United States v. Angela Ferdinand ( 2013 )

Case: 12-14081 Date Filed: 04/17/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-14081
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20088-JEM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGELA FERDINAND,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 17, 2013)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Pursuant to a plea agreement, Angela Ferdinand pled guilty to three counts
of a seven-count indictment: Count 1, conspiracy to commit credit card fraud, in
violation of 18 U.S.C. § 1029(b)(2); Count 2, credit card fraud, in violation of 18
U.S.C. § 1029(a)(2); and Count 4, aggravated identity theft, in violation of 18
U.S.C. § 1028A(a)(1). And the District Court sentenced her to concurrent prison
terms of 24 months on Counts 1 and 2 and a consecutive 24-months’ term on
Count 4. She now appeals her sentences.
Ferdinand argues that the District Court committed “plain error” by
enhancing the base offense level for credit card fraud by two levels for identity
theft and erred in calculating the amount of loss associated with the fraud. We find
no plain in error the court’s two-level enhancement. And we find no error in its
calculation of the loss. Ferdinand’s sentences are accordingly affirmed.
We begin our assessment of Ferdinand’s arguments with a brief description
of her criminal activity. Ferdinand participated in a conspiracy to commit credit
card fraud. The conspirators acquired personal information about the victims and
used it to obtain multiple credit cards. Ferdinand made calls to credit card
companies and arranged for the companies to send replacement cards to addresses
the conspirators, including Ferdinand, used to receive mail. The conspirators then
used the cards to purchase goods and obtain cash. The sum total of fraudulent
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purchases and cash withdrawals was $129,202. Ferdinand shared with her co-
conspirators what the fraud yielded.
The District Court grouped Counts 1 and 2 to calculate the guideline
sentence range for those counts; it then added the mandatory term (24 months’
imprisonment) called for by the Court 4 offense. The court determined the
sentence range for Counts 1 and 2 this way. U.S.S.G. § 2B1.1(a)(2) provided the
base offense level of 6. The court enhanced that level by two levels pursuant to §
2B1.1(b)(11)(C)(i) for the use of identity theft and 10 levels pursuant to
§2B1.1(b)(1)(F) for losses exceeding $120,000. It then reduced that total of 18 by
three levels under § 3E1.1 for acceptance of responsibility, for an adjusted offense
level of 15. That total coupled with a criminal history category of III yielded a
sentence range for Counts 1 and 2 of 24-30 months imprisonment; that added to
the 24 months on Count 4, resulted in a sentence range of 48-54 months’
imprisonment (24-30 months on Counts 1 and 2 plus and 24 months on Count 4).
The court then imposed the sentences indicated above.
The District Court erred in enhancing the base offense level for Counts 1 and
2 under § 2B1.1(b)(11)(C)(i). Application Note 2 to U.S.S.G. § 2B1.6 prohibits
enhancements to related offenses when the defendant is separately convicted for
identity theft. And the error is plain. Under the plain error doctrine, to obtain
relief Ferdinand must show in addition that the error affects her substantial rights
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and seriously affects the fairness, integrity, or public reputation of judicial
proceedings. United States v. Snipes, 611 F.3d 855, 867 n.7 (11th Cir. 2010). As a
general matter, to affect substantial rights, the error must have been prejudicial;
that is, it must have affected the outcome of the proceedings. United States v.
Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005).
In this case, we are not persuaded that the error affected Ferdinand’s
substantial rights—that she would have received a different sentence had the
District Court omitted the two-level § 2B1.1(b)(11)(C)(i) enhancement for identity
theft. Rodriguez, 398 F.3d at 1300. We say this because, at the sentencing
hearing, in denying Ferdinand’s request for a two-level minor role adjustment of
her offense level (for Counts 1 and 2), the court indicated that she would receive
the same sentence whether or not it made the adjustment. So, it is absolutely
unclear what sentence the court would have imposed had it eliminated the two
level § 2B1.1(b)(11)(C)(i) enhancement. That aside, there are no indications at all
that affirming her sentences on Counts 1 and 2 will affect the “fairness, integrity,
or public reputation of the judicial proceeding.” Ferdinand’s plain error argument
accordingly fails. We turn, then, to her argument about the loss calculation, which,
if clearly erroneous, would have lowered the loss calculation under § 2B1.1(b)(1).
We review the District Court’s calculation of the amount of loss—a factual
finding—for clear error. United States v. Cabrera, 172 F.3d 1287, 1292 (11th Cir.
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1999). Clear error exists when this Court is “left with a definite and firm
conviction that a mistake has been made.” United States v. Almedina, 686 F.3d
1312, 1315 (11th Cir.), cert. denied, 133 S. Ct. 629 (2012). The amount of loss is
the greater of actual loss or intended loss, and includes amounts the defendant
“knew or, under the circumstances, reasonably should have known [were] potential
loss[es] of the offense.” U.S.S.G. § 2B1.1, comment. (n.3). The calculation of
loss does not have to be rigorously precise, only reasonable given the information
available. Cabrera, 172 F.3d at 1292.
The facts before the court at sentencing established that Ferdinand ordered
unauthorized cards with information provided by her co-conspirators, had the cards
sent to her residence address, or her father’s address, or a co-conspirator’s, and
engaged in fraudulent transactions with the cards. Hence, the court found that she
was involved in the overall conspiracy and thus was accountable for losses the
conspiracy caused the four victims, in excess of $120,000. Her argument that the
court erred in fixing the amount of loss therefore fails.
AFFIRMED.
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