By Taylor Ey

Last Friday, November 7th, the Fourth Circuit issued its opinion in United States v. Mendez affirming the sentencing decision of the District Court for the Middle District of North Carolina.

Appellants Mendez, Suarez, and Rodriguez pled guilty to conspiracy to possess counterfeit access devices. Appellant Mendez also pled guilty to aggravated identity theft.  Mendez was sentenced to fifty-four months’ imprisonment, Suarez to forty-six months’ imprisonment, and Rodriguez to thirty-seven months’ imprisonment.  Appellants appealed the district court’s decision, challenging the Sentencing Guidelines calculations and the substantive reasonableness of the sentences.

The District Court Did Not Abuse its Discretion When it Applied a Sentencing Enhancement

Appellants argue that the district court erred when it applied the two-level enhancement for sophisticated means.  When a defendant employs a complex or intricate offense, the sophisticated means enhancement may apply.   Because the appellants obtained nearly 200 stolen credit card account numbers and disguised fraudulent purchases through encoding stored-value cards with stolen account numbers, their scheme was sufficiently complex.

The District Court Did Not Commit Clear Error in Calculating Its Total Loss Figure

In stolen or counterfeit credit cards and access devices cases, special rules govern the calculations of loss.  The loss includes any unauthorized charges made with the counterfeit card or unauthorized access device, up to $500.  The district court did not err because it used the $500-per-device multiplier in accordance with Sentencing Guideline § 2B1.1 cmt. n.3(F)(i), which reflected the loss from the used cards and the reasonably foreseeable loss from unused cards.

Appellants Failed to Meet Their Burden in Establishing that the District Court Committed Plain Error in Calculating the Total Number of Victims

The Fourth Circuit held that Suarez and Rodriguez failed to satisfy their burden, demonstrated that the district court committed plain error.  To establish plain error, an appellant must show (1) that the district court erred, (2) that the error was clear and obvious, and (3) that the error affected appellant’s substantial rights, affecting the outcome of the proceedings.  Even if the court assumed that appellants established that the district court erred, they did not meet their burden of establishing that the error was clear and obvious or that their rights were affected.

The District Court Did Not Err in Applying the Leadership Enhancement

The Fourth Circuit held that preponderant evidence supported the district court’s finding that Suarez and Rodriguez exercised a “degree of control” over the operation and activities of others involved in the acts. Leadership enhancement applies where a defendant has been an “organizer, leader, manager, or supervisor in any criminal activity” that involved fewer than five participants.  Even if Suarez and Rodriguez only exercised control over one other participant, this is sufficient for a leadership enhancement.

The District Court Did Not Err When it Failed to Impose Downward Variant Sentences

Because the district court did not commit any significant procedural error, the Fourth Circuit then considered whether the sentence was substantively reasonable.  There is a presumption of substantive reasonableness if the sentences are within properly calculated Guidelines ranges.  The Fourth Circuit concluded that the district court did not commit any substantive error.

The District Court’s Ruling Was Affirmed