US v. Victor Escamilla, No. 12-4233 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4233 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VICTOR LOPEZ ESCAMILLA, a/k/a Mango Chupado, a/k/a Ventura, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:11-cr-00303-WDQ-1) Submitted: January 18, 2013 Decided: February 12, 2013 Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. A. D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Tamera L. Fine, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Victor Lopez Escamilla was sentenced to ninety-seven months imprisonment after being found guilty by a jury of one count of fraud in connection with identification documents, in violation of 18 U.S.C. § 1028(a)(2), (c)(1) (2006), one count of social security § 408(a)(7)(C) number (2006), fraud, and one in violation count of fraud of 42 and U.S.C. misuse of immigration documents and aiding and abetting, in violation of 18 U.S.C. §§ 1546, 2 (2006). He now appeals, challenging his sentence, contending that the district court erred in computing his total offense level under the sentencing guidelines. Finding no error, we affirm. In determining whether the district court has properly applied the Guidelines, this Court reviews its interpretation of the Guidelines de novo and its factual findings for clear error. United States Accordingly, v. the Quinn, 359 meaning of F.3d 666, loss 679 under (4th the Cir. 2004). Guidelines is reviewed de novo, while the amount of loss is reviewed for clear error. See United States v. Wells, 163 F.3d 889, 900 (4th Cir. 1998). Escamilla first challenges the district application of a ten-level adjustment for loss. court s U.S. Sentencing Guidelines Manual ( USSG ) § 2B1.1(b)(1) (2011) provides for a ten-level increase where the loss from the offense was between 2 $120,000 and $200,000. Loss can be measured by actual intended loss, or in limited circumstances, by gain. 2B1.1 cmt. n.3(A), (B). Application Note 3(B) or USSG § of § 2B1.1 provides: The court shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined. 3(C) of § 2B1.1 reasonable provides estimate information. of that the the loss, Application Note court need based on only the make a available It notes: The sentencing judge is in a unique position to assess the evidence and estimate the loss based upon that evidence. is entitled For this reason, the court s loss determination to appropriate deference. USSG § 2B1.1 cmt. n.3(C). Escamilla contends that because the Government offered no proof of actual economic loss, there is no loss, and therefore that gain cannot properly be used as an alternative measure. We reject this contention. Immigration document fraud causes actual economic loss, to the persons whose information is used on the documents, to employers who mistakenly rely on the counterfeit documents, and to the United States in protecting its borders and citizens. While these losses may be difficult to not measure, that they do exist simply does not follow. Accordingly, the district court appropriately used gains as an alternative measure to loss. 3 We also find no clear error with the district court s loss calculation. amount of The district court reasonably estimated the loss, based on the available information. Accordingly, the district court properly applied the ten-level loss adjustment. Escamilla next challenges the district court s application of a six-level adjustment for an offense involving 250 or more victims. offense . levels. means . . USSG § 2B1.1(b)(2) provides: involved 250 or more victims, If the increase by 6 Application Note 1 of § 2B1.1 provides that a victim any person who has suffered actual bodily injury as a result of the offense. loss or sustained However, Application Note 4(E) of § 2B1.1 provides that, in cases involving means of identification, means of victim can identification also was mean used any individual unlawfully or whose without authority. Escamilla contends first that there were no victims to his offenses, and alternatively, that the district court relied on an improper methodology in determining the number of victims. First, Escamilla identification contends documents he that, even though manufactured and the sold fraudulent used real information from various individuals without their permission, none of those individuals are 4 victims because they did not suffer actual economic loss. In light of Application Note 4(E), this contention fails. Escamilla also challenges the district methodology for determining the number of victims. clear error victims. in the district court s calculation court s We find no of over 250 The district court reasonably relied on the available evidence to make this factual determination. therefore properly applied the The district court six-level, victim-number adjustment. 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
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