United States v. Thomas, No. 15-3717 (8th Cir. 2016)
Annotate this CaseDefendant was sentenced to 80 months in prison after pleading guilty to conspiracy to possess fifteen or more counterfeit access devices and conspiracy to commit mail fraud, possession of fifteen or more counterfeit devices, and false statements to a federal official. The court concluded that the $500 minimum in USSG 2B1.1 cmt. n.3(F)(i) may be applied to fraudulent cards which have been merely possessed rather than used. Therefore, the district court did not err when it concluded that a loss amount of $500 may be attributed to fraudulent cards that are unused. The court concluded that the district court did not err by increasing defendant's base offense level by eight under USSG 2B1.1 after finding that the total loss amount for which he was responsible exceeded $95,000. The court also concluded that the district court did not clearly err by applying an organizer or leader enhancement under USSG 3B1.1(a); the district court did not err in finding that defendant obstructed both his investigation and prosecution and thus increasing his base offense by two for obstruction of justice; and the district court did not clearly err in assessing three criminal history points for defendant's 1999 conviction. Accordingly, the court affirmed the sentence.
Court Description: Murphy, Author, with Riley, Chief Judge, and Smith, Circuit Judge] Criminal case - Sentencing. The district court did not err in applying a loss amount of $500 to unused credit cards seized in the offense, as Guidelines Sec. 2B1.1cmt.n.3(F)(i) does not require that the device has been used; neither the Supreme Court nor this court has addressed whether Section 2B1.1 contains a usability requirement, and the district court did not plainly error in applying the enhancement; no error in imposing an organizer or leader enhancement under Guidelines Sec. 3B1.1(a); no error in imposing an enhancement for obstruction of justice under Guidelines Sec. 3C1.1(1) where defendant gave a false name to the police in order to conceal his identity because of an outstanding warrant; no error in imposing criminal history points for a 1999 conviction as the scheme involved in this case commenced in 2014 and was not outside the 15-year period set out in Guidelines Sec. 4A1.2(e)(1). [ November 08, 2016
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