UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4132
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WEN BIN CHEN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00085-TDS-5)
Submitted: December 18, 2012 Decided: December 28, 2012
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Matthew G. Pruden, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte,
North Carolina, for Appellant. Ripley Rand, Acting United States
Attorney, Frank J. Chut, Jr., Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wen Bin Chen appeals from his fifty-six-month sentence
imposed pursuant to his guilty plea to conspiracy to commit
access device fraud and aggravated identity theft. Chen’s
conspiracy involved obtaining credit card account numbers in
order to make credit cards with fictitious names and then using
the counterfeit credit cards to purchase gift cards. On appeal,
he contends that the district court erred in calculating his
loss amount for sentencing based upon 419 stolen credit card
numbers. We affirm.
When reviewing the district court’s application of the
Sentencing Guidelines, we review findings of fact for clear
error and questions of law de novo. United States v. Allen, 446
F.3d 522, 527 (4th Cir. 2006). In its determination of the
amount of loss for Guidelines purposes, “[t]he [district] court
need only make a reasonable estimate . . . , [and] the court’s
loss determination is entitled to appropriate deference.” U.S.
Sentencing Guidelines Manual § 2B1.1 cmt. n.3(C) (2011).
Further, when calculating the amount of loss attributable to a
defendant, the court must determine the “scope of the criminal
activity the defendant agreed to jointly undertake,” as well as
“consider all reasonably foreseeable acts and omissions of
others in the jointly undertaken criminal activity.” See United
States v. McCrimmon, 362 F.3d 725, 731 (11th Cir. 2004). Chen
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does not dispute the factual evidence of the scope of his
participation in the conspiracy, but rather disputes the
conclusions to be drawn from it. Specifically, Chen contends
that the credit card numbers in his co-conspirators’ sole
possession could not have been foreseen by him because he had no
involvement in obtaining credit card numbers or manufacturing
the fraudulent cards. According to Chen, the evidence only
supported the conclusion that he assisted in purchasing gift
cards with fraudulent credit cards.
We conclude that the district court did not err by
finding that the acts of Chen’s co-conspirators were reasonably
foreseeable to Chen. Chen was involved in the scheme on an
ongoing basis, and thus, he knew or should have known that the
credit cards in his possession or in the possession of the
conspirators in the vehicle he was driving were not the only
fraudulent credit card numbers possessed by the conspiracy. The
record contained a plethora of evidence connecting Chen to the
conspirators that possessed the bulk of the stolen credit card
numbers, including evidence that the scheme was carried out in a
similar manner on more than one occasion. On just the occasion
of Chen’s arrest, he and the passengers in his car were found in
possession of 41 counterfeit credit cards. The day before, Chen
and his passengers purchased at least 212 gift cards at various
stores and worth approximately $21,200. As such, Chen clearly
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knew that he was involved in an enterprise centered on large
numbers of counterfeit credit cards used to purchase large
numbers of gift cards. Accordingly, the district court’s
conclusion that the 419 recovered credit card numbers were
reasonably foreseeable to Chen was not clearly erroneous.
As such, we affirm Chen’s sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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