[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
JULY 03, 2001
Nos. 99-10197 and 99-10198
THOMAS K. KAHN
-------------------------------------------- CLERK
D. C. Docket No. 99-00583-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANOOCHER NOSRATI-SHAMLOO,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(July 3, 2001)
Before EDMONDSON, WILSON and MAGILL*, Circuit Judges.
_______________
C Honorable Frank J. Magill, U.S. Circuit Judge for the Eighth Circuit, sitting by
designation.
PER CURIAM:
Appellant-Defendant, MANOOCHER NOSRATI SHAMLOO,
(“Defendant”) appeals his conviction and sentence by the district court for
knowingly and willfully stealing, taking or abstracting mail from or out of the
United States Mail in violation of 18 U.S.C. 1708. Because we see no abuse of
discretion by the district court in admitting evidence, nor clear error in determining
the amount of loss for sentencing purposes, Defendant’s conviction and sentence
are affirmed.
Background
Defendant was observed by a number of residents of the Kendall
neighborhood in the southwest part of Miami removing mail from several
mailboxes in the neighborhood. The residents who had mail removed from their
mail boxes received credit cards in the mail for which they had not applied, were
contacted by credit card companies concerning accounts they had never opened
and were informed by the credit bureaus that accounts had been opened in their
names for which they had not applied. At trial, three witnesses testified that they
saw Defendant take mail out of mailboxes in the neighborhood. Evidence was
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presented that residents whose mail had been taken by Defendant had credit cards
issued to them that they had never requested. Evidence was also presented that
Defendant had two prior convictions for possession of stolen mail.
Defendant was found guilty by the jury. The sentencing judge determined
that the amount of loss in this case was $43,000.00, the amount of the combined
credit limits on the cards obtained through the theft of the mail, and sentenced
Defendant accordingly.
Discussion
A district court’s determination regarding the amount of loss for sentencing
purposes is reviewed for clear error. See United States v. Daniels, 148 F.3d 1260,
1261 (11th Cir. 1998).
The chief issue in this appeal is whether the sentencing court erred in fixing
the amount of intended loss from the theft of credit card applications out of the
United States Mail (in violation of 18 U.S.C. § 1708) at $43,000.00 -- the total
amount of the credit limits on the cards applied for by Defendant -- when the actual
charges made against the cards were less, the evidence was circumstantial and
unclear about whether defendant knew the actual credit limits on the cards, and
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when no evidence shows that Defendant’s intent was something other than to make
use of the full line of credit. The answer is “No.”1
In United States v. Dominguez, 109 F.3d 675 (11th Cir. 1997), we left open
the question of whether the amount of loss attributable to fraudulently obtained
credit cards could be calculated as the full amount of the credit line when there is
no direct evidence that Defendant knew the amount of the credit limits. Id. at 677
n.5. Today, we decide that once a defendant has gained access to a certain credit
line by fraudulently applying for credit cards, a district court does not err in
determining the amount of the intended loss as the total line of credit to which
Defendant could have access, especially when Defendant presents no evidence that
he did not intend to utilize all of the credit available on the cards. See United States
v. Sowels, 998 F.2d 249, 250 (5th Cir. 1993) (where court found the total amount of
the credit card limits was a plausible measure of intended loss when there was no
specific finding that defendant knew what the limits were).
In this case, Defendant objected to the Pre-Sentence Investigation Report’s
determination that the amount of loss was $43,000.00; and therefore the
government had the burden at sentencing of proving the loss for sentencing. See
1
The district court’s rulings on admission of evidence regarding credit cards transactions, and
Defendant’s prior convictions for possession of stolen mail are reviewed for abuse of discretion and
affirmed. The evidence was relevant to establishing Defendant’s motive and intent for removing
mail from several mailboxes in the neighborhood.
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United States v. Bernardine, 73 F.3d 1078, 1080 (11th Cir. 1996). If the intended
loss due to the offense is greater than the loss actually caused, the court may use
the amount of the intended loss for sentencing purposes. See U.S. Sentencing
Guidelines Manuel §2F1.1, cmt. n.7 (1997) (“[I]f an intended loss that the
defendant was attempting to inflict can be determined, this figure will be used if it
is greater than the actual loss.”); U.S. Sentencing Guidelines Manuel §2B1.1, cmt.
n.2 (1997) (“Where the offense involved making a fraudulent loan or credit card
application, or other unlawful conduct involving a loan or credit card, the loss is to
be determined under the principles set forth in the Commentary to §2F1.1 (Fraud
and Deceit).”). A defendant’s intent is often difficult to prove and often must be
inferred from circumstantial evidence. See United States v. Ethridge, 948 F.2d
1215, 1217 (11th Cir. 1991) (recognizing that intent must often be proved by
circumstantial evidence allowing the factfinder to infer intent); Hill v. Kemp, 833
F.2d 927, 930 (11th Cir. 1987) (approving jury instruction that “[i]ntent may be
shown in many ways... It may be inferred from the proven circumstances or by acts
and conduct...”).
In this case, the government presented evidence at the sentencing hearing
that Defendant had stolen mail with the intent of applying for and using credit
cards and that the credit cards for which he applied had an aggregate credit limit of
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$43,000.00.2 Defendant presented no evidence that tended to show that he did not
intend to use all of the credit available on the cards. The evidence presented
allowed the district judge to determine for sentencing purposes that Defendant
intended to utilize all of the credit available on the cards thus intending a loss of
$43,000.00. Cf. United States v. Oates, 122 F.3d 222, 226 n.5 (5th Cir. 1997)
(saying that one who fraudulently endorses a financial instrument intends to gain
access to the funds it represents and that it is the “access to funds [that] is
dispositive” in determining the amount of loss). We conclude that the district
court did not clearly err in fixing the amount of loss at $43,000.00.
Conclusion
The district court did not clearly err in determining the amount of intended
loss by Defendant was $43,000.00.
AFFIRMED.
2
The government presented other evidence that might strengthen the argument that Defendant
intended to utilize all of the credit available on the cards. Defendant had three previous convictions
for similar offenses and therefore has a sophisticated knowledge of the credit card industry, had
made a number of charges on some of the cards and had requested a PIN for one of the cards.
Bernardine, 73 F.3d at 1080-81 (the sentencing court can consider relevant evidence without regard
to its admissibility under the rules of evidence as long as the information is sufficiently reliable to
support its accuracy).
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