United States Court of Appeals,
Eleventh Circuit.
No. 96-4526
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Mario DOMINGUEZ, a.k.a. German Oliva, Defendant-Appellant.
April 7, 1997.
Appeal from the United States District Court for the Southern
District of Florida. (No. 95--656-Cr), Stanley Marcus, District
Judge.
Before ANDERSON and BLACK, Circuit Judges, and KRAVITCH, Senior
Circuit Judge.
KRAVITCH, Senior Circuit Judge:
After pleading guilty to conspiring to commit credit card
fraud,1 Mario Dominguez appeals his sentence as excessive in light
of the loss occasioned by his conduct. We affirm.
I.
When Secret Service Special Agent Roberto Villanueva learned
that Antonio Gonzalez was in the market to sell stolen and
counterfeit credit cards, he arranged an undercover sting of
Gonzalez's operation. Upon meeting Gonzalez, Special Agent
Villanueva expressed an interest in doing business and purchased
one counterfeit card and one stolen to verify that they were
usable. Two days later, Gonzalez provided twenty additional stolen
1
It is a crime to produce, use, traffic in, or possess
counterfeit access devices or device-making equipment with intent
to defraud. 18 U.S.C.A. §§ 1029(a)(1), (a)(3) (Supp.1996).
Conspiracy to commit these acts is also a crime. Id. §
1029(b)(2). "Access devices" include credit cards. Id. §
1029(e).
credit card numbers which he claimed could be made into working
cards and gave these numbers to Special Agent Villanueva to verify.
Secret Service agents confirmed that the available credit on nine
of these cards was approximately $250,000.2
When Special Agent Villanueva next spoke to Gonzalez, he told
Gonzalez the amount of available credit on the nine cards and
ordered those cards manufactured immediately. The parties
negotiated a price of $40,000 for the cards, based upon a
percentage of the cards' available credit. Gonzalez told Special
Agent Villanueva that "Mieto"—later identified as appellant
Dominguez—would produce the cards. Gonzalez then telephoned
Dominguez and Jose Rodriguez, an unindicted co-conspirator, who
actually made the counterfeit cards. Gonzalez instructed Dominguez
to make the nine cards and told him that the cards had
approximately $200,000 in available credit.3 Authorities arrested
Dominguez the next day, when he took delivery of his share of the
proceeds from the sale.
II.
Following his guilty plea, the district court sentenced
Dominguez pursuant to U.S.S.G. § 2F1.1, under which a defendant's
base offense level is increased relative to the financial loss
associated with the crime. The court increased Dominguez's offense
2
Special Agent Villanueva testified that he and other agents
only had time to check on the credit available in nine of the
twenty accounts between meetings.
3
Dominguez protests that Gonzalez never informed him of the
cards' available credit. The district court, however,
specifically credited Special Agent Villanueva's testimony to the
contrary. Upon review of the record, we find no error.
eight levels to reflect a fraud in excess of $200,000. Dominguez
timely objected to this ruling and argues here that the district
court misapplied section 2F1.1. We review the district court's
interpretation of the Sentencing Guidelines de novo, United States
v. Toussaint, 84 F.3d 1406, 1407 (11th Cir.1996), and its loss
calculations for clear error. United States v. Calhoon, 97 F.3d
518, 530 (11th Cir.1996).
Generally, a defendant sentenced under section 2F1.1 is
subject to an offense level increase based on the greater of: (1)
the actual loss associated with a crime; or (2) the intended loss.
U.S.S.G. § 2F1.1, comment. (n. 7); Calhoon, 97 F.3d at 531. In
cases of credit card fraud, a court may not estimate the actual
loss at less than $100 per card. U.S.S.G. § 2B1.1, comment. (n.
3).4 Dominguez argues that he should be held liable only for the
$100-per-card minimum, reasoning that there is insufficient
evidence of intended loss and no actual loss, as the credit cards
were sold to the government. We disagree.
The district court's estimate of the intended loss from the
conspiracy was not clear error. A court's valuation of loss "need
not be made "with precision.' " United States v. Wilson, 993 F.2d
214, 218 (11th Cir.1993) (quoting U.S.S.G. § 2F1.1, comment. (n.
8)); U.S.S.G. § 2B1.1, comment. (n. 3). Rather, although "the
district court must not speculate concerning the existence of a
fact which would permit a more severe sentence under the
guidelines," Wilson, 993 F.2d at 218, its reasonable estimate of
4
Section 2F1.1 incorporates the valuation of loss provisions
discussed in section 2B1.1. U.S.S.G. § 2F1.1, comment. (n. 7).
the intended loss will be upheld on appeal. See U.S.S.G. § 2F1.1,
comment. (n. 8). Here, because Dominguez knew that he was
producing cards with approximately $200,000 in available credit and
because the price charged by the conspirators reflected a
percentage of that credit, the district court estimated that
Dominguez intended a loss in excess of $200,000. This was proper.
Where the district court has evidence that the defendant knew the
amount of available credit on counterfeit cards he conspired to
produce and distribute, the available credit is a reasonable
estimate of the intended loss.5
This holding comports with rulings from our sister circuits.
See, e.g., United States v. Egemonye, 62 F.3d 425, 428-29 (1st
Cir.1995) (where defendant instructed others to use cards to
withdraw cash at or near credit limits and arranged for deposit of
stolen checks to replenish limits, use of aggregate credit limit
was reasonable estimate of intended loss); United States v.
Koenig, 952 F.2d 267, 271-72 (9th Cir.1991) (where defendant once
stated that each stolen cash card could yield $500, use of $500 per
card estimate reflected defendant's intended gain and was
5
We express no opinion as to the proper result in a case
where the defendant is unaware of the credit limits of, or
available credit on, counterfeit cards and the district court
bases its sentence on those amounts. Compare United States v.
Sowels, 998 F.2d 249, 251 (5th Cir.1993) (where defendant stole
credit cards, he put fraud victims at risk of losing entire
amount of credit available, so use of credit limits of cards was
reasonable estimate of intended loss), cert. denied, 510 U.S.
1121, 114 S.Ct. 1076, 127 L.Ed.2d 393 (1994) with United States
v. Allison, 86 F.3d 940, 943-44 (9th Cir.1996) (declining to
follow Sowels in fraud case; insisting on "realistic, economic
approach to determining what losses the defendant truly ...
intended to cause"). It suffices for this case to hold that a
sentence based on the available credit known to the defendant is
a reasonable estimate of the intended loss.
reasonable estimate of intended loss). Although Dominguez urges us
to follow United States v. Yellowe, 24 F.3d 1110 (9th Cir.1994), it
is not contrary to our holding. In that case, the court approved
as reasonable the district court's valuation of loss based on the
$100-per-card minimum. It did not, however, establish that $100 is
the "presumed loss," as Dominguez asserts, 6 nor did it cast doubt
on the rule we apply here. Unlike the instant case, the government
adduced no evidence in Yellowe that any loss might result from the
stolen credit card numbers—the court noted that the district court
received testimony about the scheme, but the government "did not
know how much available credit any of the customers had." Id. at
1112. Thus, we conclude that Yellowe is distinguishable and that
our holding is consistent with other courts' decisions on this
issue.
III.
Accordingly, Dominguez's sentence is AFFIRMED.
6
Indeed, Yellowe stands for the opposite presumption. The
court noted that $100 is "the presumed minimum loss" per card.
Id. at 1112 (emphasis added).