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reading Application Note 3(F) to set a $500 floor "even in the absence of an actual loss"
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No. 08-5838-cr.
December 17, 2009.
Appeal from the United States District Court for the Eastern District of New York (Gleeson, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
John F. Kaley, Doar Rieck Kaley Mack, New York, N.Y., for Defendant-Appellant.
Cristina M. Posa, Assistant United States Attorney (Jo Ann M. Navickas, Assistant United States Attorney, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee.
Present: JOSEPH M. McLAUGHLIN, ROBERT A. KATZMANN, GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Defendant-appellant Troy Dodson appeals from a judgment of conviction of the United States District Court for the Eastern District of New York (Gleeson, J.) sentencing Dodson principally to 71 months' imprisonment, following his entry of a plea of guilty, for possessing stolen credit card numbers in violation of 18 U.S.C. § 1029(a)(3). We assume the parties' familiarity with the underlying facts, procedural history of this case, and the specification of issues on appeal.
Dodson, through counsel, challenges the district court's decision at sentencing to impose a 14-level "loss" enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(H), arguing that the evidence failed to demonstrate that he possessed certain stolen credit card numbers with the requisite "intent to defraud." We review the sentence imposed by the district court for both substantive and procedural reasonableness. United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir. 2006). "Reasonableness review is akin to review for abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds of allowable discretion[,] . . . committed an error of law in the course of exercising discretion, or made a clearly erroneous finding of fact." United States v. Williams, 475 F.3d 468, 474 (2d Cir. 2007) (internal quotation marks omitted). In considering the propriety of a particular loss enhancement, we review the district court's factual findings for clear error, and its legal conclusions de novo. United States v. Carboni, 204 F.3d 39, 46 (2d Cir. 2000).
U.S.S.G. § 2B1.1 provides for offense-level enhancements for certain fraud-related crimes based on the amount of intended loss involved in the offense. "Intended loss" refers to "the pecuniary harm that was intended to result from the offense," and "includes intended pecuniary harm that would have been impossible or unlikely to occur." Id. cmt. 3(A)(ii). Such loss "shall not be less than $500 per access device," even in the absence of an actual loss. Id. cmts. 3(A)(ii), 3(F)(i). Although the "district court's factual findings relating to loss must be established by a preponderance of the evidence," United States v. Brennan, 395 F.3d 59, 74 (2d Cir. 2005), the district court "enjoys considerable discretion in calculating the loss applicable to a particular fraud," United States v. Canova, 412 F.3d 331, 355 (2d Cir. 2005).
Here, we are satisfied that the district court's estimate of the intended loss was reasonable and supported by a preponderance of the evidence. Specifically, the record indicates that Dodson knowingly possessed a list of stolen credit card numbers, sold a portion of those numbers to a cooperating witness for profit with knowledge that the numbers would be used without authorization, blacked out the page numbers on the portion of the list given to the cooperating witness so as to obscure the total number of pages, and failed to articulate or proffer any legitimate reason for possessing the numbers. When viewed together, this evidence provided a sufficient, non-speculative basis for the district court to conclude that Dodson possessed all of the credit card numbers with the requisite intend to defraud. Moreover, we see no error in the district court's consideration of Dodson's long history of committing identity fraud by soliciting insiders, because such evidence is "probative of [Dodson's] intent in possessing the `access devices' for which [he was] charged." United States v. Caputo, 808 F.2d 963, 968 (2d Cir. 1987).
Dodson argues that the fact that he only provided the cooperating witness with a portion of the list of stolen credit card numbers "strongly demonstrates" that he did not intend to defraud with respect to the remaining numbers. We have repeatedly emphasized, however, that "intent to defraud" in an unauthorized access device case need not be proven by direct evidence, and that circumstantial evidence can instead suffice. United States v. Goldstein, 442 F.3d 777, 783-84 (2d Cir. 2006); see also United States v. Guadagna, 183 F.3d 122, 129 (2d Cir. 1999) (explaining that "direct proof of defendant's fraudulent intent is not necessary"). The circumstantial evidence in the record here provided more than a sufficient basis for the district court to conclude by a preponderance of the evidence that Dodson possessed the requisite intent to defraud, notwithstanding his failure to sell all of the numbers at issue. Accordingly, the district court did not clearly err in imposing a 14-level loss enhancement at Dodson's sentencing.
We have considered all of Dodson's remaining arguments and find them to be without merit. Thus, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.