Case: 12-11988 Date Filed: 11/19/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11988
Non-Argument Calendar
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D.C. Docket No. 4:11-cr-00045-RH-CAS-5
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
LOMAX LAMAR JENKINS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(November 19, 2012)
Before CARNES, HULL, and MARTIN, Circuit Judges.
PER CURIAM:
Lomax Lamar Jenkins appeals his concurrent 37-month prison sentences for
conspiracy to commit fraud with counterfeit credit and debit cards, in violation of
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18 U.S.C. §§ 371, 1029(a)(1), (b)(2), and (c), and for aiding and abetting, in
violation of 18 U.S.C. §§1029(a)(1), 1029(c), and 2. He contends that the district
court erred in applying a two-level sophisticated means enhancement under
U.S.S.G. § 2B1.1(b)(10)(C) (Nov. 2011).
I.
Jenkins was a member of a crew that defrauded more than 700 people. They
purchased credit or debit card numbers online from “somewhere . . . overseas.”
Then they acquired legitimate credit or debit cards with their names on them and
encoded those cards with the purchased numbers using a laptop and encoder
device.
Armed with those fraudulent cards, Jenkins and others purchased gift cards
from various stores, which they sold online for cash. Sometimes the accomplices
went to different stores, but when they went to the same store, they would text each
other the number of the check-out lane they used to avoid raising a “red flag.” The
cards that failed to work would be taken to an accomplice who was waiting in the
parking lot with his laptop ready for re-encoding.
II.
Although the district court acknowledged that “the level of sophistication
required to get an encoder, copy a card, and engage in this activity is less than it
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used to be,” the court found that the intricate steps involved in the crime
demonstrated sophisticated means. We review for clear error the district court’s
finding that the defendant used sophisticated means. United States v. Ghertler, 605
F.3d 1256, 1267 (11th Cir. 2010). We will not disturb the district court’s finding
unless left with a definite and firm conviction that a mistake was made. Id.
Jenkins contends that using a cell phone to text or a laptop in a car is
“nothing special.” But special equipment does not need to be used in the crime to
justify a finding that sophisticated means were used. See e.g., United States v.
Robertson, 493 F.3d 1327, 1332 (11th Cir. 2007) (affirming the district court’s
imposition of the sophisticated means enhancement when the defendant used
fictitious names, addresses, and entities to disguise his identity). Even crimes
involving simple steps can be committed using sophisticated means if the
combination of all the steps demonstrates sophistication. See Ghertler, 605 F.3d at
1268 (“It is true that aspects of [the defendant’s] scheme were not sophisticated . . .
. Still, the totality of these activities carried out over an extended period of time is
sufficient to support the district court’s finding that [the defendant] used
sophisticated means under our deferential standard of review.”).
Jenkins argues that the way he committed his crimes was not especially
complex when compared with the way this crime is usually committed because one
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of the statutes he violated was written specifically to address fraud involving
innovative, sophisticated uses of technology. The commentary to § 2B1.1(b)(1)(C)
defines sophisticated means as “especially complex or especially intricate offense
conduct pertaining to the execution or concealment of an offense.” U.S.S.G. §
2B1.1(b)(10)(C) cmt. n.8. The commentary does not suggest that for certain
offenses sophisticated uses of technology is required. Instead, it gives this
example of how the guideline might apply: “[I]n a telemarketing scheme, locating
the main office of the scheme in one jurisdiction but locating soliciting operations
in another jurisdiction ordinarily indicates sophisticated means. Conduct such as
hiding assets or transactions, or both, through the use of fictitious entities,
corporate shells, or offshore financial accounts also ordinarily indicates
sophisticated means.” Because Jenkins’ crime involved several complex steps, the
district court did not clearly err by finding that he used sophisticated means.
AFFIRMED.
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