United States v. Klouse , 210 F. App'x 398 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 15, 2006
Charles R. Fulbruge III
Clerk
No. 06-10344
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEBORAH KAY KLOUSE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(4:05-CR-173)
Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
At issue are: whether Deborah Kay Klouse’s plea-agreement for
use of unauthorized access devices had a sufficient factual basis;
and whether the district court erred in its loss-calculation
method, including whether its denial of Klouse’s corresponding
subpoena request violated her Sixth Amendment right to compulsory
process. AFFIRMED.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
While employed by American Airlines (AA), Klouse became aware
of unused “Travel Authorization Certificates” (certificates),
typically issued to travel agencies for promotional purposes.
Klouse used them to have travel tickets fraudulently issued for
free interstate and international airline travel on AA flights for
friends and family members. Between February 2001 and January
2004, Klouse provided 26 individuals with airline tickets, many of
which were for first-class travel, for at least 88 different AA
flights.
Klouse pleaded guilty to use of unauthorized access devices,
in violation of 18 U.S.C. § 1029(a)(2). Based on the market value
of the airline tickets (using the lowest applicable fare), the
Presentence Investigation Report (PSR) determined AA’s total loss
to be $166,603.75 and recommended restitution in this amount.
Klouse filed objections to the PSR, contending, inter alia, the
loss calculation should be based on AA’s internal valuation of the
certificates for tax-and-insurance purposes. Along that line,
Klouse sought to subpoena AA to provide information regarding this
valuation. The request was denied by the district court as seeking
irrelevant information and being unduly burdensome.
At sentencing, in determining the advisory Guidelines
sentencing range, the district court: overruled Klouse’s PSR
objections; adopted the PSR’s loss calculation; and used that
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calculation to impose a seven-level amount-of-loss increase,
pursuant to U.S.S.G. § 2F1.1(b)(1)(H) (2000). After other
adjustments, Klouse’s advisory sentencing range was 15-21 months.
She was sentenced, inter alia, to 15-months imprisonment and
restitution in the amount of $166,603.75.
II.
A.
“Before entering judgment on a guilty plea, the court must
determine that there is a factual basis for the plea.” FED. R.
CRIM. P. 11(b)(3). Klouse did not, however, challenge the
sufficiency of the factual basis in district court. Instead, she
raises the issue for the first time on appeal. Therefore, our
review is only for plain error. E.g., United States v. Palmer, 456
F.3d 484, 489 (5th Cir. 2006). Under such review, Klouse must show
a clear or obvious error that affected her substantial rights.
E.g., United States v. Alvarado-Santilano, 434 F.3d 794, 795 (5th
Cir. 2005), cert. denied, 126 S. Ct. 1812 (2006). Generally, plain
error will be corrected only when it “has a serious effect on the
fairness, integrity, or public reputation of judicial proceedings”.
Id. (citation omitted).
Klouse maintains the factual basis was insufficient because
the certificates are neither specifically enumerated in the
statutory definition of “access device” nor subject to access-
device status as an “other means of account access”. 18 U.S.C. §
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1029(e)(1). Further, she contends the certificates, even if
assumed arguendo to be “access devices”, are not “unauthorized”,
pursuant to 18 U.S.C. § 1029(e)(3).
Our court has not previously addressed whether such
certificates qualify as “unauthorized access devices” for the
purposes of § 1029(a)(2). Nonetheless, we have recognized the
scope of the statutory definition of “access device” may encompass
devices not specifically enumerated. United States v. Brewer, 835
F.2d 550, 553 (5th Cir. 1987) (recognizing the definition is “broad
enough to encompass technological advances”, our court “read long
distance access codes into the [definition]” (quotation omitted)).
In addition, “misuse of [an access device] serve[s] as further
evidence of an unauthorized access device”. United States v.
Inman, 411 F.3d 591, 594 (5th Cir. 2005) (emphasis added)
(examining whether access device was “unauthorized” under §
1029(e)(3)’s “obtained with intent to defraud” prong). Klouse does
not contend she did not misuse the certificates.
In short, the factual basis of Klouse’s plea-agreement does
not give rise to a “clear” or “obvious” error. Therefore, under
the applicable plain-error standard of review, this claim fails.
B.
1.
Klouse also challenges the district court’s loss-calculation
method for the purposes of both the amount-of-loss enhancement and
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restitution. The court used the market value of the airlines
tickets.
A challenge to the method of calculation, which implicates a
Guidelines application, is reviewed de novo. E.g., United States
v. Randall, 157 F.3d 328, 330 (5th Cir. 1998). The propriety of a
restitution award is reviewed for abuse of discretion. E.g.,
United States v. Onyiego, 286 F.3d 249, 256 (5th Cir.), cert.
denied, 537 U.S. 910 (2002).
Klouse maintains the loss should be based on AA’s internal
tax-and-insurance valuation of the certificates. “Ordinarily,
[however,] when property is taken ... the loss is the fair market
value of the particular property at issue”. U.S.S.G. § 2B1.1 cmt.
n.2 (2000) (emphasis added); see also Onyiego, 286 F.3d at 255.
Where, as here, market value is difficult to determine, a
sentencing court may use “other reasonable means to ascertain the
level of loss to the victim”. Onyiego, 286 F.3d at 256 (citation
omitted); see also U.S.S.G. § 2F1.1 cmt. n.9 (2000) (“[t]he court
need only make a reasonable estimate of the loss, given the
available information”). The district court did not err in its
loss-calculation method.
2.
Concomitantly, because the loss-calculation method did not
constitute error, the denial of Klouse’s subpoena request, which
sought information regarding an alternative loss-calculation
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method, did not violate her Sixth Amendment right to compulsory
process. United States v. Soape, 169 F.3d 257, 268 (5th Cir.)
(“when requesting a ... subpoena ..., a defendant has the duty to
demonstrate the necessity of the [information sought]”), cert.
denied, 527 U.S. 1011 (1999).
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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