United States v. Delima , 886 F.3d 64 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1132
UNITED STATES OF AMERICA,
Appellee,
v.
MALIK DELIMA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Circuit Judge,
Souter, Associate Justice,*
and Kayatta, Circuit Judge.
Peter J. Cyr and Law Offices of Peter J. Cyr for appellant.
Michael J. Conley, Assistant United States Attorney, with
whom Halsey B. Frank, United States Attorney, was on brief, for
appellee.
March 26, 2018
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LYNCH, Circuit Judge. Malik Delima pleaded guilty in
2016 to conspiring to commit access-device fraud after court-
approved wiretaps, authorized during a separate investigation into
a Vermont-based drug trafficking organization, exposed Delima's
involvement in a scheme to produce and make purchases with
fraudulent credit cards. Delima appeals the district court's
denial of his motion to suppress the wiretap evidence. He also
challenges his sentence on procedural and substantive
reasonableness grounds. We affirm.
I. Background
A. Facts
In 2014, federal law enforcement agents in Vermont began
an investigation into a drug trafficking organization that
transported cocaine and heroin from New York to Vermont and Maine.
As part of that investigation, the agents applied for and obtained
three separate wiretap authorizations from the district court in
Vermont. The wiretaps targeted four phones used by Gary Delima
and other members of the drug trafficking group. Each of the three
wiretap applications was supported by affidavits, on personal
knowledge, from Drug Enforcement Administration agent Timothy
Hoffmann, who participated in the investigation. Through the
wiretaps, the agents learned that Gary Delima and his brother Malik
Delima ("Delima"), the defendant in this case, were at the center
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of another criminal scheme -- one involving the manufacturing and
use of fraudulent credit cards.
On March 24, 2015, law enforcement agents executed a
search warrant at the apartment of one of Malik Delima's associates
in Auburn, Maine. They recovered various equipment used to
manufacture fraudulent credit cards, including a laptop computer,
a credit-card-embossing machine (a "tipper"), a credit card
laminator, a magnetic-strip card reader, approximately 210 prepaid
gift cards, and approximately 150 credit and debit cards. They
also seized a laptop that contained text files with hundreds of
stolen credit card numbers. In total, 2,326 unique credit, debit,
and gift card numbers were seized from the physical cards, the
laptop's files, and email accounts associated with the laptop.
B. Presentencing Proceedings
Malik Delima moved to suppress all evidence obtained
through the wiretaps on the ground that the government had failed
to demonstrate necessity. The district court denied the request
on June 21, 2016.
On July 22, 2016, Delima pleaded guilty to one count of
conspiring to commit access-device offenses in violation of 18
U.S.C. §§ 1029(a)(1), (a)(3), (a)(4) and (b)(2).1 Pursuant to
1 Ten other individuals, including Gary Delima, were
charged for their respective roles in the credit card scheme.
Charges against two of the codefendants, Sabrina McNeil and
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Federal Rule of Criminal Procedure 11(a)(2), Delima conditioned
his guilty plea on the reservation of his right to appeal the
district court's denial of his motion to suppress the wiretap
evidence.
The probation office filed a presentence investigation
report ("PSR"), which stated that Delima, along with his brother
Gary, orchestrated the credit card scheme. It referred to phone
calls showing that the two brothers oversaw nine other individuals
who assisted in the execution of the scheme. The PSR also noted
that, based on the 2,326 card numbers recovered from the seizure,
and the formula specified in U.S.S.G. § 2B1.1, the total loss
amount was $1,163,000 (2,326 cards multiplied by $500 per card).
The PSR calculated Delima's base offense level to be
six. It then recommended a fourteen-level enhancement because the
estimated loss was more than $550,000 and less than $1,500,000,
pursuant to U.S.S.G. § 2B1.1(b)(1)(H); a two-level enhancement
because the offense involved possession of device-making
equipment, pursuant to § 2B1.1(b)(11)(B)(i); a two-level
enhancement because there were at least ten victims, pursuant to
§ 2B1.1(b)(2)(A)(i); a four-level enhancement because Delima was
an organizer and/or leader of a criminal enterprise with five or
more participants, pursuant to § 3B1.1(a); and a three-level
Destinee Theriault, were dismissed. The remaining eight
codefendants pled guilty.
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reduction for Delima's acceptance of responsibility, pursuant to
§ 3E1.1. As such, the PSR determined that Delima had a total
offense level ("TOL") of twenty-five.
Because Delima had a number of prior convictions, the
PSR calculated that he had a criminal history category ("CHC") of
IV. Based on a TOL of twenty-five and a CHC of IV, the applicable
guideline range was 84-105 months. The PSR adjusted the range to
84-90 months because there was a statutory cap of ninety months'
incarceration. See 18 U.S.C. § 1029(b)(2). Delima objected to
three aspects of the PSR: the estimated loss amount, his role
enhancement, and the two criminal history points associated with
his Youthful Offender conviction.
C. Loss-Amount Hearing and Sentencing Hearing
The district court held an evidentiary hearing to
determine the loss amount on December 22, 2016. Delima and two of
his codefendants were present at the hearing. At the outset, the
government introduced, and the district court admitted without
objection, a spreadsheet of the fraudulent credit card numbers
that the government contended was a "conservative estimate" of the
numbers attributable to the defendants, a summary narrative
chronology, a transcript of jail calls, and transcripts of the
wiretapped calls.
The government then called Secret Service Agent Matthew
Fasulo to testify. Fasulo, who joined the Delima investigation in
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March 2015, described what he understood to be the mechanics of
the credit card scheme: the conspirators purchased stolen credit
card numbers from online sources, used specialized equipment to
manufacture fraudulent credit cards, and recruited women to use
the fraudulent credit cards to purchase goods and gift cards at
retailers. Fasulo then testified that, based on the government's
spreadsheet, approximately 1,024 of the credit card numbers
recovered from the seizures in the apartment were tied to the
conspiracy in the month of March 2015 alone.
Fasulo explained that, based on his review of the
transcripts of the wiretapped calls, he believed that the scope of
the criminal scheme extended beyond Maine to several other states,
including Pennsylvania, Massachusetts, and New York. Fasulo
discussed a number of the wiretapped calls in depth, including a
call in which Delima instructed Gary to order 100 unique credit
card numbers for $1,500; a call showing that Delima and his
coconspirators had been ordering card numbers even before they had
moved their operation to Maine; several calls in which Delima
discussed recruiting women to make purchases with the fraudulent
credit cards; a call in which Delima recommended Plattsburgh, New
York as an attractive place to make purchases; and a call in which
Delima advised Gary on where to test the fraudulent cards.
On cross-examination, Fasulo testified that there was no
evidence directly tying the files found on the seized laptop to
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Delima, and that only about half of the accounts listed in the
government's spreadsheet had been confirmed by banks to be
associated with real individuals.2 On redirect examination, Fasulo
confirmed that, based on his review of email accounts associated
with both the sellers and the buyers of the fraudulent credit card
numbers, none of the conspirators had complained that the card
numbers purchased online were illegitimate.
The sentencing hearing took place on February 1, 2017.
After hearing from the parties, the court addressed the two
disputed issues: the loss amount and the role enhancement.
With respect to the loss amount, the district court noted
that Delima had "agreed to be part of the entire process" of the
conspiracy, pointing to defense counsel's own concessions that
Delima "knew what was planned, knew how it would be done, knew
when it would be done, . . . and knew the people who were going to
do it." As such, the district court attributed "the 1,025
card[ numbers] that were found . . . in the [March 2015] raid" to
Delima.3 The court also found that a "minimum of 75" additional
cards were attributable to Delima, "based on his operations in
2 Fasulo testified that the other half had not been
submitted to the banks for confirmation.
3 The district court rejected Delima's assertion that only
the card numbers that were actually used could be considered in
the loss amount calculation, as well as his contention that some
of the 1,025 card numbers recovered from the raid may have been
fake.
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other areas, and his personal operations previously in Maine."
The court emphasized that seventy-five was a "minimum" figure, and
that Delima was responsible for "probably hundreds" of card numbers
in addition to the 1,025 recovered from the March 2015 search.
Because the district court attributed at least 1,100 cards to
Delima, it determined the loss amount to be "at least [$]550,000"
and applied a fourteen-level loss enhancement pursuant to U.S.S.G.
§ 2B1.1(b)(1)(H).
With respect to the role enhancement, the district court
acknowledged that Delima had "a considerable role in the offense,"
but ultimately decided to give him a three-level role enhancement
as a "manager and supervisor" of the scheme, rather than a four-
level enhancement as an organizer or leader. As a result of the
court's findings on the two enhancements and the acceptance-of-
responsibility reduction, Delima's total offense level was twenty-
four. Combined with a CHC of III,4 the applicable sentencing range
was 63-78 months.
The district court ultimately imposed a seventy-five-
month sentence. In doing so, the court emphasized the interstate,
"broad-ranging" nature of the conspiracy; Delima's role as a
"central character" in the scheme; his "troubled criminal
history;" his involvement in the conspiracy within months of
4 While the PSR recommended a CHC of IV, the district court
adjusted it to III by agreement of the parties.
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completing his supervised-release term from a prior counterfeiting
conviction; the significant harm suffered by Maine residents; and
the fact that the conspiracy "was only stopped fortuitously" by
the March 2015 raid. The district court also stated that it would
have given the same seventy-five-month sentence even if it had
found 1,025 card numbers instead of 1,100.
II. Discussion
On appeal, Delima challenges the district court's denial
of his motion to suppress the wiretap evidence, as well as its
decision to impose the fourteen-level loss enhancement and the
three-level role enhancement. Delima also alleges that the
district court's seventy-five-month sentence was substantively
unreasonable.
A. Denial of Motion to Suppress Wiretap Evidence
Under 18 U.S.C. § 2518(1)(c), wiretap applications must
include "a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why they
reasonably appear to be unlikely to succeed if tried or to be too
dangerous." The government is not required to "run outlandish
risks or to exhaust every conceivable alternative before seeking
a wiretap." United States v. Hoffman, 832 F.2d 1299, 1306 (1st
Cir. 1987). Rather, to satisfy § 2518(1)(c), the government must
demonstrate that it "has made a reasonable, good faith effort to
run the gamut of normal investigative procedures before resorting
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to means so intrusive as electronic interception of telephone
calls." United States v. Rodrigues, 850 F.3d 1, 9 (1st Cir. 2017)
(quoting United States v. Martinez, 452 F.3d 1, 4 (1st Cir. 2006)).
In reviewing the district court's ruling with respect to the
government's showing of necessity, we "decide if the facts set
forth in the [wiretap] application were minimally adequate to
support the determination that was made." United States v.
Santana, 342 F.3d 60, 65 (1st Cir. 2003) (quoting United States v.
López, 300 F.3d 46, 53 (1st Cir. 2002)).
We have upheld wiretap applications supported by
affidavits that "explain[] why the continued use of traditional
investigative techniques (such as confidential sources, grand jury
subpoenas, search warrants, surveillance and consensual
monitoring) would be ineffective in uncovering the full scope of
the potential crimes under investigation." United States v.
Villarman-Oviedo, 325 F.3d 1, 10 (1st Cir. 2003). We have also
approved of affidavits in which "agents assert a well-founded
belief that the techniques already employed during the course of
the investigation had failed to establish the identity of
conspirators, sources of drug supply, or the location of drug
proceeds." Rodrigues, 850 F.3d at 10.
The affidavits supporting all three of the wiretap
applications clearly set forth the goals of the investigation,
which were to (1) identify the conspiracy's leaders; (2) ascertain
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the names, phone numbers, and addresses of associates of the
conspiracy, including drug suppliers, distributors, and customers;
(3) determine the manner in which drugs were trafficked to and
stored in Vermont; and (4) discover the methods used by the
organization to funnel proceeds back to individual participants.
Contrary to Delima's assertions, these goals were not overly broad.
See Martinez, 452 F.3d at 6 (deeming valid, for wiretap-
authorization purposes, similar investigatory goals).
The December 22, 2014 affidavit adequately stated why
each of the ten traditional investigative techniques that had been
employed up to that point would have been ineffective in achieving
the goals of the investigation. For example, the affidavit stated
that the use of confidential informants would have been fruitless
because the informants were low-level "runners" who did not have
access to information pertinent to the investigation's goals; that
controlled drug purchases and pole cameras would not help to
identify the leaders of the conspiracy; and that interviewing
members of the conspiracy might compromise the investigation by
alerting the suspects.
Like the December 22, 2014 affidavit, the February 3,
2015 affidavit properly described why additional wiretaps were
needed to accomplish the investigation's goals and why traditional
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investigative techniques would not suffice.5 It also explained
that, while the December 22, 2014 wiretap had permitted agents to
gain a better understanding of the conspiracy's operations,
wiretaps on two additional phones were necessary to determine,
inter alia, the organization's source for heroin and cocaine base,
its trafficking and money-laundering methods, its use of firearms
in furtherance of the conspiracy, and "the extent of the
organization's distribution network in Maine and other places
outside of Vermont."
At oral argument, defense counsel contended that even if
the first two wiretaps were necessary, the third wiretap was not,
because the agents already had a solid case against the Vermont
drug traffickers by the time they applied for that wiretap. We
disagree. Like the February 3, 2015 affidavit, the affidavit
supporting the February 23, 2015 wiretap application provided
updated reasons as to why new wiretaps were necessary and why
traditional investigative techniques were still unlikely to be
effective. Importantly, the February 23, 2015 affidavit
articulated why the newly requested wiretap would provide the
agents with information "beyond what was acquired through the
5 Moreover, the February 3, 2015 affidavit did not merely
recite the reasoning from the December 22, 2014 affidavit. To the
contrary, its explanation of (1) why another wiretap was needed
and (2) why traditional investigative techniques were still
insufficient was supported by fresh examples and new evidence
uncovered since the December 22, 2014 application.
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monitoring of the previous phones alone." In particular, the
affidavit noted that the third wiretap application targeted a phone
that members of the conspiracy used for internal communications,
whereas prior wiretaps had primarily targeted phones used by the
suspects to communicate with customers. According to Hoffmann,
wiretapping an internal phone would, unlike previous wiretaps,
provide information regarding when drug supplies were being
trafficked to Vermont, the quantity of those drugs, and where those
drugs would be hidden prior to distribution. That information
clearly falls within the parameters of the investigation's
legitimate goals. See id. at 6.
In short, each of the three affidavits provided facts
that were "minimally adequate" to support the wiretap
authorizations. Santana, 342 F.3d at 65 (quoting López, 300 F.3d
at 53).
B. Sentencing Challenges
We review the district court's sentencing decisions,
apart from claimed errors of law, for abuse of discretion. See
United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). We
engage in a two-part analysis: "we first determine whether the
sentence imposed is procedurally reasonable and then determine
whether it is substantively reasonable." Id.
A district court's sentencing decision is procedurally
unreasonable if the district court "fail[s] to calculate (or
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improperly calculat[es]) the Guidelines range, treat[s] the
Guidelines as mandatory, fail[s] to consider the § 3553(a) factors,
select[s] a sentence based on clearly erroneous facts, or fail[s]
to adequately explain the chosen sentence -- including an
explanation for any deviation from the Guidelines range." United
States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008) (quoting Gall v.
United States, 552 U.S. 38, 51 (2007)). A sentence is
substantively reasonable if, "considering the totality of the
circumstances, . . . there is 'a plausible sentencing rationale
and a defensible result.'" United States v. Reyes-Rivera, 812
F.3d 79, 89 (1st Cir. 2016) (quoting Martin, 520 F.3d at 96).
Delima alleges that the district court committed
procedural error by imposing a fourteen-level loss enhancement and
a three-level role enhancement. He also asserts that his seventy-
five-month sentence is substantively unreasonable because a
downward variance was warranted. We reject these arguments for
the following reasons.
1. Loss Enhancement
Under U.S.S.G. § 2B1.1(b)(1)(H), criminal conduct that
causes a "loss" of more than $550,000 but less than $1,500,000
gives rise to a fourteen-level increase in the defendant's offense
level. As an initial matter, to the extent Delima asserts that
the district court should have focused on the actual losses caused
by the conspiracy, which he claims amounted to somewhere between
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$11,000 and $30,000, he misconstrues the Guidelines' definition of
"loss."
U.S.S.G. § 2B1.1 cmt. n.3(A) defines "loss" as the
"greater of actual loss or intended loss," where "actual loss"
represents the "reasonably foreseeable pecuniary harm that
resulted from the offense," and "intended loss" represents "the
pecuniary harm that the defendant purposely sought to inflict,"
including "intended pecuniary harm that would have been impossible
or unlikely to occur." For cases involving counterfeit access
devices, the Guidelines state that "loss includes any unauthorized
charges made with the counterfeit access device or unauthorized
access device and shall be not less than $500 per access device."
Id. at cmt. n.3(F)(i).6
It is clear from the record that the district court
focused on intended losses and rejected Delima's argument that
actual losses should be used. Delima's actual-loss argument
ignores the fact that, under U.S.S.G. § 2B1.1, a "sentencing court
must consider the greater of actual or intended loss." United
States v. Iwuala, 789 F.3d 1, 12-13 (1st Cir. 2015) (emphasis
added). Delima and his conspirators clearly procured credit card
numbers with the intention of using all of the numbers to generate
6 Delima advances no argument that the $500 per device
floor specified in U.S.S.G. § 2B1.1 cm.t n.3(F)(i) is not
applicable when intended loss is used as the measure.
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profits, even if they did not end up actually using all of the
numbers. In fact, as the district court noted, a primary reason
why the conspirators were unable to use the remaining numbers was
because federal agents put a halt to the conspiracy by raiding the
Auburn apartment. As such, the district court correctly focused
its inquiry on how many card numbers the conspiracy procured,
regardless of actual use.
Our next task is to determine the extent of the loss the
conspiracy intended to cause. The government bears the burden of
proving the amount of intended loss by a preponderance of the
evidence. See United States v. Alli, 444 F.3d 34, 38 (1st Cir.
2006). "[D]eference is owed" to the loss determination of the
district court, which "need only make a reasonable estimate of the
loss," because the district court "is in a unique position to
assess the evidence and estimate the loss based on that evidence."
United States v. Sharapka, 526 F.3d 58, 61 (1st Cir. 2008) (quoting
U.S.S.G. § 2B1.1, cmt. n.3).
Defendants who engage in a "jointly undertaken criminal
activity" are responsible for (1) losses that are "directly
attributable" to them, and for (2) losses that result from
"reasonably foreseeable acts committed by others in furtherance of
the jointly undertaken criminal activity." United States v.
Pizarro-Berríos, 448 F.3d 1, 8 (1st Cir. 2006). The sentencing
court must first "ascertain what activity fell within the scope of
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the specific conduct and objectives embraced by the defendant's
agreement," and then "determine to what extent others' acts and
omissions that were in furtherance of jointly undertaken criminal
activity likely would have been foreseeable by a reasonable person
in defendant's shoes at the time of his or her agreement." United
States v. LaCroix, 28 F.3d 223, 227 (1st Cir. 1994).
The district court properly found that Delima had agreed
to be "an integral member" of a conspiracy to procure
misappropriated credit card numbers, produce fraudulent credit
cards, and use the fraudulent cards to transact with merchants.
There was also ample evidence for the district court to conclude
that Delima was aware of even the "smallest detail[s]" of the
conspiracy. Wiretapped conversations revealed that Delima had
funded and profited from the conspiracy, had been aware of the
role of each actor in the conspiracy, and had understood the minute
operational details of the conspiracy, including the appropriate
size of card-number orders and how to effectively test the
fraudulent credit cards. As such, the district court reasonably
found that all 1,025 of the credit card numbers procured by the
conspiracy in March 2015 were foreseeable to Delima. See LaCroix,
28 F.3d at 229 (holding that "a defendant's awareness of the inner
workings of a conspiracy in which he is participating . . .
frequently will suffice to prove the defendant's ability to foresee
the acts of coconspirators").
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Delima argues that there was no evidence of his
involvement in the conspiracy before late February 2015, and that
he should not be responsible for any losses associated with card
numbers outside of the 1,025 numbers attributable to the conspiracy
in March 2015. However, several wiretapped calls evidenced that
Delima had been personally involved in credit card fraud in Maine
and other states well before March 2015. For example, during a
call on February 26, 2015, Delima described Plattsburgh as a
"beautiful" location to make purchases with fraudulent cards
because there were a significant number of "reggies" (i.e., cash
registers) there. In another call on March 6, 2015, Delima stated
that his conspirators needed to "pay homage" to him when they
travelled to the Lewiston-Auburn area to await delivery of a tipper
because that area was "[his] town." And in several other phone
calls, Delima referred to his preexisting connections to women who
were willing to make purchases with fraudulent credit cards. Given
this evidence, the district court reasonably found it probable
that a minimum of seventy-five additional card numbers were
personally attributable to Delima.
The government conceded at oral argument that the
district court was required to attribute at least seventy-six, not
seventy-five, additional card numbers to Delima in order to apply
the fourteen-level enhancement under U.S.S.G. § 2B1.1(b)(1)(H).
Moreover, seventy-six is only the correct figure if we accept the
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district court's finding, which defense counsel failed to contest
at sentencing, that 1,025 card numbers were attributable to the
conspiracy in March 2015, even though Fasulo testified that there
were "approximately 1,024" March 2015 numbers. However, these
discrepancies -- which cumulatively account for only two card
numbers -- do not amount to prejudicial error because the district
court stated that, based on the evidence of Delima's prior personal
involvement in credit card fraud, Delima was responsible for
"probably hundreds" of numbers in addition to the 1,025 numbers
that the district court attributed to the conspiracy in March
2015.7
Delima also argues that some of the card numbers
recovered from the March 2015 search may have been fabricated.
Not only is there a complete lack of evidence to support this
assertion, but the district court also reasonably relied on
affirmative evidence of the card numbers' genuineness. That
evidence included the fact that the conspirators repeatedly
purchased the numbers from the same source without complaint, and
the fact that the affected banks checked approximately half of the
recovered numbers and confirmed that all of those numbers were
associated with real accounts. The district court reasonably
7 Moreover, the district court noted that it would have
given the same sentence even if it had attributed only 1,025
numbers to Delima.
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reached the conclusion that the card numbers recovered from the
March 2015 seizure were genuine.
2. Role Enhancement
We review the district court's determination that Delima
was a "manager or supervisor" of the conspiracy for clear error.
United States v. Garcia-Hernandez, 659 F.3d 108, 114 (1st Cir.
2011). U.S.S.G. § 3B1.1(b) provides for a three-level enhancement
"[i]f the defendant was a manager or supervisor (but not an
organizer or leader) and the criminal activity involved five or
more participants or was otherwise extensive." A court applying
this enhancement must make two findings: first, "that the
underlying criminal activity involved five or more participants or
was otherwise extensive," and second, "that the defendant, when
committing the offense, managed, superintended, or exercised
hegemony over at least one other participant." United States v.
Nuñez, 840 F.3d 1, 5 (1st Cir. 2016), cert. denied, 137 S. Ct.
1126 (2017).
Delima does not challenge the district court's finding
that the conspiracy involved five or more participants. His
challenge focuses instead on the extent of Delima's authority over
other participants in the conspiracy.
Despite Delima's attempts to downplay his role, the
district court had sufficient evidence to find that Delima
exercised significant authority over his coconspirators.
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Wiretapped calls evidenced Delima's authority to make operational
and strategic decisions concerning the conspiracy, including
decisions regarding how many card numbers to order, when to acquire
vehicles to carry out the scheme, where to send lower-ranking
personnel, and who to recruit to make purchases. As such, it was
not clear error for the district court to conclude that Delima
"managed, superintended, or exercised hegemony over at least one
other participant" in the conspiracy, Nuñez, 840 F.3d at 5, and
consequently that he was a "manager or organizer" under § 3B1.1(b).
3. Substantive Reasonableness of the Seventy-Five-
Month Sentence
Finally, Delima challenges his seventy-five-month
sentence on substantive reasonableness grounds. Because that
sentence is within the Guidelines range, Delima "bears the 'heavy
burden' of marshaling 'fairly powerful mitigating reasons and
persuad[ing] us that the district judge was unreasonable.'" United
States v. Carpenter, 781 F.3d 599, 622 (1st Cir. 2015) (quoting
United States v. Madera–Ortiz, 637 F.3d 26, 30 (1st Cir. 2011)).
Delima makes the unpersuasive argument that he should
have been granted a downward variance because of the disparity
between the actual losses caused by the conspiracy and the
foreseeable losses attributed to him. As we noted above, the
district court's reasonable calculation of the loss amount
properly focused on intended –- not just actual -- losses
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associated with the conspiracy. Actual losses were lower than
intended losses because federal agents seized the conspirators'
equipment and inventory, preventing the conspirators from
profiting from the remaining numbers. That does not mitigate the
severity of Delima's criminal conduct.
Moreover, the district court identified several
aggravating factors that justified imposing a sentence at the high
end of the Guidelines range: the conspiracy was "broad-ranging"
and crossed state lines; Delima had been convicted of a number of
crimes in the past, including robbery and counterfeiting currency;
Delima dove right into the credit card scheme just months after
the conclusion of his supervised-release term; the conspiracy
caused significant, "far-ranging" harm to Maine residents,
including banks, credit card holders, and merchants; and the
conspiracy "was only stopped fortuitously" by the March 2015
apartment raid. These factors provided the district court with "a
plausible sentencing rationale," which it used to arrive at a
"defensible result." Reyes-Rivera, 812 F.3d at 89 (quoting Martin,
520 F.3d at 96). Delima's sentence was not substantively
unreasonable.
III. Conclusion
Delima's conviction and sentence are affirmed.
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