United States v. Lewis , 312 F. App'x 515 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4893
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON A. LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:06-cr-00384-RJC)
Submitted: July 11, 2008 Decided: August 19, 2008
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
S. Frederick Winiker, III, WINIKER LAW FIRM, PLLC, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason A. Lewis was convicted by a jury of one count of
conspiracy to commit aggravated identity theft, access device
fraud, mail fraud, and bank fraud, in violation of 18 U.S.C. § 371(2000) (Count One); eight counts of aggravated identity theft, in
violation of 18 U.S.C. §§ 2, 1028(a)(1) (2000) (Counts Two - Nine);
one count of access device fraud, in violation of 18 U.S.C. §§ 2,
1029(a)(2) (2000) (Count Ten); one count of mail fraud, in
violation of 18 U.S.C. § 1341 (2000) (Count Eleven); and seven
counts of bank fraud, in violation of 18 U.S.C. §§ 2, 1344 (2000)
(Counts Twelve - Eighteen). He appeals his sentence. We affirm.
In the presentence report (PSR), the probation officer
grouped Counts One and Ten through Eighteen pursuant to U.S.
Sentencing Guidelines Manual (USSG) § 3D1.2(d) (2006). To
determine the amount of loss attributable to Lewis, the probation
officer used the $27,000 daily credit limit on the fraudulent debit
card for each of the six days Lewis possessed the card, for a total
of $162,000 as intended loss. The PSR recommended a base offense
level of seven pursuant to § 2B1.1(a)(1); a ten-level enhancement
pursuant to § 2B1.1(b)(1)(F) based on the intended loss of
$162,000; a two-level enhancement pursuant to § 3B1.1(c) because
Lewis was the organizer or leader of these offenses; and other
enhancements not in dispute on appeal. The total offense level was
twenty-five, which combined with Lewis’ criminal history category
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of I yielded a sentencing range for the grouped counts of fifty-
seven to seventy-one months. The Guidelines sentence on Counts Two
through Nine was two years of imprisonment that could run
concurrently with each other but must run consecutively to the
sentence on the grouped counts.
Lewis objected to the intended loss calculation. He
contended that the loss should be limited to the amount obtained or
that he attempted to obtain, which was between $5000 and $10,000,
which yielded only a two-level enhancement. He also asserted that
the use of the credit limit of the card multiplied by the six days
he possessed the card was excessive, as the indictment charged
actions related to the card on only two days. Lewis also objected
to the enhancement for his role in the offense, asserting that he
and his co-defendant acted together with neither being a leader.
At sentencing the district court sustained Lewis’ objection to an
enhancement for obstruction of justice, which reduced his offense
level on the grouped counts to twenty-three and reduced the
Guidelines range to forty-six to fifty-seven months. The court
overruled all other objections to the PSR and sentenced Lewis to
concurrent fifty-seven-month terms of imprisonment on Counts One
and Ten through Eighteen and twenty-four months on Counts Two
through Nine, concurrent with each other but consecutive to the
sentence on counts One and Ten through Eighteen, for a total
sentence of eighty-one months of imprisonment, three years of
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supervised release, an $1800 special assessment, and restitution of
$1410.88.
Lewis first argues that the district court erroneously
enhanced his offense level by two levels for holding a leadership
role. The district court’s determination that the defendant
warrants a sentence enhancement is reviewed for clear error.
United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002).
“Leadership over only one other participant is sufficient as long
as there is some control exercised.” United States v. Rashwan, 328
F.3d 160, 166 (4th Cir. 2003). Our review of the record leads us
to conclude that the district court did not err in imposing the
enhancement for a leadership role.
Lewis also argues that the district court erred in
determining the intended loss amount used to calculate his offense
level. He argues that use of the daily credit limit of the debit
card as the intended loss was not supported by the record, and that
imposition of a ten-level enhancement as a result of using this
amount does not adequately take into account the factors in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2008). This court reviews de
novo the district court’s legal interpretation of the term “loss”
as used in the Sentencing Guidelines. United States v. Castner, 50
F.3d 1267, 1274 (4th Cir. 1995). The district court’s
determination of the amount of loss is a factual matter reviewed
for clear error. Id. Enhancements under § 2B1.1(b) are determined
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by the amount of loss suffered as a result of the fraud. The
amount of loss is the greater of the actual loss or the intended
loss. USSG § 2B1.1, comment. (n.3(A)). The intended loss amount
may be used, “even if this exceeds the amount of loss actually
possible, or likely to occur, as a result of the defendant’s
conduct.” United States v. Miller, 316 F.3d 495, 501-03 (4th Cir.
2003).
When the loss must be estimated, “the court need only
make a reasonable estimate of the loss.” USSG § 2B1.1, comment.
(n.3(C)). In offenses involving unauthorized access devices, other
than telecommunications devices, the loss is not less than $500 per
access device. USSG § 2B1.1, comment. (n.3(F)(I)). The Government
argues that the district court properly used the daily credit limit
for the debit card to determine the intended loss, citing decisions
from three circuits that approved this application of the
Guideline. See United States v. Manoocher Nosrati-Shamloo, 255
F.3d 1290, 1291-92 (11th Cir. 2001); United States v. Egemonye, 62
F.3d 425, 428-29 (1st Cir. 1995); United States v. Sowels, 998 F.2d
249, 251 (5th Cir. 1993). We find this reasoning persuasive, and
conclude that the district court did not clearly err in using the
daily credit limit multiplied by the number of days Lewis possessed
the debit card as an estimate of intended loss.
Lewis’ second argument concerning the amount of loss is
also without merit. Although it is not clearly articulated, he
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apparently argues that in imposing a sentence based on the ten-
level enhancement for amount of loss, the district court did not
adequately consider the § 3553(a) factors. We review a sentence
for reasonableness, applying an abuse of discretion standard.
Gall v. United States, 128 S. Ct. 586, 597 (2007). As discussed
above, Lewis’ Guidelines range was correctly calculated, and the
record reveals that the district court explicitly stated that it
considered the § 3553(a) factors, and explained its reasons for
selecting the sentence imposed. Lewis’ sentence is thus without
procedural defect. This court presumes that a sentence imposed
within the properly calculated Guidelines range is reasonable.
United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v.
United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding
presumption of reasonableness for within-Guidelines sentence). The
record contains nothing that indicates the district court abused
its discretion in selecting the sentence.
Accordingly, we affirm Lewis’ sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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