2008
No. 08-10099 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-60206-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KERRICK YOUNG,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 16, 2008)
Before BIRCH, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Kerrick Young appeals his 18-month sentence imposed after he was
convicted on a guilty plea of “conspiracy to commit access device fraud and
aggravated identity theft” in violation of 18 U.S.C. § 371. He contends that the
district court erred in its sentence finding about the amount of fraud loss
attributable to him, arguing that the government failed to prove the loss with
reliable specific evidence. He also contends that the court failed to articulate
sufficient findings to support that amount of loss.
I.
Young agreed to a factual proffer stating that he had participated in a
conspiracy in which he received credit cards and gift cards encoded with stolen
credit card information from another co-conspirator and used those cards to
purchase merchandise, mostly electronics, from a Wal-Mart store. The factual
proffer stated that Young had used unauthorized access devices to “obtain things of
value aggregating at least $1,000.00” but did not further specify the amount of total
loss.
The Presentence Investigation Report stated that the conspirators were
Young and his cousin, Courtney Singh, along with two Wal-Mart employees,
Darrel Pendergrass and Audra McLean. It recounted how on August 8, 9, and 13,
2007, Young and Singh fraudulently purchased $10,614.04 in electronics at Wal-
Mart using credit cards and gift cards encoded with stolen credit card account
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numbers. The PSI also stated that on August 13, 2007, agents observed Singh
fraudulently purchasing three laptop computers and a monitor in separate
transactions with McLean and Pendergrass. Singh exited the Wal-Mart and passed
a laptop computer to Young. Agents approached Singh and Young at their
vehicles and recovered from each of them four credit cards embossed with their
own names but re-encoded with credit card account numbers that did not match the
numbers on the card. Young, Singh, Pendergrass, and McLean were arrested.
The PSI summarized post-arrest statements by Singh, Pendergrass, and
McLean. Singh admitted that he and Young had been taking part in the credit card
fraud scheme to purchase electronics from Wal-Mart for approximately two
months. As part of the scheme Singh received credit cards and gift cards, already
encoded with credit card account numbers, from a man named Alrick Rickards.
Singh and Young then used the cards to purchase merchandise from Wal-Mart and
delivered that merchandise and the credit cards to Rickards. Pendergrass and
McLean both admitted to processing fraudulent transactions for Singh and Young
and to receiving payment in merchandise for their cooperation. The PSI also stated
that Rickards had created a website that was used to sell the fraudulently purchased
merchandise.
As to the loss amount, the PSI stated the total loss amount from the
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conspiracy was $73,015. It did not, however, detail each fraudulent credit and gift
card transaction. The PSI recommended applying an eight-level enhancement,
pursuant to U.S.S.G. § 2B1.1(b)(1)(E), because the loss amount was between
$70,000 and $120,000. That resulted in Young’s advisory guidelines range being
eighteen to twenty-four months’ imprisonment.
Young objected to the statement in the PSI that he was involved in
fraudulent purchases amounting to $73,015. He asserted instead that he “was only
involved in approximately 4 or 5 purchases amounting to approximately $10,000.”
Young also separately objected to the eight-level enhancement under U.S.S.G. §
2B1.1(b)(1)(E) because it overstated his involvement in the conspiracy.
The district court held a joint sentencing hearing for Young and Singh. At
that hearing Young renewed his objection that the PSI overstated the loss amount
attributable to him. He pointed out that no loss amount was specified in the plea
agreement or the factual proffer. Young argued that it was inconsistent with the
guidelines to hold him accountable for the full amount of loss because he did not
design the conspiracy and profited very little from it. He also argued that it was
not reasonably foreseeable for him that there would be more than $73,000 in losses
because he was “really more in the line of a courier type individual” who made
purchases and gave the merchandise to another person. Young did concede that
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“the scope of criminal liability may include the seventy-three thousand dollars as a
conspiracy,” but contended that “the scope of sentencing liability” for him was
closer to $10,000.
The district court, after hearing from the government and considering
U.S.S.G. § 1B1.3 and 2B1.1(b)(1)(E), determined by a preponderance of the
evidence that the loss amount was between $70,000 and $120,000. The district
court found “particularly probative” the commentary in U.S.S.G. § 1B1.3
regarding jointly undertaken criminal activity and reasonable foreseeability in
connection with criminal activity.
The district court calculated a guidelines range of eighteen to twenty-four
months and sentenced Young to eighteen months of imprisonment, two years of
supervised release, and $73,015 in restitution. After sentencing, the district court
solicited objections “to the Court’s finding of fact or to the manner in which
sentence was pronounced,” and Young renewed his objection to the district court’s
determination as to the loss amount.
II.
Young challenges on two grounds the eight-level enhancement under
U.S.S.G. § 2B1.1(b)(1)(E) that was applied in sentencing him, contending that: (1)
the government failed to carry its burden of proving the amount of loss attributable
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to Young with reliable and specific evidence; and (2) the district court failed to
make adequate factual findings regarding the amount of loss attributable to
Young.
A.
Under the advisory sentencing guidelines, a defendant may be held
accountable for “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). To be held responsible for the conduct of others, the conduct
must be both (1) “in furtherance of the jointly undertaken criminal activity” and (2)
“reasonably foreseeable in connection with that criminal activity.” Id. § 1B1.3
cmt. n.2; United States v. Hunter, 323 F.3d 1314, 1319-20 (11th Cir. 2003). When
determining the loss amount attributable to a particular defendant convicted of a
conspiracy offense, the district court must “first determine the scope of criminal
activity the defendant agreed to undertake, and then consider all reasonably
foreseeable acts and omissions of others in the jointly undertaken criminal
activity.” United States v. McCrimmon, 362 F.3d 725, 731 (11th Cir. 2004)
(quotations marks omitted). The government bears the burden of proving the loss
amount with reliable and specific evidence. United States v. Medina, 485 F.3d
1291, 1304 (11th Cir. 2007); United States v. Gupta, 463 F.3d 1182, 1200 (11th
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Cir. 2006).
Young does not question the fact that the total amount of loss to Wal-Mart
caused by the conspiracy was not $73,015. He conceded at the sentencing hearing
that “the scope of criminal liability may include the seventy-three thousand dollars
as a conspiracy.” So, the total loss being $73,015 is a fact that is deemed admitted
for sentencing purposes, United States v. Shelton, 400 F.3d 1325, 1329–30 (11th
Cir. 2005), leaving as the only question whether the district court erred in
attributing that total amount of loss Young for sentencing purposes.
Young’s admissions in his plea agreement and in factual proffer, as well as
parts of the PSI support the attribution of the entire loss amount to Young. He
admitted in the factual proffer that from June 10, 2007 to August 13, 2007, he
participated in a conspiracy in which he received credit and gift cards encoded with
stolen credit card information from another co-conspirator and used those cards to
purchase merchandise, mostly electronics, from Wal-Mart. Young admitted to the
facts in the PSI that: (1) he made fraudulent electronics purchases at Wal-Mart on
August 12, 2007; (2) he was present at Wal-Mart on August 13, 2007 when Singh
made fraudulent electronics purchases, including lap top computers and that Singh
passed one of them to him as Singh left the store; and (3) he had four credit cards
encoded with stolen account information in his possession when he was arrested.
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In addition, by failing to object to them Young admitted to the accuracy of the
PSI’s summary of the post-arrest statements of his co-conspirators, including
Singh’s statement that he and Young participated in the credit card fraud scheme
for two months victimizing Wal-Mart by obtaining merchandise to which they
were not entitled.
As we have already noted, Young admitted that Wal-Mart’s total loss
because of the conspiracy was $73,015. Young clearly played a key role in the
conspiracy by purchasing merchandise using the fraudulent cards, assisting Singh
while he did so, and delivering the merchandise to Rickards to be resold. We
readily conclude that the district court did not clearly err in determining that
Singh’s purchases were acts committed in furtherance of the jointly undertaken
criminal activity that were reasonably foreseeable to Young, and attributing the
entire loss amount to Young, which justified application of the eight-level
enhancement under U.S.S.G. § 2B1.1(b)(1)(E).
B.
In order to enhance a defendant’s sentence based on the acts of any others, a
district court “must first make individualized findings concerning the scope of
criminal activity undertaken by a particular defendant.” Hunter, 323 F.3d at 1319;
see also Gupta, 463 F.3d at 1200 (“[A] district court must make factual findings
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sufficient to support the government's claim of the amount of fraud loss attributed
to a defendant in a PSI.”). After making these findings, the district court can then
determine whether the conduct was reasonably foreseeable. Hunter, 323 F.3d at
1319.
Young did not object in the district court that there were insufficient fact
findings to support the loss calculation, even though the district court solicited
objections from the parties after sentencing. As a result, we review this issue
solely for plain error, which means that we will reverse only where: (1) an error
occurred, (2) the error was plain, (3) the error affected substantial rights, and (4)
the error seriously affects the fairness, integrity or public reputation of judicial
proceedings. United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005).
Although the district court did not make detailed factual findings as to the
scope of criminal activity undertaken by Young, the court did state that it had
found “particularly probative” the commentary to U.S.S.G. § 1B1.3 on relevant
conduct for jointly undertaken activity. And Young did admit to the facts that
established his role in the conspiracy, that he was a key player. Young admitted he
was one of two individuals who received credit cards and gift cards encoded with
stolen credit card information, used the cards to make fraudulent purchases of
merchandise from Wal-Mart, and delivered the merchandise and credit cards to
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Rickards, the individual who sold the merchandise. Thus, we cannot say that the
district court committed plain error in this respect. Moreover, even if the district
court’s failure to spell out its findings more explicitly was error and it was plain,
Young has not established that the error affected his substantial rights, which
requires a showing of a reasonable probability of a different sentence if the error
had not been made. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct.
1770, 1777–78 (1993); United States v. Rodriguez, 398 F.3d 1291, 1299–1306
(11th Cir. 2005). There is no reasonable probability that if the district court had
been more explicit in its findings about the attribution of loss, Young would have
received a lesser sentence.
AFFIRMED.
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