United States v. Maite Hernandez , 522 F. App'x 542 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14252
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20070-PAS-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAITE HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 14, 2013)
Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Maite Hernandez appeals her 51-month sentence after pleading guilty to
conspiracy to commit access device fraud, in violation of 18 U.S.C. § 1029(a)(4),
possession of device-making equipment, in violation of 18 U.S.C. §§ 2 and
1029(a)(4), and two counts of aggravated identity theft, in violation of 18 U.S.C.
§§ 2 and 1028A(a)(1). Hernandez was involved in a conspiracy with her live-in
boyfriend and her brother to skim credit card numbers and transfer them to
fraudulent credit cards. She admitted to knowing about everything in the
conspiracy and to benefiting from some of the fraudulent purchases. She was held
accountable for the entire loss amount of more than $160,000 and for all 180
victims. On appeal, she asserts that the district court committed clear error in
denying her request for a minor-role reduction, as her actual role, when measured
against the relevant conduct attributed to her, was minor. She argues that she was
held accountable for the conduct of her co-conspirators when her role did not
encompass their conduct and that her participation was not essential to the success
of the conspiracy. After a thorough review of the record, we affirm.
A district court’s determination of the defendant’s role in the offense is
reviewed for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc). When the district court’s decision is supported by the record and
is not a misapplication of the Guidelines, we rarely conclude that the determination
was clearly erroneous. Id. at 945. We find clear error only if “we are left with a
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definite and firm conviction that a mistake has been committed.” United States v.
Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005) (internal quotation marks
omitted).
If the defendant was a “minor participant” in any criminal activity, her
offense level is reduced by two levels. U.S.S.G. § 3B1.2(b). A minor participant
is one “who is less culpable than most other participants, but whose role could not
be described as minimal.” Id. § 3B1.2, comment. (n.5).
In determining whether a mitigating-role adjustment applies, the district
court should consider two principles: “first, the defendant’s role in the relevant
conduct for which she has been held accountable at sentencing, and, second, her
role as compared to that of other participants in her relevant conduct.” De Varon,
175 F.3d at 940. As to the first prong of this analysis, the court must assess the
defendant’s role in relation to all of the relevant conduct that was attributed to her
under U.S.S.G. § 1B1.3. Id. at 940-41. “Only if the defendant can establish that
she played a relatively minor role in the conduct for which she has already been
held accountable—not a minor role in any larger criminal conspiracy—should the
district court grant a downward adjustment for minor role in the offense.” Id.
at 944.
As to the second prong of the analysis, the court should compare the
defendant to the other participants only to the extent that the others (1) “are
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identifiable or discernable from the evidence,” and (2) “were involved in the
relevant conduct attributed to the defendant.” Id. The defendant must show that
she “was less culpable than most other participants in her relevant conduct” in
order to receive a minor-role reduction. Id. However, “a defendant is not
automatically entitled to a minor role adjustment merely because she was
somewhat less culpable than the other discernable participants.” United States v.
Bernal-Benitez, 594 F.3d 1303, 1320-21 (11th Cir. 2010) (citing De Varon, 175
F.3d at 939); see also United States v. Zaccardi, 924 F.2d 201, 203 (11th Cir.
1991) (“It is entirely possible for conspiracies to exist in which there are no minor
participants . . . .”).
The district court did not clearly error in denying Hernandez’s request for a
minor-role adjustment. Although Hernandez asserts that she was less culpable
than the other members of the conspiracy, that fact alone does not entitle her to a
minor-role adjustment. See Bernal-Benitez, 594 F.3d at 1320-21; Zaccardi, 924
F.2d at 203. Furthermore, evidence before the district court indicated that
Hernandez was not only aware of the scope of the fraudulent activity, but she also
participated with the co-conspirators by checking on the status of the scheme,
scheduled and attended meetings to exchange the skimming devices, and possessed
a laptop computer that had the skimming device attached to it. Hernandez also
accompanied a co-conspirator to make purchases and personally benefited from
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some of these purchases. Finally, as the district court found, Hernandez was a
willing participant in the conspiracy over an extended period of time.
In light of the deference we owe to the district court, we cannot conclude
that the district court clearly erred in determining that Hernandez was not eligible
for the minor-role reduction. See Crawford, 407 F.3d at 1177.
AFFIRMED.
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