U.S. v. Cabrera

• Citation: 172 F.3d 1287
• Decision Date: 19 April 1999
• Docket Number: 98-4434,Nos. 98-4432,s. 98-4432
• Parties: 12 Fla. L. Weekly Fed. C 743 UNITED STATES of America, Plaintiff-Appellee, v. Luis CABRERA, a.k.a. Luis Rafael Cabrera, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Luis Cabrera, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1287

172 F.3d 1287

12 Fla. L. Weekly Fed. C 743

UNITED STATES of America, Plaintiff-Appellee, v. Luis CABRERA, a.k.a. Luis Rafael Cabrera, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Luis Cabrera, Defendant-Appellant.

Nos. 98-4432, 98-4434.

United States Court of Appeals Eleventh Circuit.

April 19, 1999.

Kathleen M. Williams, Federal Public Defender, Jacqueline E. Shapiro, Miami, FL, for Defendant-Appellant.

Adalberto Jordan, Assistant U.S. Attorney, Alison W. Lehr, Phillip DiRosa, Miami, FL, for Plaintiff-Appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before HATCHETT, Chief Judge, BARKETT, Circuit Judge, and RONEY, Senior Circuit Judge.

HATCHETT, Chief Judge:

Appellant Luis Cabrera appeals his conviction and sentence for knowingly possessing cellular telephone cloning equipment, in violation of 18 U.S.C. § 1029(a)(4). Because the government failed to provide reliable and specific evidence regarding the fraud loss attributable to Cabrera, we vacate Cabrera's sentence and remand the case to the district court for resentencing.

I. BACKGROUND

In June 1996, a confidential informant told Secret Service agents than an individual known to him as "Shorty" had a small black box known as a "copy-cat," a device that allows individuals to clone cellular telephones illegally. Witnesses later identified "Shorty" as the appellant Cabrera. During a recorded telephone conversation between Cabrera and the informant, Cabrera offered to clone a cellular telephone for the informant in exchange for ten Electronic Serial Number/ Mobile Identification Number (ESN/MIN) combinations. ¹ In addition, Cabrera told the informant that he could sell him a copy-cat for $1899. Later that day at a meeting, the informant, who was wearing a wire, gave Cabrera a cellular telephone and a piece of paper containing ten fictitious ESN/MIN combinations. Using his copy-cat, Cabrera cloned the cellular telephone, replacing its original ESN/MIN combination with one of those provided from the informant. ²

After Secret Service agents, who were surveilling the meeting, arrested Cabrera he admitted that he owned the copy-cat and cloning cables and had used them to clone two or three cellular telephones. Cabrera also stated that his "scanner"(ESN reader) was broken, making it necessary for him to purchase ESN/MIN combinations. Cabrera stated he used the "scanner" for one month before it became inoperable, and that he purchased nine ESN/MIN combinations from an individual named "Tony." ³

When the agents later searched Cabrera's home, they seized an entire cloning operation consisting of a computer, cloning software, computer disks containing ESN/MIN combinations, cloning interface cables, an ESN reader, various cellular telephones, a computer-generated list of ESN/MIN combinations and an EPROM programmer, which cloners use to reprogram cellular telephones. Cabrera shared his home with a roommate.

At the time of his arrest, Cabrera gave the agents a list of ESN/MIN numbers that he had cloned. ⁴ The agents gave all of the ESN/MIN combinations found on Cabrera's handwritten list, the computer-generated list, the computer and the computer disks to cellular service providers so that they could determine whether any of the legitimate owners of the cellular telephones assigned the combinations were defrauded. In addition, the agents interviewed Nelson Diaz, the owner of the air conditioning business where the agents arrested Cabrera. Diaz signed a statement acknowledging that he had known Cabrera for one and a half years and that Cabrera had cloned telephones during that entire period.

II. PROCEDURAL HISTORY

A grand jury in the Southern District of Florida indicted Cabrera on one count of possessing telephone cloning equipment in violation of 18 U.S.C. § 1029(a)(4). ⁵ Before Cabrera's sentencing, a probation officer prepared a Presentence Investigation Report (PSI) that calculated Cabrera's base offense level at six, pursuant to U.S. Sentencing Guidelines Manual § 2F1.1. The PSI recommended that the district court adjust this offense level upward eleven additional levels, pursuant to Sentencing Guidelines § 2F1.1(b)(1)(L), to reflect a fraud loss of $850,897.32. The PSI based the fraud loss figure on the total amount of fraud the cellular service providers reported for all of the ESN/MIN combinations contained on Cabrera's handwritten list, the computer-generated list, the computer and the computer disks found in Cabrera's home. The PSI also recommended that Cabrera receive a two-level enhancement to reflect that his offense involved more than minimal planning and/or more than one victim; and it also recommended a three-level decrease for his acceptance of responsibility and his timely guilty plea. Based on a total offense level of 16 and a nonexistent criminal history, the PSI calculated Cabrera's presumptive guidelines sentencing range to be between 21 and 27 months. ⁶

Cabrera filed a motion for the government to produce specific evidence regarding the fraud loss calculation in the PSI. The government filed a responsive pleading with several attachments, including one attachment that summarized the fraud loss each cellular service provider suffered. Although the government stated that all of the loss occurred within a one-year period, the summary failed to provide a time period for each loss. Moreover, the compilation did not associate the loss with the ESN/MIN combinations found on the list Cabrera provided containing combinations that he used to clone telephones, the computer generated list found in Cabrera's home, or the computer and accompanying disks, also found in Cabrera's home.

Cabrera filed objections to the PSI challenging the fraud loss figure and moved to strike the government's fraud loss amount. Cabrera also argued that the government failed to prove that he was the person responsible for the fraud loss amount it advanced and that he cloned cellular telephones for only a short time. ⁷ In addition, Cabrera requested that the government identify what portion of the loss came from the ESN/MIN combinations that he provided to the agents when they arrested him.

Cabrera pleaded guilty to possessing cellular telephone cloning equipment. ⁸ At the sentencing hearing, Cabrera argued that the government had failed to support its fraud loss figure through specific and reliable evidence that linked him to the loss. Although Cabrera admitted that he possessed the cellular telephone cloning equipment, he stated that the government's evidence did not show that he had used the computer and software seized from his home, which he shared with another individual, to clone telephones. Cabrera also argued that it is "well known" that different cloners use the same ESN/MIN combinations and that the government failed to show that these other individuals were not responsible for the loss.

When the district court asked Cabrera whether he wanted to present any evidence to establish that someone else used the cellular telephone cloning equipment found in his home, Cabrera instead discussed a sworn affidavit that he obtained from Diaz recanting his prior statement and asserting that he was aware Cabrera cloned cellular telephones for only three months, rather than a year and a half. ⁹

In response, the government argued that Cabrera admitted cloning cellular telephones for two years. ¹⁰ The government stated that it attributed only one year of the fraud loss associated with the stolen ESN/MIN combinations to Cabrera. The district court overruled Cabrera's objection to the government's fraud loss figure, finding that the one-year period was appropriate and noting that Cabrera presented no evidence to contradict the government's figure. The district court granted Cabrera's request for the three level downward departure for acceptance of responsibility. The district court sentenced Cabrera to 33 months of imprisonment, including 6 months on the failure to appear charge.

III. ISSUES

The issues we discuss are whether the district court erred when: (1) it failed to require the government to provide "reliable and specific evidence" regarding the amount of fraud loss; and (2) it adopted the PSI without making "any" findings on the issue of the disputed fraud loss figure.

IV. DISCUSSION

A. The fraud loss estimate

We review the district court's loss determination for clear error. See United States v. Goldberg, 60 F.3d 1536, 1539 (11th Cir.1995). The guidelines do not require the government to make a fraud loss determination with precision; the figure need only be a reasonable estimate given the information available to the government. See United States v. Dominguez, 109 F.3d 675, 676 (11th Cir.1997). Upon challenge, however, the government bears the burden of supporting its loss calculation with "reliable and specific evidence." See United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir.1997); United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir.1995). Cabrera argues that the district court impermissibly imposed an obligation on him to produce evidence disputing the government's figure rather than requiring the government to meet this standard.

Cabrera first argues that, pursuant to Sepulveda, the government must proffer a "cell site" analysis. See Sepulveda, 115 F.3d at 889. A cell site analysis identifies the geographic area producing the calls. See Sepulveda, 115 F.3d at 890. Sepulveda, however, is factually distinguishable from this case. In Sepulveda, the defendants operated a "call sell center" where customers rented cellular telephones, with all the calls emanating from one location, the call sell center. The call sell center was located between two portions, or sectors, of a cell site. After the government arrested the Sepulveda defendants, it made numerous test calls at the call sell center to determine the cell sector that handled the calls. Cell sector A handled all...