U.S. v. Sharapka, 06-2715.

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Merritt
• Citation: 526 F.3d 58
• Parties: UNITED STATES, Appellee, v. Oleksiy SHARAPKA, Defendant, Appellant.
• Docket Number: No. 06-2715.,06-2715.
• Decision Date: 22 May 2008

526 F.3d 58 UNITED STATES, Appellee,
v.
Oleksiy SHARAPKA, Defendant, Appellant. No. 06-2715. United States Court of Appeals, First Circuit. Heard April 8, 2008. Decided May 22, 2008.

[526 F.3d 59]

Adam J. Bookbinder, Assistant U.S. Attorney, with whom Michael J. Sullivan, U.S. Attorney, was on brief for appellant.

Peter B. Krupp with whom Lurie & Krupp, LLP was on brief for appellee.

Before LYNCH, Circuit Judge, MERRITT,^* Senior Circuit Judge, and HOWARD, Circuit Judge.

MERRITT, Senior Circuit Judge.

Oleksiy Sharapka was sentenced to 121 months' imprisonment after he pled guilty to a 13-count information alleging identity theft, counterfeiting, and mail fraud. The charges stemmed from the defendant's illegal activities in Georgia — a state that he had fled during pretrial custody¹ — and in Boston, Massachusetts. At the time of his arrest, Sharapka was found with approximately 315 stolen credit card numbers, "ID kits," various other PIN and credit card numbers, and equipment valued at over $80,000.²

In this appeal, the defendant challenges his sentence on two grounds. First, he argues as a factual matter that the district court improperly determined that ten or more victims suffered financial losses due to his activities, a finding that increased his sentence by two levels. See U.S. Sentencing Guidelines Manual ("Guidelines") § 2B1.1(b)(2)(A) (2005). And second, he argues that the district court erred in imposing a two-level enhancement for possession of device-making equipment pursuant to § 2B1.1(b)(10)(A) of the Guidelines. The defendant does not raise any Sixth Amendment sentencing issue under the Blakely-Booker-Cunningham line of cases. See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United States v. Booker, 543 U.S.

526 F.3d 60

220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007).

For the following reasons, we affirm the district court's sentence of 121 months.

I. Sharapka's sentence

Because the defendant only challenges the sentence, and not the underlying conviction, we will only address the facts pertinent to the issues raised. At sentencing, the district court found a base offense level of seven under § 2B1.1(a)(1) of the Guidelines, and then added the following enhancements: (1) 14 levels for the stipulated loss ($400,000 to $1,000,000), (2) two levels for more than 10 but fewer than 50 victims, (3) two levels for receipt of stolen property, (4) three levels for the commission of an offense while on release, (5) two levels for possession of device-making equipment, and (6) two levels for managerial role in the offense. The court then deducted two levels for acceptance of responsibility. The resulting offense level of 30 corresponded to a Guidelines sentencing range of 97-121 months. In addition, there was a 24-month mandatory consecutive sentence for aggravated identity fraud, which, when added to the level 30 offense, resulted in a range of 121-145 months. See U.S. Sentencing Guidelines Manual § 2B1.6 (2005). The district court then sentenced Sharapka to the bottom of this range, 121 months.

We review findings of fact at sentencing hearings for clear error and legal issues de novo. United States v. Pacheco, 489 F.3d 40, 44 (1st Cir.2007).

II. The enhancement for more than 10 but fewer than 50 "victims"

At the first day of the sentencing hearing, a government agent testified that the issuing banks suffered direct financial losses as a result of Sharapka's credit card fraud. However, another agent later testified that he had been unable to quantify these values because banks purge credit card accounts that are the subject of fraud. The government maintained that the issuing bank, and not the credit card company, suffered the direct financial loss as a result of the fraudulent use.³ After the second day of the sentencing trial, the district court indicated that it was still unsure as to whether there were, in fact, more than 10 victims who suffered a financial loss.

On the third day of the sentencing hearing, the government introduced a proffer — based on its conversation with American Express — that the vendor, and not the card-issuing bank, actually suffered the financial losses due to Sharapka's activities. The government then provided a list of 14 vendors its agents had contacted and who had reported losses due to Sharapka's illegal purchases. Based on this newly introduced information, the district court imposed a two-level increase to the defendant's sentence. The defendant contends that the court erred by relying on this proffer; specifically, he argues that the proffer fails to link the alleged losses (i.e. items seized at Sharapka's...