United States v. Ruiz Gainza, No. 19-10430 (9th Cir. 2020)
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The Ninth Circuit vacated defendants' sentences imposed after they pleaded guilty to multiple offenses, including conspiracy to possess unauthorized access devices, access device fraud, and aggravated identity theft. Defendants' convictions arose from their installation of cameras and skimmers at ATM machines to film fingers as PINS were entered and to record the information of inserted cards.
The panel held that the record does not support the conclusion that defendants obtained 852 and 754 account numbers respectively. The panel explained that, while there is evidence that defendant hoped to obtain account information for each ATM customer, there is insufficient evidence that they succeeded in doing so. Therefore, the district court clearly erred by applying a twelve-level increase to defendants' base level under USSG 2B1.1(b)(1) based on its conclusion that defendants obtained account information for each person who visited the ATMs while the cameras and skimmers were installed. In this case, while the government showed how many people used the ATMs while the skimmers were installed, it did not provide any evidence of the skimmer success rate, either for these transactions or even for hypothetical transactions.
Court Description: Criminal Law. The panel vacated the sentences imposed on two defendants who pleaded guilty to multiple offenses— including conspiracy to possess unauthorized access devices, access device fraud, and aggravated identity theft— arising from the installation of cameras and skimmers at ATMs near Sacramento, and remanded for resentencing. In calculating the amount of loss caused by the scheme under U.S.S.G. § 2B1.1(b)(1), the district court concluded that the defendants obtained account information for each person who visited the ATMs while the cameras and skimmers were installed. The panel held that the district court’s application of a twelve-level increase to the base offense level under * The Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation. UNITED STATES V. GAINZA 3 U.S.S.G. § 2B1.1(b)(1)(G) was clear error because the record does not support the conclusion—even based on a reasonable estimate—that the defendants obtained 852 and 754 account numbers respectively. The panel wrote that while the government showed how many people used the ATMs while the skimmers were installed, it did not provide any evidence of the skimmer success rate, without which the record cannot support a finding that the defendants obtained information “that can be used to initiate a transfer of funds” from each ATM customer, as required by 18 U.S.C. § 1029(e)(1).
This opinion or order relates to an opinion or order originally issued on October 20, 2020.
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