Case: 12-11845 Date Filed: 10/12/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11845
Non-Argument Calendar
________________________
D.C. Docket No. 4:11-cr-00051-RH-CAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RIQUELME AVILA PADRON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(October 12, 2012)
Before TJOFLAT, CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 12-11845 Date Filed: 10/12/2012 Page: 2 of 5
Riquelme Avila Padron appeals his sentence of 21 months’ imprisonment
imposed after he pled guilty to access device fraud, in violation of 18 U.S.C.
§ 1029(a)(2) and (c). At sentencing, the district court applied a two-level increase
to his base offense level, pursuant to U.S.S.G. § 2B1.1(b)(11)(B)(i), because it
determined that the underlying offense involved the production of the counterfeit
credit cards that Padron used during the offense. On appeal, Padron argues that
the district court erred in applying the § 2B1.1(b)(11)(B)(i) increase because there
is no evidence linking him to the production of the cards, as opposed to his use of
the cards. According to Padron, because he was individually charged, his actual
and relevant conduct did not extend to the actions of third parties. Padron
contends that although someone must have produced the cards, there was no nexus
between who produced the cards and Padron.
We review a district court’s factual findings for clear error and, in most
cases, review a district court’s application of the Guidelines to the facts with due
deference, which is equivalent to clear error review. United States v. Rothenberg,
610 F.3d 621, 624 (11th Cir. 2010); see United States v. Barrington, 648 F.3d
1178, 1202-03 (11th Cir. 2011) (reviewing the district court’s finding as to
whether a defendant’s offense involved the production of unauthorized access
devices for clear error and determining that the court properly applied a two-level
2
Case: 12-11845 Date Filed: 10/12/2012 Page: 3 of 5
increase pursuant to U.S.S.G. § 2B1.1(10)(B)).1 We have previously stated that
there is no clear error in cases where the record supports the district court’s
findings. United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002). Thus,
there is no clear error where the sentencing court fails to make individualized
findings regarding the scope of a defendant’s activity, but the record supports the
court’s determination with respect to offense conduct, including the imputation of
others’ unlawful acts to the defendant. Id.; see United States v. De Varon, 175
F.3d 930, 939-40 (11th Cir. 1999) (en banc) (providing that, in making the
ultimate determination as to whether a minor role reduction applies, pursuant to
U.S.S.G. § 3B1.2, the sentencing court is not required to make any specific
subsidiary findings). A district court’s choice between two permissible views of
the evidence is not clearly erroneous. De Varon, 175 F.3d at 945. We must be left
with a definite and firm conviction that the district court has committed a mistake
in order for its finding to be clearly erroneous. Rothenberg, 610 F.3d at 624.
Under U.S.S.G. § 2B1.1(b)(11)(B)(i), a two-level increase applies where an
offense involved the production or trafficking of any unauthorized access device
or counterfeit access device. An “access device” includes a card or an account
1
In 2011, U.S.S.G. § 2B1.1(b)(10) was redesignated as § 2B1.1(b)(11), without substantive
change. See U.S.S.G. App. C, Amend. 749.
3
Case: 12-11845 Date Filed: 10/12/2012 Page: 4 of 5
number that can be used to obtain a thing of value. 18 U.S.C. § 1029(e)(1); see
Barrington, 648 F.3d at 1201 (defining “access device” as used in
§ 2B1.1(b)(10)(B)), cert. denied, 132 S.Ct. 1066 (2012). The term “produce”
includes the terms “design, alter, authenticate, duplicate, or assemble.” 18 U.S.C.
§ 1029(e)(4); see U.S.S.G. § 2B1.1, comment. (n.9).
The Guidelines provide that specific offense characteristics are based on a
defendant’s relevant conduct. See U.S.S.G. § 1B1.3(a); see also U.S.S.G. § 1B1.1
comment. (n.1(H)) (defining “offense” as the offense of conviction and all relevant
conduct under § 1B1.3). Relevant conduct includes all acts and omissions
committed by the defendant, as well as all reasonably foreseeable acts and
omissions of others in furtherance of jointly undertaken criminal activity.
U.S.S.G. § 1B1.3(a)(1)(A) and (B). To determine the defendant’s accountability
for the conduct of others, the court must first determine the scope of the criminal
activity the particular defendant agreed to jointly undertake. U.S.S.G. § 1B1.3,
comment. (n.2); United States v. Hunter, 323 F.3d 1314, 1319 (11th Cir. 2003)
(describing the findings a district court must make before holding a defendant
accountable for the conduct of others). Then, the court must determine whether
the conduct of others was in furtherance of, and reasonably foreseeable in
connection with, the criminal activity jointly undertaken by the defendant.
4
Case: 12-11845 Date Filed: 10/12/2012 Page: 5 of 5
U.S.S.G. § 1B1.3, comment. (n.2). If so, then that conduct is attributable to the
defendant as relevant conduct. Id.
The undisputed facts in Padron’s presentence investigation report
demonstrate that there was jointly undertaken criminal activity, because Padron
agreed at a meeting with a friend to use credit cards, provided by that friend, to
obtain things of value. The fact that those counterfeit cards were embossed with
Padron’s name demonstrates that there was a nexus between the jointly undertaken
criminal activity and the production of the cards, such that it could be inferred that
someone involved in the joint criminal activity produced the cards in furtherance
of that activity. Thus, the district court properly applied the two-level increase
because it did not clearly err in its determination that the offense, which included
all relevant conduct, involved the cards’ production, as the record supports its
finding. Accordingly, we affirm Padron’s sentence.
AFFIRMED.
5