Case: 15-11153 Document: 00513650248 Page: 1 Date Filed: 08/24/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-11153 FILED
Summary Calendar August 24, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
GABRIEL POPA,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:
Gabriel Popa appeals his sentence for attempting to fraudulently possess
fifteen or more unauthorized access devices in violation of 18 U.S.C.
§ 1029(a)(3) and (b)(1). Popa contends that the district court erred in declining
to apply a three-level attempt adjustment under U.S.S.G. § 2X1.1(b)(1). The
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No. 15-11153
court reasoned that Popa was not entitled to the adjustment based on its fac-
tual finding that he had been about to complete all acts necessary for the suc-
cessful completion of the substantive offense when he was apprehended. See
§ 2X1.1(b)(1).
Without challenging that factual finding, Popa asserts that the district
court erroneously overlooked § 2X1.1, comment. (n.4), which triggers the at-
tempt reduction where a defendant has completed only part of an intended
offense but is assessed losses based on his intended completion of the entire
offense. Popa asserts that he was entitled to the reduction because he did not
complete his broader scheme of using the access devices to steal money, yet he
was assessed the entire intended loss of over $200,000, when in fact there were
no actual losses.
In applying § 2X1.1(b), a sentencing court should consider “the substan-
tive offense and the defendant’s conduct in relation to that specific offense.”
Id. at 217 (internal quotation marks and citation omitted). As in the district
court, Popa relies on United States v. John, 597 F.3d 263 (5th Cir. 2015), in
which we found plain error in the district court’s failure to subtract three levels
for a partially completed offense where the defendant was sentenced based on
the conspiracy’s intended losses of almost $1.5 million rather than the actual
losses of about $75,000. The substantive offense in John, however, was fraud
in connection with an access device, which requires both the use of an access
device and an actual loss, and only four of the seventy-six devices were in fact
used to incur losses.
Popa’s reliance on John is misplaced, because for its completion, the sub-
stantive offense of fraudulently possessing fifteen or more unauthorized access
devices does not require any use of the devices or actual losses. See
§ 1029(a)(3), (b)(1). Furthermore, although the loss calculation in John,
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No. 15-11153
597 F.3d at 283–84, was based almost entirely on incomplete offenses, Popa’s
loss calculation was derived largely from his completed possession of 427 access
devices.
More analogous to Popa’s situation is United States v. Thomas,
585 F. App’x 869, 870 (5th Cir. 2014), cert. denied, 135 S. Ct. 1750 (2015), in-
volving the completed offense of the possession of stolen mail, which likewise
does not require actual loss as an element. Finding John, 597 F.3d at 283, to
be distinguishable, we specifically rejected the argument that “the key factor
in a court’s deciding whether to apply the partially-completed-offense reduc-
tion is the amount of criminal activity the defendant still has yet to undertake
in order to cause the intended loss.” Thomas, 585 F. App’x at 870. Instead, we
reiterated that “the focus is on the substantive offense and the defendant’s
conduct in relation to that specific offense.” Id. (internal quotation marks and
citation omitted) (emphasis in Thomas). We thus concluded that the district
court did not plainly err in failing to apply the attempt adjustment in light of
§ 2X1.1, comment. (n.4). Id.
Popa acknowledges that Thomas conflicts with his reasoning. Although
Thomas was decided under a plain-error standard of review, neither its reason-
ing nor the facts of the instant case suggest any error by the district court here,
even under de novo review. See id.; Soto, 819 F.3d at 216. Accordingly, there
is no merit to Popa’s contention that his offense was only partially completed
under § 2X1.1, comment. (n.4). See Thomas, 585 F. App’x at 870; accord United
States v. Granado, 608 F. App’x 247, 248 (5th Cir.) (following Thomas, also on
plain-error review), cert. denied, 136 S. Ct. 423 (2015).
The district court thus did not err in denying Popa an attempt adjust-
ment under § 2X1.1(b)(1). See United States v. Soto, 819 F.3d 213, 216 (5th
Cir. 2016). The judgment of sentence is AFFIRMED.
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