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United States v. Rueda

United States Court of Appeals, First Circuit

July 31, 2019

UNITED STATES, Appellee,
v.
MEYLISI RUEDA, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Nancy Torresen, U.S. District Judge]

          J. Hillary Billings, Assistant Federal Defender was on brief for appellant.

          Renee M. Bunker, Assistant United States Attorney, Appellate Chief, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

          Before Howard, Chief Judge, Thompson and Barron, Circuit Judges.

          BARRON, CIRCUIT JUDGE.

         Meylisi Rueda ("Rueda") pleaded guilty to one count of conspiracy to commit access-device fraud, in violation of 18 U.S.C. § 1029(a)(2), (a)(3), and (b)(2), in the District Court for the District of Maine. She now challenges the District Court's sentence resulting from that plea. She argues that the District Court erred in its calculation of the "loss" attributable to her offense, due to what, she argues, was an incorrect reading of § 2B1.1(b)(1) of the United States Sentencing Guidelines. We affirm.

         I.

         Beginning in June of 2016, state and federal law enforcement agencies initiated an investigation into multiple complaints of credit card fraud originating in Maine. Law enforcement agents received information in connection with that investigation that Yaisder Herrera Gargallo, Jose Castillo Febles, Juan Carlos Febles, and Rueda, had, over the span of several months, used fraudulent credit cards to purchase merchandise, gift cards, airline tickets, and to lease rental vehicles.

         On June 18, 2016, law enforcement agents stopped a Jeep in Brunswick, Maine that matched the description of a vehicle used during the fraudulent credit card transactions under investigation. Rueda was not in the vehicle when it was pulled over, but Gargallo, Jose Castillo Febles, and Juan Carlos Febles were. The agents questioned the three passengers, who admitted in response that they, along with Rueda, were participants in a fraudulent credit card scheme; that they had traveled from Florida to Maine to undertake that scheme; and that they had stolen credit cards in their possession at the time that they were pulled over.

         A search of the vehicle led agents to discover multiple packages of unopened merchandise (e.g., a Dewalt drill set and three iPads), multiple credit cards bearing stolen account information, credit card "skimming" equipment, and a laptop. A forensic search of the laptop revealed nine text files that contained what appeared to be credit card information. Agents identified what they determined were numbers for 2, 732 unique credit cards in these files. In addition to the text files, the forensic search of the laptop revealed various programs associated with the manufacture of fake credit cards.

         Investigators were able to identify the issuing financial institutions associated with 2, 580 of the 2, 732 apparent credit card numbers that were retrieved from the laptop's text files. Most of these financial institutions did not submit victim impact statements. Eight of them did. The victim impact statements that those eight financial institutions submitted averred that the losses associated with the card numbers from the laptop text files that were associated with their institutions totaled, collectively, $24, 673.60.

         On October 6, 2017, Rueda pleaded guilty to one count of conspiracy to commit access-device fraud, in violation of 18 U.S.C. § 1029(a)(2), (a)(3), and (b)(2). The District Court then requested a pre-sentence report ("PSR"), which the United States Office of Probation prepared and disclosed on November 24, 2017. The PSR recommended, pursuant to the Guidelines, a guidelines sentencing range ("GSR") of 37-46 months of imprisonment.

         The PSR based the GSR on the Guidelines' "loss" definition. Section 2B1.1 of the guidelines defines "loss" as "the greater of actual loss or intended loss." § 2B1.1, cmt. n.3(A). "Actual loss" is defined as "the reasonably foreseeable pecuniary harm that resulted from the offense." Id. at cmt. n.3(A)(i). "Intended loss," by contrast, is defined as "the pecuniary harm that the defendant purposely sought to inflict [which] includes intended pecuniary harm that would have been impossible or unlikely to occur." Id. at cmt. n.3(A)(ii).

         The Guidelines provide additional instructions for calculating "loss" in cases that involve "Stolen or Counterfeit Credit Cards and Access Devices." Id. at cmt. n.3(F)(i) [hereinafter Application Note 3(F)(i)]. These instructions provide that, "[i]n a case involving any counterfeit access device or unauthorized access device, loss includes any unauthorized charges made with the counterfeit access device or unauthorized access device and shall be not less than $500 per access device." Section 2B1.1 further states that "counterfeit access device" and ...


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