United States v. Victor Escamilla , 509 F. App'x 254 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4233
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR LOPEZ ESCAMILLA, a/k/a Mango Chupado, a/k/a Ventura,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:11-cr-00303-WDQ-1)
Submitted: January 18, 2013 Decided: February 12, 2013
Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
A. D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Tamera L. Fine, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor Lopez Escamilla was sentenced to ninety-seven
months’ imprisonment after being found guilty by a jury of one
count of fraud in connection with identification documents, in
violation of 18 U.S.C. § 1028(a)(2), (c)(1) (2006), one count of
social security number fraud, in violation of 42 U.S.C.
§ 408(a)(7)(C) (2006), and one count of fraud and misuse of
immigration documents and aiding and abetting, in violation of
18 U.S.C. §§ 1546, 2 (2006). He now appeals, challenging his
sentence, contending that the district court erred in computing
his total offense level under the sentencing guidelines.
Finding no error, we affirm.
In determining whether the district court has properly
applied the Guidelines, this Court reviews its interpretation of
the Guidelines de novo and its factual findings for clear error.
United States v. Quinn, 359 F.3d 666, 679 (4th Cir. 2004).
Accordingly, the meaning of “loss” under the Guidelines is
reviewed de novo, while the amount of loss is reviewed for clear
error. See United States v. Wells, 163 F.3d 889, 900 (4th Cir.
1998).
Escamilla first challenges the district court’s
application of a ten-level adjustment for loss. U.S. Sentencing
Guidelines Manual (“USSG”) § 2B1.1(b)(1) (2011) provides for a
ten-level increase where the loss from the offense was between
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$120,000 and $200,000. Loss can be measured by actual or
intended loss, or in limited circumstances, by gain. USSG §
2B1.1 cmt. n.3(A), (B). Application Note 3(B) of § 2B1.1
provides: “The court shall use the gain that resulted from the
offense as an alternative measure of loss only if there is a
loss but it reasonably cannot be determined.” Application Note
3(C) of § 2B1.1 provides that the court need only make a
reasonable estimate of the loss, based on the available
information. It notes: “The sentencing judge is in a unique
position to assess the evidence and estimate the loss based upon
that evidence. For this reason, the court’s loss determination
is entitled to appropriate deference.” USSG § 2B1.1 cmt.
n.3(C).
Escamilla contends that because the Government offered
no proof of actual economic loss, there is no loss, and
therefore that gain cannot properly be used as an alternative
measure. We reject this contention. Immigration document fraud
causes actual economic loss, to the persons whose information is
used on the documents, to employers who mistakenly rely on the
counterfeit documents, and to the United States in protecting
its borders and citizens. While these losses may be difficult
to measure, that they do not exist simply does not follow.
Accordingly, the district court appropriately used gains as an
alternative measure to loss.
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We also find no clear error with the district court’s
loss calculation. The district court reasonably estimated the
amount of loss, based on the available information.
Accordingly, the district court properly applied the ten-level
loss adjustment.
Escamilla next challenges the district court’s
application of a six-level adjustment for an offense involving
250 or more victims. USSG § 2B1.1(b)(2) provides: “If the
offense . . . involved 250 or more victims, increase by 6
levels.” Application Note 1 of § 2B1.1 provides that a “victim”
means any person who has suffered actual loss or sustained
bodily injury as a result of the offense. However, Application
Note 4(E) of § 2B1.1 provides that, in cases involving means of
identification, “victim” can also mean “any individual whose
means of identification was used unlawfully or without
authority.”
Escamilla contends first that there were no victims to
his offenses, and alternatively, that the district court relied
on an improper methodology in determining the number of victims.
First, Escamilla contends that, even though the fraudulent
identification documents he manufactured and sold used real
information from various individuals without their permission,
none of those individuals are victims because they did not
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suffer actual economic loss. In light of Application Note 4(E),
this contention fails.
Escamilla also challenges the district court’s
methodology for determining the number of victims. We find no
clear error in the district court’s calculation of over 250
victims. The district court reasonably relied on the available
evidence to make this factual determination. The district court
therefore properly applied the six-level, victim-number
adjustment.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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