US v. Ivo Damyanov, No. 12-4221 (4th Cir. 2013)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4221 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. IVO SVETOZAROV DAMYANOV, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:11-cr-00120-CCB-1) Submitted: December 21, 2012 Decided: January 7, 2013 Before DUNCAN and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Jonathan A. Gladstone, LAW OFFICES OF JONATHAN GLADSTONE, Annapolis, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Kristi O Malley, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Ivo Svetozarov to conspiracy agreement Damyanov to pled commit guilty access without device a plea fraud, in violation of 18 U.S.C. §§ 371, 1029(a)(1), (b)(2) (2006) (count one), aiding and abetting access device fraud, in violation of 18 U.S.C. § 2 (2006) and 18 U.S.C. § 1029(a)(1), (e)(1)-(2) (count four), and aiding and abetting aggravated identity theft, in violation of (count five). district under 18 §§ 2, 1028A(a)(1), (c)(4) (2006) Damyanov appeals his sentence, challenging the court s U.S. U.S.C. application Sentencing of Guidelines the two-level enhancement § 2B1.1(b)(11)(B)(i) Manual (2011) for an offense involving the production or trafficking of an unauthorized Damyanov access contends device that, or because counterfeit he was also access device. sentenced for aggravated identity theft under 18 U.S.C. § 1028A, the district court s application of the two-level enhancement amounted to impermissible double counting. In assessing a challenge to the district court s application of the Guidelines, we review the district court s factual findings for clear error and its legal conclusions de novo. United (4th Cir. 2010). States v. Alvarado Perez, 609 F.3d 609, 612 When a Guidelines provision is applied based on consideration of factors that already have been accounted for by another provision of the Guidelines 2 or by statute, this United States v. Reevey, 364 F.3d amounts to double counting. 151, 158 (4th Cir. 2004). understands the forbids where it concept it The Sentencing Commission plainly of is not double counting, and United intended. expressly States v. instructs a Williams, 954 F.2d 204, 208 (4th Cir. 1992). Section 2B1.1(b)(11) of the Guidelines district court to increase a defendant s offense level by two levels if the offense involved: (A) the possession or use of any (i) device-making equipment, or (ii) authentication feature; (B) the production or trafficking of any (i) unauthorized access device or counterfeit access device, or (ii) authentication feature; or (C)(i) the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification, or (ii) the possession of [five] or more means of identification that unlawfully were produced from, or obtained by the use of, another means of identification. To avoid impermissible double counting of relevant conduct, however, section 2B1.6 of the Guidelines the Guideline section applicable to convictions for aggravated identity theft under § 1028A limits the application of USSG § 2B1.1(b)(11). Specifically, the commentary instructs that, if a sentence under the Guideline is imposed in conjunction with a sentence for the underlying fraud offense, the specific offense characteristics for the transfer, possession, or use of a means of n.2. identification are inapplicable. USSG § 2B1.6 cmt. Under 18 U.S.C. § 1028A(a)(1), a two-year prison sentence 3 is required for the knowing transfer[], possess[ion], or use[], without lawful authority of a means of identification of another person during and in relation to certain underlying offenses. Although the exclusion language in Application Note 2 tracks the language that triggers [§ 1028A] s consecutive term of imprisonment, . . . [USSG] § 2B1.6 does conduct described in USSG § 2B1.1(b)(11). not exclude all United States v. Jenkins-Watts, 574 F.3d 950, 962 (8th Cir. 2009). Here, the district court imposed the two-level enhancement under USSG § 2B1.1(b)(11)(B)(i) based on Damyanov s production of unauthorized access devices plastic cards encoded with the credit and debit card account information Damyanov and others skimmed from automated teller machines. The plain language of Application Note 2 is limited to offenses involving the transfer, possession, or use of a means of identification. USSG § 2B1.6 cmt. n.2. that have Moreover, the other Courts of Appeal addressed where enhancement the evidence the applicability showed of that a the two-level defendant also sentenced under § 1028A produced the unauthorized or counterfeit access device have held imposed. United States (11th Cir. 2011) 407 F. App x 938, that v. the Perez, (No. 10 10778); 942 (6th Cir. enhancement 432 F. App x United 2011) was 930, States (Nos. properly 934-36 v. Wiley, 09 5789, 09 5855); Jenkins-Watts, 574 F.3d at 962; United States v. Jones, 4 551 F.3d 19, 25-26 (1st Cir. 2008). the district court did not err We therefore conclude that in applying the two-level enhancement under USSG § 2B1.1(b)(11)(i) in this case. We also reject on review for plain error Damyanov s remaining challenges premised on Application Note 4(A) to USSG § 1B1.1 and the rule of lenity to the application of the twolevel enhancement. as a basis for Damyanov s reliance on Application Note 4(A) error in this case is wholly unexplained. Further, because Application Note 2 is clear on its face, the rule of lenity is inapplicable. 36 F.3d 406, 408 (4th Cir. Cf. United States v. Cutler, 1994) (stating that the rule of lenity is applicable to the Sentencing Guidelines where there is present a grievous ambiguity or uncertainty in the language and structure of the Guideline (internal quotation marks omitted)). Accordingly, we affirm the district court s judgment. 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 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.