United States v. Barrogo

• Decision Date: 02 February 2023
• Docket Number: 21-10228
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARITES M. BARROGO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARITES M. BARROGO, Defendant-Appellant.

No. 21-10228

United States Court of Appeals, Ninth Circuit

February 2, 2023

Argued and Submitted October 13, 2022 Honolulu, Hawaii

Appeal from the United States District Court No 1:20-cr-00012-FMTG-1 for the District of Guam Frances Tydingco-Gatewood, Chief District Judge, Presiding

Kathryn A. Young (argued), Deputy Federal Public Defender Cuauhtemoc Ortega, Federal Public Defender, Federal Public Defender's Office, Los Angeles, California; for Defendant-Appellant.

Benjamin K. Petersburg (argued), Assistant United States Attorney; Shawn N. Anderson, United States Attorney, Office of the United States Attorney, Hagatna, Guam; for Plaintiff-Appellee.

Before: Mary M. Schroeder, Johnnie B. Rawlinson, and Daniel A. Bress, Circuit Judges.

SUMMARY ^[*]

Criminal Law

The panel affirmed a criminal judgment in a case in which the defendant pleaded guilty to conspiracy to use, transfer, acquire, alter or possess Supplemental Nutrition Assistance Program benefits without authorization, in violation of 7 U.S.C. § 2024 and 18 U.S.C. § 371.

Considering principally whether the district court properly imposed a two-level sentencing enhancement under U.S.S.G. § 2B1.1(b)(11)(A)(ii) for the defendant's misuse of an "authentication feature," the panel held that a personal identification number associated with a debit-type card is an "authentication feature" under the Sentencing Guidelines and the statutory provisions they reference.

The panel held that the defendant did not demonstrate error in the district court's order requiring her to pay $18,752.30 in restitution, and rejected the defendant's argument that the government's breach of the plea agreement constituted plain error.

OPINION

BRESS, CIRCUIT JUDGE

In this criminal case involving the unauthorized use of federal food stamp benefits, we principally consider whether the district court properly imposed a two-level sentencing enhancement for the defendant's misuse of an "authentication feature." U.S.S.G. § 2B1.1(b)(11)(A)(ii). We hold that a personal identification number (PIN) associated with a debit-type card is an "authentication feature" under the Sentencing Guidelines and the statutory provisions they reference. We also reject the defendant's other assignments of error and affirm her conviction and sentence.

I

The Supplemental Nutrition Assistance Program (SNAP), formerly known as the Food Stamp Program, is a federal program that "permit[s] low-income households to obtain a more nutritious diet through normal channels of trade by increasing food purchasing power for all eligible households who apply for participation." 7 U.S.C. § 2011; see also Hall v. U.S. Dep't of Agric., 984 F.3d 825, 831 (9th Cir. 2020) (describing the SNAP program). States and territories are provided funding to administer SNAP benefits. 7 U.S.C. § 2013(a).

In Guam, SNAP is administered through the Guam Department of Public Health and Social Services (DPHSS). DPHSS provides SNAP recipients with an Electronic Benefits Transfer (EBT) card, which is like a debit card that can be used at authorized stores to buy certain food products. Each EBT card has a card number imprinted on it. And each cardholder has a PIN that, like a debit card PIN, must be entered at the point of sale to complete the transaction.

Marites Barrogo, who was not a SNAP beneficiary, was the owner and operator of Laguna Best Restaurant and Catering in Harmon, Guam. From 2015 to 2020, Barrogo bought SNAP benefits from various individuals at a substantial discount, and then used those benefits to buy bulk food items for her restaurant.

Barrogo used two different methods to traffic SNAP benefits. From 2015 to 2018, Barrogo regularly purchased SNAP benefits from co-defendant Stephanie Muna. Approximately once a month, Muna would give Barrogo her EBT card and PIN and Barrogo would purchase bulk food items for Laguna Best. Barrogo would typically use $600 worth of SNAP benefits each month, for which she would pay Muna $400 in cash. During this period, Muna recruited at least four other SNAP beneficiaries to sell their benefits to Barrogo.

In June 2018, the DPHHS Investigation and Recovery Office began investigating Barrogo. When investigators visited her restaurant and questioned her, Barrogo admitted that she had been paying Muna cash in exchange for SNAP benefits. Barrogo also provided investigators with a signed statement acknowledging her transactions with SNAP beneficiaries. Following this interview, DPHSS permanently disqualified Muna from receiving SNAP benefits. Muna's trafficked SNAP benefits ultimately totaled $15,625.

Notwithstanding the DPHSS investigation, Barrogo continued to traffic SNAP benefits with at least three other SNAP beneficiaries, except now using a more surreptitious method. Instead of using the EBT cards herself, she gave shopping lists to SNAP beneficiaries who then purchased food for the restaurant in exchange for cash.

In December 2019, the DPHSS Investigation and Recovery Office received a call from an informant who reported that two men were delivering food items to Laguna Best using their vehicle. The informant provided photos of the men, one of whom was later identified as A.M. Using video footage from stores, the investigators concluded that A.M. and his common law spouse, J.D., had been using their SNAP benefits to make two to three purchases per month of the same bulk food items, including large sacks of rice, boxes of frozen meats, vegetables, and a whole pig. These items were clearly not intended for personal household consumption. Between the video footage and the informant's photos of A.M. delivering bulk food items to Laguna Best, investigators were able to link these purchases to Barrogo.

Based on EBT card receipts reflecting suspected trafficked items, DPHSS concluded that A.M. and J.D. had provided a total of $21,317.67 in SNAP benefits to Barrogo between 2018 and 2020. Following another anonymous tip, DPHSS identified a fourth individual, A.T., with whom Barrogo had trafficked another $561.53 in SNAP benefits. The informant reported that on November 4, 2019, A.T. delivered ten sacks of rice and five boxes of spareribs to Laguna Best.

A grand jury indicted Barrogo on two counts of the unauthorized use of SNAP benefits, in violation of 7 U.S.C. § 2024, and one count of conspiracy to use, transfer, acquire, alter or possess SNAP benefits without authorization, in violation of 7 U.S.C. § 2024 and 18 U.S.C. § 371. Barrogo pled guilty to the conspiracy count. As part of her plea agreement, Barrogo stipulated to a two-level authentication feature enhancement under U.S.S.G. § 2B1.1(b)(11)(A)(ii), which was based on her use of EBT cards and PINs to purchase food. The other two charges in the indictment were dismissed as part of the plea.

With a two-level increase for use of an authentication feature, the advisory Sentencing Guidelines range was 1016 months in prison. The district court sentenced Barrogo to ten months' imprisonment and three years of supervised release. The court also ordered Barrogo to pay $18,752.30 in restitution. Barrogo timely appealed.

II

We first address whether the district court properly applied the two-level authentication feature enhancement based on Barrogo's use of the SNAP beneficiaries' EBT cards and PINs. Generally, we review the district court's interpretation of the Sentencing Guidelines de novo. United States v. Parlor, 2 F.4th 807, 811 (9th Cir. 2021). Because Barrogo failed to object below, however, we review here for plain error. United States v. Wang 944 F.3d 1081, 1085 (9th Cir. 2019). Regardless, the outcome would be the same under any standard of review because the district court correctly applied the enhancement. ^1[]

U.S.S.G. § 2B1.1(b)(11)(A)(ii) provides for a two-level increase if the offense involved "the possession or use of any . . . authentication feature." Three layered statutory definitions are relevant to the proper interpretation of this enhancement. First, the Sentencing Guidelines incorporate the definition of "authentication feature" found in 18 U.S.C. § 1028(d)(1). See U.S.S.G. § 2B1.1 cmt. 10(A). Section 1028(d)(1) defines an "authentication feature" as

any hologram, watermark, certification, symbol, code, image, sequence of numbers or letters, or other feature that either individually or in combination with another feature is used by the issuing authority on an identification document, document-making implement, or means of identification to determine if the document is counterfeit, altered, or otherwise falsified[.]

18 U.S.C. § 1028(d)(1) (emphasis added).

Second, the statute defines "means of identification" as "any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual." Id. § 1028(d)(7). This includes a long list of standard "means of identification" such as social security and drivers' license numbers. Id. § 1028(d)(7)(A)-(C). But "means of identification" also includes any "access device (as defined in section 1029(e))." Id. § 1028(d)(7)(D) (emphasis added).

Lastly, an "access device" is then defined as

any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument)[.]

Id. § 1029(e)(1) (emphasis added). Taken together, the...