US v. Stepanian

Filing 920090626

Opinion

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var WPFootnote1 = 'Of the Eighth Circuit, sitting by designation.\
'

var WPFootnote2 = '  The investigation was also aided when one of the altered\
terminals malfunctioned and was sent out of the store for\
servicing. When it was opened for repairs on February 13, 2007, it\
was discovered that card-skimming equipment had been placed inside\
the terminal.\
'

var WPFootnote3 = ' Section 2B1.1(b)(2) also instructs sentencing courts to\
apply a two-level increase for offenses involving 10 or more but\
less than 50 victims, and a four-level increase for those involving\
50 or more but less than 250 victims. U.S.S.G. § 2B1.1(b)(2)(A)\
and (B).\
'

var WPFootnote4 = ' Subsection (b)(1) prescribes incremental sentence level\
increases depending upon the amount of loss attributed to the\
crime. U.S.S.G. § 2B1.1(b)(1). \
'

var WPFootnote5 = ' This definition excludes "[i]nterest of any kind, finance\
charges, late fees, penalties, amounts based on an agreed-upon\
return or rate of return, or other similar costs" and "[c]osts to\
the government of, and costs incurred by victims primarily to aid\
the government in, prosecution and criminal investigation of an\
offense." U.S.S.G. § 2B1.1 cmt. n.3(D). \
'

var WPFootnote6 = ' This case does not require us to address the situation where\
unauthorized charges made on credit cards are reversed before\
targets actually pay for the charges. Although this fraud included\
the theft and use of credit card numbers and debit card numbers,\
the government took the position in the district court and on\
appeal that the vast majority of illicit transactions in this case\
were debit card transactions, and the defendant did not object to\
that factual characterization. In the absence of such a challenge,\
the district court was entitled to rely on the government\'s\
assertion that the debit card theft brought the number of victims\
above 250 even if the credit card victims are excluded from that\
tally. See, e.g., United States v. Prochner, 417 F.3d 54, 65-66\
(1st Cir. 2005) (a sentencing court is entitled to rely on facts\
set forth in PSR when defendant has not meaningfully objected to\
them). We therefore limit our holding to the situation where money\
was removed from the accounts of targets through debit card\
withdrawals.\
'

var WPFootnote7 = '  See also, United States v. Kennedy, 554 F.3d 415, 419 (3d\
Cir. 2009) ("account holders did not \'sustain[] any part of the\
actual loss\' because they were reimbursed . . . . "); United States\
v. Orr, No. 08-7070, 2009 WL 1459570 at *5 (10th Cir. May 27,\
2009); United States v. Pham, 545 F.3d 712, 720-21 (9th Cir. 2008);\
United States v. Conner, 537 F.3d 480, 489 (5th Cir. 2008). \
'

var WPFootnote8 = '  To be clear, our recital of these anecdotes is not meant to\
suggest that the government must prove the kind of harm described\
in the letters to establish the applicability of the multiple\
victim enhancement. We simply offer these accounts in support of\
our position that such withdrawals, whatever the particulars of the\
impact in an individual case, do represent real economic harm. \
'

var WPFootnote9 = ' The credit against loss application note reads:\
\
              Credits Against Loss.--Loss shall be reduced by the\
following: (i) The money returned, and the fair market\
value of the property returned and the services rendered,\
by the defendant or other persons acting jointly with the\
defendant, to the victim before the offense was detected\
. . . . (ii) In a case involving collateral pledged or\
otherwise provided by the defendant, the amount the\
victim has recovered at the time of sentencing from\
disposition of the collateral, or if the collateral has\
not been disposed of by that time the fair market value\
of the collateral at the time of sentencing.\
\
U.S.S.G. § 2B1.1, cmt. n.3(E).\
'

var WPFootnote10 = '  It generally took longer for the Lee victims to recoup\
their losses than is the case here, and some were never totally\
reimbursed. Lee, 427 F.3d at 885. \
'

var WPFootnote11 = '  The Eleventh Circuit, like our own, views its unpublished\
opinions as persuasive authority but not binding precedent. See\
11th Cir. R. 36-2; 1st Cir. R. 32.1.0(a); see also Fed. R. App. P.\
32.1. We cite Cornelius with the recognition that it is persuasive\
authority but not binding within the Eleventh Circuit. \
'

var WPFootnote12 = '  Under the rule of lenity, we resolve "grievous ambiguity\
in a penal statute" in a defendant\'s favor. United States v.\
Councilman, 418 F.3d 67, 83 (1st Cir. 2005). \
'

var WPFootnote13 = '  In light of the evident circuit split on this question, the\
Supreme Court will most likely have to resolve the disagreement, or\
the Sentencing Commission will have to provide further guidance. \
In fact, the Sentencing Commission is currently considering the\
question. See United States Sentencing Commission, Proposed\
Amendments to the Sentencing Guidelines, 74 Fed. Reg. 4806 (Jan.\
27, 2008) (addressing the circuit split and requesting "comment\
regarding whether § 2B1.1 adequately accounts for a case in which\
an individual suffers pecuniary harm, but the pecuniary harm is\
immediately reimbursed by a third party."). The fact that the\
Sentencing Commission is involved in ongoing deliberations about\
the language of the guideline does not, however, relieve us of our\
duty to interpret and apply the language of the guideline as it is\
presently written. We note that the Department of Justice\'s Office\
of Policy and Legislation, in a letter responding to the\
Commission\'s request for comment, endorsed the position of the\
Second and Ninth Circuits, thereby taking a position that would be\
at odds with its argument in this case. However, at oral argument,\
the United States represented that "to the extent there is any\
tension or conflict between [the government\'s] brief and the letter\
from the Department to the Sentencing Commission . . . [the] brief\
controls and [the] brief represents the official position of the\
Justice Department on this issue in the case of people like the\
ones here who have their money stolen from their accounts by debit\
and who from our perspective do suffer [a] pecuniary harm, albeit\
it a temporary one."\
'

var WPFootnote14 = '  Other circuits that have found that temporary losses do not\
constitute actual pecuniary harm and do not bring their bearers\
within section 2B1.1\'s definition of "victim" have nonetheless\
concluded that secondary financial harms, such as the cost of time\
spent seeking reimbursement, can render reimbursed individuals\
"victims" within the meaning of the guideline. See United States\
v. Abiodun, 536 F.3d 162, 169 (2nd. Cir. 2008) (holding that the\
cost of time spent seeking reimbursement can render reimbursed\
individuals victims within the meaning of section 2B1.1, so long as\
time cost losses are included in the subsection (b)(1) loss\
calculation); Pham, 545 F.3d at 721 (same). In addition to its\
primary argument, the government asked that, should we decide that\
only secondary costs such as time costs would constitute actual\
harm to the individual account holders, we remand the case for\
factual development of the secondary costs incurred by account\
holders as a result of the crime. In light of our acceptance of\
the government\'s primary argument, however, we need not reach the\
question whether secondary costs such as time costs can account for\
actual loss under subsection (b)(1) and whether they must be\
included in the calculation of subsection (b)(1) actual loss if\
their bearers are to be counted as victims.\
'

var WPFootnote15 = '  18 U.S.C. § 1028A prescribes a mandatory consecutive two-year penalty for violators of that statute. The district court\
correctly understood that a two year consecutive sentence is\
required for a conviction under § 1028A. \
'

var WPFootnote16 = '  To the extent Stepanian wishes to argue that the government\
must separately allege and charge the predicate crime in order to\
charge a § 1028A offense (and it is unclear whether this is what he\
intends to argue), the statutory language lends no support to that\
proposition. Also, the government draws a persuasive analogy to\
convictions under 18 U.S.C. § 924 for use of a firearm in relation\
to other crimes. In that context, we have held that a defendant\
"may be convicted for possession of a weapon in furtherance of a\
drug trafficking crime . . . even if he is acquitted of the\
underlying . . . crime," because, despite the apparent\
inconsistency in the jury\'s verdict, there was "sufficient evidence\
to sustain a rational verdict of guilty on both counts." United\
States v. Figueroa-Encarnacion, 343 F.3d 23, 30 & n.4 (1st Cir.\
2003). In this case, where the defendant has pled guilty to\
committing the "in relation to" offense as an element of the crime\
of conviction, and there is not even a claim of inconsistency, the\
case for the conviction\'s legitimacy is even stronger.\
'

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