US v. Jayle Mendez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cr-00259-CCE-1 Copies to all parties and the district court/agency. [999471316].. [14-4059, 14-4093, 14-4094]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4059

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAYLE MENDEZ,
Defendant – Appellant.

No. 14-4093

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIESKY PAYROL SUAREZ,
Defendant - Appellant.

No. 14-4094

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RENEE RODRIGUEZ,

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Defendant - Appellant.

Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District
Judge.
(1:13-cr-00259-CCE-1;
1:13-cr-00259-CCE-2;
1:13-cr-00259-CCE-4)

Submitted:

October 31, 2014

Decided:

November 7, 2014

Before KING, GREGORY, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kathleen A. Gleason, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, LLP, Greensboro, North Carolina; Don D. Carter, DON D.
CARTER, ATTORNEY AT LAW, PLLC, Greensboro, North Carolina;
Thomas H. Johnson, Jr., GRAY & JOHNSON, LLP, Greensboro, North
Carolina, for Appellants.
Ripley Rand, 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Unpublished opinions are not binding precedent in this circuit.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:
Jayle

Mendez,

Daniesky

Suarez,

and

Renee

Rodriguez

pled guilty to conspiracy to possess counterfeit access devices,
in violation of 18 U.S.C. § 1029(b)(2) (2012).

Mendez also pled

guilty to aggravated identity theft, in violation of 18 U.S.C.
§ 1028A (2012).
four

months’

imprisonment,

The district court sentenced Mendez to fiftyimprisonment,
and

Suarez

to

Rodriguez

to

Appellants

raise

forty-six

months’

thirty-seven

months’

imprisonment.
On
their

appeal,

Guidelines

calculations

and

reasonableness of the sentence.
court

erred

when

their

base

offense

pursuant

to

it:

contest

challenges

the

to

substantive

They assert that the district

(1)

applied

levels

for

U.S.

multiple

Sentencing

a

two-level

use

of

enhancement

sophisticated

Guidelines

Manual

to

means,
(“USSG”)

§ 2B1.1(b)(10) (2013); (2) miscalculated the total loss amount,
resulting

in

an

eight-level

enhancement,

pursuant

to

USSG

§ 2B1.1(b)(1)(E); (3) miscalculated the total number of victims,
resulting

in

a

§ 2B1.1(b)(2)(B);
Suarez’s

and

four-level
(4)

enhancement,

applied

Rodriguez’s

base

a

pursuant

two-level

offense

levels

to

enhancement
for

USSG
to

leadership,

pursuant to USSG § 3B1.1(c); and (5) declined to vary downward.
For the reasons that follow, we affirm.

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We review a sentence for reasonableness, applying a
“deferential

abuse-of-discretion

standard.”

States, 552 U.S. 38, 52 (2007).
sentencing

court

including

improper

insufficient
factors,

committed

and

“significant

inadequate

of

v.

United

We first consider whether the

calculation

consideration

Gall

of

the

the

18

explanation

procedural
Guidelines

U.S.C.
of

error,”

the

range,

§ 3553(a)
sentence

(2012)

imposed.

Id. at 51; see United States v. Lynn, 592 F.3d 572, 575 (4th
Cir. 2010).

In assessing Guidelines calculations, we review

factual findings for clear error, legal conclusions de novo, and
unpreserved

arguments

for

plain

error.

United

Strieper, 666 F.3d 288, 292 (4th Cir. 2012).

States

v.

We will find clear

error only when, “on the entire evidence[,] [we are] left with
the

definite

committed.”

and

firm

conviction

that

a

mistake

has

been

United States v. Cox, 744 F.3d 305, 308 (4th Cir.

2014) (internal quotation marks omitted).
If we find the sentence procedurally reasonable, we
also consider its substantive reasonableness under the totality
of the circumstances.

Lynn, 592 F.3d at 578.

The sentence

imposed must be “sufficient, but not greater than necessary, to
comply with the purposes” of sentencing.
We

presume

on

appeal

that

a

18 U.S.C. § 3553(a).

within-Guidelines

sentence

is

substantively reasonable, and the defendant bears the burden to
“rebut the presumption by demonstrating that the sentence is
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unreasonable
United

States

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when
v.

measured

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against

Montes-Pineda,

the

445

§ 3553(a)

F.3d

375,

factors.”

379

(4th

Cir.

that

the

2006) (internal quotation marks omitted).
We

first

address

Appellants’

argument

district court erred in applying the two-level enhancement for
sophisticated
applies

when

means.
a

The

sophisticated

defendant

employs

means

enhancement

“especially

complex

or

especially intricate offense conduct pertaining to the execution
or concealment of an offense.”
the

scheme

must

involve

USSG § 2B1.1 cmt. n.9(B).

“more

than

the

While

concealment

or

complexities inherent in fraud,” United States v. Adepoju, 758
F.3d 250, 257 (4th Cir. 2014), courts can find that a defendant
used sophisticated means even where he did “not utilize the most
complex means possible to conceal his fraudulent activit[y].”
United States v. Jinwright, 683 F.3d 471, 486 (4th Cir. 2012).
Moreover,

a

defendant’s

individual

actions

need

not

be

sophisticated so long as the scheme as a whole is sophisticated.
Adepoju, 756 F.3d at 257; Jinwright, 683 F.3d at 486.
Appellants’ scheme was sufficiently complex to support
this enhancement.

They not only obtained 198 stolen credit card

account numbers, but also disguised their fraudulent purchases
by encoding stored-value cards with the stolen account numbers,
making

their

purchases

appear

5

as

legitimate

transactions.

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Appellants’

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assertions

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regarding

relocation

are

unpersuasive

because the totality of the offense was otherwise sophisticated.
Moreover,
enhancement

did

the

not

district

result

in

court’s

application

impermissible

double

of

this

counting.

“Double counting occurs when a provision of the Guidelines is
applied to increase punishment on the basis of a consideration
that has been accounted for by application of another Guideline
provision or by application of a statute.”
Reevey,

364

F.3d

151,

158

(4th

Cir.

United States v.

2004).

“[T]here

is

a

presumption that double counting is proper where not expressly
prohibited by the guidelines.”
F.3d

654,

664

(4th

Cir.

United States v. Hampton, 628
2010).

Here,

neither

USSG

§ 2B1.1(b)(10) nor (b)(11) contains language prohibiting double
counting as to the provisions applied to Appellants.
as

discussed

above,

the

sophisticated

means

Further,

enhancement

is

supported by factors beyond the mere possession of device-making
equipment and production of counterfeit access devices.
We next address Suarez’s and Rodriguez’s argument that
the district court incorrectly calculated the total loss figure. *
*

Appellants contend that Mendez did not object to the loss
calculation at sentencing and, therefore, waived appellate
review.
A review of the record, however, reveals that Mendez
objected to the loss enhancement in a written submission and at
sentencing. From Appellants’ brief, it appears that Mendez does
not assert this issue on appeal; however, even if he did, Mendez
would not be entitled to relief as explained above.

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The district court “need only make a reasonable estimate of the
loss.”

United States v. Cloud, 680 F.3d 396, 409 (4th Cir.

2012) (internal quotation marks omitted).

Generally, “loss is

the greater of actual loss or intended loss.”

USSG § 2B1.1 cmt.

n.3(A); see USSG § 2B1.1 cmt. n.3(A)(i) (defining “actual loss”
as “reasonably foreseeable pecuniary harm that resulted from the
offense”).

Special rules govern determinations of loss in cases

involving stolen or counterfeit credit cards and access devices.
USSG § 2B1.1 cmt. n.3(F)(i).

In such cases, “loss includes any

unauthorized

with

charges

made

the

counterfeit . . .

or

unauthorized access device and shall be not less than $500 per
access device.”
We

Id.

find

no

clear

calculation of total loss.

error

in

the

district

court’s

In adopting the PSRs, the court used

the $500-per-device multiplier in accordance with USSG § 2B1.1
cmt. n.3(F)(i), resulting in a loss that reflected both the loss
from used cards and the reasonably foreseeable loss from unused
cards.

This was a reasonable estimate based on a preponderance

of the evidence.
We next address Suarez’s and Rodriguez’s argument that
the district court incorrectly calculated the total number of
victims, resulting in a four-level enhancement.

A review of the

record reveals that this issue was not preserved below; thus, we
review

for

plain

error.

Strieper,
7

666

F.3d

at

292.

To

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establish

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plain

error,

an

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appellant

must

show

“(1)

that

the

district court erred, (2) that the error is clear or obvious,
and (3) that the error affected his substantial rights, meaning
that

‘it

affected

proceedings.’”

the

outcome

of

the

district

court

United States v. Webb, 738 F.3d 638, 640-41 (4th

Cir. 2013) (quoting United States v. Olano, 507 U.S. 725, 732-34
(1993)).

Suarez and Rodriguez fail to satisfy their burden.

Even assuming they adequately establish that the district court
erred, they make no assertions that such error was clear or
obvious or affected their substantial rights.
F.3d

at

580

&

n.5

(requiring

affected

his

substantial

appellant

rights).

to

See Lynn, 592
show

Therefore,

we

that

error

discern

no

reversible error in the district court’s victim calculation and
resulting enhancement.
We next address Suarez’s and Rodriguez’s challenge to
the

leadership

enhancement.

To

qualify

for

the

two-level

enhancement, a defendant must have been “an organizer, leader,
manager, or supervisor in any criminal activity” that involved
fewer than five participants and was not otherwise extensive.
USSG § 3B1.1(c).

“Leadership over only one other participant is

sufficient as long as there is some control exercised.”
States

v.

Rashwan,

328

F.3d

160,

166

(4th

Cir.

United

2003).

A

preponderance of the evidence supported the finding that Suarez
and Rodriguez exercised some degree of control over both the
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and

the

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activities

of

the

others

involved.

Accordingly, we conclude that the district court did not err by
applying the two-level enhancement.
Finally,

we

address

Appellants’

argument

that

the

district court erred by not imposing downward variant sentences.
Having determined that there is no significant procedural error,
we

consider

the

substantive

reasonableness

of

the

sentence,

“taking into account the totality of the circumstances.”
552

U.S.

at

51.

reasonableness

to

Guidelines ranges.
(4th Cir. 2012).
presumption

We

did

presumption

within

of

substantive

properly

calculated

See United States v. Susi, 674 F.3d 278, 289
Nothing in the record overcomes the appellate

of

not

a

sentences

reasonableness

Guidelines sentences.
court

apply

Gall,

commit

afforded

Appellants’

within-

Therefore, we conclude that the district
any

substantive

error

in

sentencing

Appellants.
Accordingly, we affirm the district court’s judgments.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court, and argument would not aid the decisional process.

AFFIRMED

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