United States v. Cruz

• Decision Date: 26 March 2013
• Docket Number: 11–12441.,Nos. 11–12568,s. 11–12568
• Citation: 713 F.3d 600
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jose CRUZ, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Lisandra Cruz, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

713 F.3d 600

UNITED STATES of America, Plaintiff–Appellee,

v.Jose CRUZ, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Lisandra Cruz, Defendant–Appellant.

Nos. 11–12568, 11–12441.

United States Court of Appeals, Eleventh Circuit.

March 26, 2013.

Olivia Choe, Wifredo A. Ferrer, Michael J. O'Leary, Lisa Tobin Rubio, Kathleen Mary Salyer, Anne Ruth Schultz, Emily M. Smachetti, Christopher Parente, U.S. Attys., Miami, FL, for Plaintiff–Appellee.

Michael Caruso, Jan Christopher Smith, II, Fed. Pub. Defenders, Miami, FL, Timothy Cone, Fed. Pub. Def., Fort Lauderdale, FL, for Defendant–Appellant Jose Cruz.

Israel Jose Encinosa (Court–Appointed), Miami, FL, for Defendant–Appellant Lisandra Cruz.

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

Before CARNES and BLACK, Circuit Judges, and RESTANI,^* Judge.

BLACK, Circuit Judge:

We address two Sentencing Guidelines issues which are questions of first impression in this Circuit. First, Jose and Lisandra Cruz assert the district court erred in enhancing their sentences under U.S.S.G. § 2B1.1(b)(10), ¹ for the use or possession of device-making equipment as they were already subject to a two-year mandatory sentence under 18 U.S.C. § 1028A for aggravated identity theft.² Jose and Lisandra contend the possession of device-making equipment was part of the “relevant conduct” for their 18 U.S.C. § 1029(a)(2) offenses of defrauding by using an unauthorized access device, and the commentary to the Sentencing Guidelines precludes such double counting. Second, Lisandra contends the district court clearly erred in imposing an abuse-of-trust enhancement under U.S.S.G. § 3B1.3 because her position as a Target store cashier did not support such an enhancement. After review of the record and having had the benefit of oral argument, we affirm the district court.³

I. BACKGROUND

While we are addressing only issues brought by Jose and Lisandra Cruz in this opinion, it is helpful to summarize the relationships between the four co-defendants involved in the underlying case. Jose and co-defendant Yuremys Marchante, who consider themselves husband and wife, lived together. Jose and Lisandra are brother and sister, and Lisandra also lived in the home shared by Jose and Marchante. Alexis Toledo was a server at a restaurant and skimmed credit cards there at Marchante's and Jose's direction.

In May 2010, Marchante approached Toledo, who was working as a server in a Flanigan's restaurant in Hialeah, Florida. Marchante introduced herself to Toledo, and told Toledo to contact her if she wanted to make some extra cash. A few days later, Toledo called Marchante, and the two arranged to meet. During the meeting, Marchante gave Toledo a credit card skimming device. Marchante showed Toledo how to skim credit card numbers from customers at Flanigan's, cautioning her not to let anyone see her skimming the cards. Marchante told Toledo that she would be paid $20 per credit card number skimmed and that she should call Marchante in a couple of weeks to pick up the skimmer.

Toledo began skimming credit cards from Flanigan's customers. Approximately a week and a half later, Toledo called Marchante to set up a meeting. Toledo then met with Marchante and Jose. During the meeting, Jose checked the skimmer and paid Toledo $700 after determining that she had skimmed 35 credit card numbers.

A few days later, Marchante called Toledo to tell her the skimming device was available, and Toledo met Marchante to obtain the skimmer. Toledo again skimmed credit cards from Flanigan's customers. Approximately two weeks later, Toledo called Marchante to see if she wanted to pick up the device. Marchante had Toledo meet with Jose, at which time he determined Toledo had skimmed 20 cards and paid her $400 in cash. Jose also offered Toledo Target gift cards, Boost Mobile cards, and Disney World tickets, all of which Toledo declined.

Three to four days later, Toledo met with Marchante to retrieve the skimmer. Over the next several days, Toledo skimmed several credit card numbers from Flanigan's customers. Thereafter, Toledo called Jose and Marchante to arrange a meeting. At the meeting, Toledo returned the skimmer to Jose and discontinued her association with Jose and Marchante. Toledo was paid a total of $1,700 for the valid credit card numbers she skimmed.⁴

During April and May of 2010, Lisandra worked at a Target store in Miami Gardens, Florida, as a guest services attendant. In early May of 2010, based on a complaint from a customer who had been billed on his credit card for $200 in Target purchases he had not made, Jose Rocha, a Target Protection Specialist, examined some records and viewed a surveillance video of questionable transactions. On the video, Rocha saw a male customer swiping one credit card numerous times to purchase Target gift cards and various pieces of merchandise. Lisandra was the employee who processed these transactions. The receipts for those sales, instead of listing a cardholder's name as the purchaser,had generic entries such as “easy bill pay” or “gift card for you.”

Searching for other transactions where such generic forms of identification appeared on the receipts, Rocha found at least 30 additional transactions, all handled by Lisandra. The transactions all involved the same male customer and/or a female customer repeatedly swiping one credit card to make purchases. One of those transactions, on May 5, 2010, involved the purchase of several Boost Mobile phone cards by the same male and female customer. The video also showed the male customer repeatedly swiping one credit card and Lisandra, without any apparent communication from the customer, pulling a stack of gift cards from a drawer and selling them to him. A few minutes later, again without any apparent communication to Lisandra, the female customer purchased baby clothes, several Boost Mobile cards, and a stack of gift cards. Target's records showed additional transactions involving Lisandra and the same male and female customers who purchased numerous Target gift cards under similar circumstances during the time frame of the conspiracy.

According to Damian Smith, an investigative technician for Target Corporation, surveillance videos and records of “point of sale” transactions in the Miami Gardens store showed that, from April 30 to May 29, 2010, Lisandra processed 65 gift card transactions and 50 other transactions involving those same two customers, who used 20 different credit card account numbers to incur a total of $15,696.14 in charges. During this time period, Lisandra also used Target gift cards purchased by those customers to make her own purchases of Target merchandise, on which she received a 10% discount.

When interviewed by Miami–Dade Police Detective Adrian Barazal, Lisandra stated that her brother, Jose, came to Target during a one-month period with various credit cards that did not belong to him. Lisandra admitted to processing approximately 50 transactions in which either her brother or Marchante purchased gift cards. She explained that in her position at Target, she had the authority to open any register to process a transaction, which she did when Jose made purchases. She knew the cards Jose used were fraudulent because he had so many and because the cards did not belong to him. She identified photographs of Jose and Marchante, and wrote the following signed statement:

It started at the end of April my brother Jose Cruz started coming to the store with several different credit cards that didn't belong to him. I rang him up at the register where he purchase[d] additional gift cards. He made several purchases and the rest were done by his girlfriend Yurem[y]s Marchante. The only thing I got was a $200 gift card that I used at the store in Miramar and a Boost mobile phone that we all bought together....

Based on this evidence, a jury found Jose and Lisandra guilty as charged. The district court determined that Jose's base offense level was 6, and added a 10–point enhancement for a loss amount of over $120,000, a 2–point enhancement for an offense involving 10 or more victims, a 2–point enhancement for the use of device-making equipment, and a 2–point enhancement for his role as an organizer or leader of the conspiracy, making his total offense level a 22. His criminal history category was III. Jose's applicable Guidelines range was 51 to 63 months' imprisonment, with a mandatory consecutive 24 months' imprisonment on Counts Three and Four. The district court sentenced Jose to 75 months' imprisonment, which consisted of 51 months on Counts One and Two, and 24 months on Counts Three and Four, to be served consecutive to Counts One and Two but concurrent to each other.

The district court determined that Lisandra's base offense level was 6, and added a 4–point enhancement for a loss amount of over $10,000, a 2–point enhancement for an offense involving 10 or more victims, a 2–point enhancement for the use of device-making equipment, and a 2–point enhancement for abusing a position of trust, making her total offense level 16. Combined with her criminal history category of I, Lisandra's applicable Guidelines range was 21 to 27 months' imprisonment on Counts One and Two, with a mandatory consecutive 24 months' imprisonment on Counts Three and Four. The district court sentenced Lisandra to 45 months' imprisonment, which consisted of 21 months on Counts One and Two, and 24 months on Counts Three and Four, to be served consecutive to Counts One and Two but concurrent to each other.

II. STANDARD OF REVIEW

We review the district court's legal conclusions regarding the Sentencing Guidelines de novo, and its factual findings for clear error. United States v. Barner, 572 F.3d 1239, 1247 (11th Cir.2009).

III. DISCUSSION

A. Enhancement for use of Device–Making Equipment

Jose and Lisandra were convicted of two counts of aggravated identity theft under 18 U.S.C. § 1028A, a statute...