US v. Wen Chen

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cr-00085-TDS-5. Copies to all parties and the district court/agency. [999011515]. [12-4132]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Wen Bin Chen appeals from his fifty-six-month sentence
imposed
access

pursuant
device

conspiracy

to

his

fraud

involved

and

guilty

plea

aggravated

obtaining

to

conspiracy

identity

credit

card

to

commit

theft.

account

Chen’s

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

error and questions of law de novo.
F.3d 522, 527 (4th Cir. 2006).

findings

of

fact

for

clear

United States v. Allen, 446
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.”
Sentencing

Guidelines

Manual

§

2B1.1

cmt.

n.3(C)

U.S.

(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

others in the jointly undertaken criminal activity.”

See United

States v. McCrimmon, 362 F.3d 725, 731 (11th Cir. 2004).
2

of

Chen

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does

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not

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dispute

participation

in

the

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factual

the

evidence

conspiracy,

but

conclusions to be drawn from it.
that

the

credit

card

numbers

of

the

rather

scope

of

his

disputes

the

Specifically, Chen contends

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.
3

As such, Chen clearly

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knew that he was involved in an enterprise centered on large
numbers

of

counterfeit

numbers

of

gift

conclusion

that

credit

cards.
the

cards

used

Accordingly,

419

recovered

to

the

credit

purchase

district
card

large

court’s

numbers

were

reasonably foreseeable to Chen was not clearly erroneous.
As such, we affirm Chen’s sentence.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We dispense with
contentions
the

court

are
and

argument would not aid the decisional process.
AFFIRMED

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