U.S. v. Orr

• Decision Date: 27 May 2009
• Docket Number: No. 08-7070.,08-7070.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Djuan Jahmar ORR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

567 F.3d 610

UNITED STATES of America, Plaintiff-Appellee, v. Djuan Jahmar ORR, Defendant-Appellant.

No. 08-7070.

United States Court of Appeals, Tenth Circuit.

May 27, 2009.

Robert A. Ridenour, Assistant Federal Public Defender (Julia L. O'Connell, Federal Public Defender; Barry L. Derryberry, Research & Writing Specialist, with him on the brief), Office of the Federal Public Defender, Tulsa, OK, for Defendant-Appellant.

Christopher J. Wilson, Assistant United States Attorney (Sheldon J. Sperling, United States Attorney, with him on the brief), Muskogee, OK, for Plaintiff-Appellee.

Before KELLY, BRISCOE, and HARTZ, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Djuan Orr was convicted, following a jury trial, of one count of knowingly possessing fifteen or more counterfeit or unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3), and one count of using a counterfeit access device, in violation of 18 U.S.C. § 1029(a)(1). Orr was subsequently sentenced to seventy-seven months' imprisonment. Orr now appeals his sentence, arguing the district court lacked an evidentiary basis for calculating the number of victims and the amount of loss, and in turn applying enhancements based on those calculations. The government has conceded that the district court erred in its loss calculations, but argues there was evidentiary support for the court's findings regarding the number of victims. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Orr that the district court erred in both regards, and thus remand for resentencing.

I

In August 2007, Secret Service agents began investigating fraudulent credit card transactions that had been occurring in the Dallas, Texas, metropolitan area. Defendant Orr was identified as a suspect in the transactions and, on August 24, 2007, Secret Service agents, by way of cell phone tracking, located Orr at a motel in Ardmore, Oklahoma. The front desk clerk at the motel recognized Orr from a photograph, and informed the agents that Orr had arrived at the motel on the morning of August 24th in a vehicle bearing Texas plates, had rented a room for two people using the name Mike Keys, and had provided a District of Columbia driver's license and an American Express card bearing that same name. The Secret Service agents obtained the American Express card number from the clerk, contacted American Express, and were informed that the card number was actually held by an individual named Bipin Adhikary.

The Secret Service agents subsequently arrested Orr as he was observed leaving his motel room. A search of Orr's person incident to arrest produced a District of Columbia driver's license and an American Express gift card, both bearing the name Mike Keys. The original numbers on the gift card appeared to have been flattened and new numbers re-embossed.

Orr advised the agents that there was another person in the motel room with him. The agents proceeded to Orr's motel room, where they made contact with an individual named Maurice Dixon. Dixon allowed the agents into the room and gave written consent for them to search the room. The agents seized twenty-two counterfeit credit, debit and gift cards that bore the names of four different individuals, none of whom were Orr or Dixon. Most of the cards appeared to have had their original names and numbers flattened and new numbers and names re-embossed on the front of the cards.

A search of Orr's vehicle produced a wallet, located in a map pocket on the back of the front passenger seat, containing an Ohio driver's license bearing the name of Stephen Higgins. Although the license number was subsequently determined to be valid, the photo on the license appeared to be that of Dixon. Also contained in the wallet were two counterfeit credit cards and a Winstar Casino players card all bearing the name of Stephen Higgins.

Subsequent investigation revealed that, of the twenty-six counterfeit cards seized in connection with Orr's arrest, seven had been used fraudulently. With respect to each of those seven cards, the issuing bank or credit card company confirmed that the actual owner of the card had made a fraud claim and had not given permission to anyone else to use the account number.

On September 12, 2007, a federal grand jury indicted Orr on one count of knowingly possessing fifteen or more counterfeit or unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3), and one count of using a counterfeit access device, in violation of 18 U.S.C. § 1029(a)(1). The case proceeded to trial on November 19-20, 2007. At the conclusion of the evidence, the jury found Orr guilty as charged in both counts of the indictment.

The probation officer assigned to Orr's case submitted a final presentence report (PSR) on March 14, 2008. In describing "The Offense Conduct," the PSR referred not only to the relevant events surrounding Orr's arrest in Ardmore, Oklahoma, on August 24, 2007, but also alleged that Orr was in fact the leader of a Texas-based conspiracy to create and use counterfeit access devices. ROA, Vol. 3, PSR at 2-5. According to the PSR, Orr and his coconspirators "mined" credit card data "through the use of skimming devices," "downloaded" the credit card data "into a computer to create fraudulent credit cards," and then used the fraudulent credit cards "at retail stores to purchase high end items." Id. at 5. Consistent with these allegations, the PSR alleged "[t]here [we]re 704 known credit card numbers that were compromised in this case," and that these credit cards had been issued by approximately seventy-five separate banks. Id. at 5-6 (listing each of these banks). In addition, the PSR alleged that "[f]ifteen of these [seventy-five] banks suffered a[n actual] monetary loss of $154,962.53."¹ Id. at 6. Of those fifteen banks, the PSR alleged that five, i.e., American Express, Citibank, Discover, U.S. Bank, and Wells Fargo, suffered actual monetary losses, totaling slightly more than $10,000, in connection with the counterfeit credit cards seized by Secret Service agents from Orr on August 24, 2007. Consistent with these allegations, the PSR imposed a base offense level of six pursuant to U.S.S.G. § 2B1.1(a)(2), and then applied, in pertinent part, a fourteen-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(H) based on the total amount of loss (which the PSR calculated to be $472,032.18²), and a two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(2)(A) because the offense involved ten or more victims.

Orr's counsel filed written objections to portions of the PSR. In particular, Orr's counsel "object[ed] to the factual basis for the findings of relevant conduct," noting that "[t]he jury only found that [Orr] and Dixon possessed some 20 + cards or numbers, with no more names or numbers involved," yet "[s]omehow" the PSR included "unsubstantiated allegations of criminals [i.e., Orr's alleged coconspirators] to decide that [Orr][wa]s tied into, or [wa]s the leader, of a credit card ring in north Texas." Id., attached letter of Orr's counsel at 1. Orr's counsel also asserted that, "[e]ven were the flawed claims from the crooks included, we still object to the loss findings." Id. at 2. More specifically, Orr's counsel stated:

Paragraph 20 [of the PSR] claims that fifteen banks claimed losses of $154,962.53. Where did that number come from? There is no proof of these losses, how they were incurred, or how they are reasonably foreseeable to my client's decisions or actions. Are the losses to real people or corporations? Have the victims who claim losses been contacted, or is the PSR relying on calculations drawn directly from the third or fourth-hand accounts made to credit card representatives who passed it on to another agent for recording? The Court should have evidence to support such findings. Where are the witness statements detailing the loss? Paragraph 21 [of the PSR] states that Citibank has suffered a total loss of $100,978.18, but the Court has no proof of why it should use that amount. The PSR cannot contain unfounded, unproven numbers as the basis for the Court's decision.

Id. Lastly, Orr's counsel "object[ed] to the finding of the facts and legal interpretation of Paragraph 29 of the PSR," which imposed the two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(2)(A) because the offense involved ten or more victims. Id. In support of this objection, Orr's counsel stated:

Application Note One of USSG 2B1.1 defines a victim as: (A) any person who sustained any part of the actual loss determined under (b)(1); or (B) any individual who sustained bodily injury as a result of the offense. We adopt the argument and authority asserted by counsel for Dixon in his objections to the conclusion regarding number of victims. There is no proof of actual loss to in excess of 10 victims.

Id.

The probation officer, in response to these objections, prepared an addendum to the PSR stating, in pertinent part:

Defendant's Objection No. 1: The defendant objects to the factual basis for the findings of relevant conduct in this case. Probation Officer's Response to Defendant's Objection No. 1: Based on the conduct that occurred in Oklahoma and Texas, the facts show that this case involved a conspiracy to make counterfeit credit cards from data mined through the use of skimming devices. Orr has been identified by co-defendants of the conspiracy as an integral part of this conspiracy both in Oklahoma and in Texas. The counterfeited credit cards produced and used as a result of the conspiracy has resulted in significant loss to credit card companies. The Probation Officer maintains that Orr is accountable for all unauthorized access devices seized in this case to include the relevant conduct which occurred in Texas.

Defendant's Objection No. 2: The defendant objects to receiving a two level enhancement for 10 or more victims. Probation Officer's Response to Defendant's Objection No. 2: As argued by counsel for the...