United States v. Joanne Tragas ( 2013 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0245p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 11-1637
v.
,
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Defendant-Appellant. -
JOANNE TRAGAS,
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Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 1:09-cr-20023-10—Thomas L. Ludington, District Judge.
Argued: August 2, 2013
Decided and Filed: August 23, 2013
Before: CLAY, SUTTON, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Erik W. Scharf, SCHARF APPELLATE GROUP, Miami, Florida, for
Appellant. Janet Parker, UNITED STATES ATTORNEY’S OFFICE, Bay City,
Michigan, for Appellee. ON BRIEF: Erik W. Scharf, Wayne R. Atkins, SCHARF
APPELLATE GROUP, Miami, Florida, for Appellant. Janet Parker, UNITED STATES
ATTORNEY’S OFFICE, Bay City, Michigan, for Appellee.
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OPINION
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CLAY, Circuit Judge. Defendant Joanne Tragas was indicted on numerous
charges relating to her participation in an international credit and debit card fraud
conspiracy. She was convicted by a jury and sentenced to 300 months’ imprisonment.
On appeal, Defendant challenges her conviction by arguing that the prosecutor
improperly read certain evidence aloud, that the district court should have given the jury
a specific unanimity instruction, that her Travel Act convictions were not supported by
1
No. 11-1637 United States v. Tragas Page 2
sufficient evidence, and that her Vienna Convention rights were violated. She further
argues that the district court improperly calculated her sentence by using an incorrect
version of the Sentencing Guidelines in violation of the Ex Post Facto Clause. We reject
Defendant’s challenges to her conviction but agree that the district court used an
incorrect version of the Guidelines. Accordingly, we AFFIRM Defendant’s
convictions, VACATE her sentence, and REMAND for resentencing.
BACKGROUND
The evidence at Defendant’s trial established that she acted as a middleman
between overseas suppliers of stolen credit and debit card information and street-level
users of that information. Defendant’s suppliers obtained the information that is
typically encoded in the magnetic strip on the back of credit and debit cards and sold the
information to her using international wire transfers. After receiving the stolen data,
Defendant re-sold the information to her co-conspirators in the United States.
Defendant’s customers, many of whom later became her co-defendants, used machines
to encode the information they received from Defendant onto the magnetic strips of
actual plastic cards. Any card with a magnetic strip could be and was used, including gift
cards, hotel key cards, and actual credit cards. Once encoded, these cards contained the
same information that the legitimate cards contained.
Thus armed with these “clones” of legitimate credit and debit cards, the
conspirators purchased various kinds of consumer goods, including high-end electronics,
as well as bona fide gift cards. In this way, the conspirators could quickly convert stolen
credit card information into cash or easily transferable property. Defendant’s primary
customers in Detroit were twin brothers Dion and Dionte Hunter, who purchased stolen
credit and debit card information from Defendant and then either used it themselves or
sold it to others. Defendant and the Hunters never met in person, but they communicated
extensively via online chat services, which were variously described as instant messages
or “ICQ’s.” Police discovered stored records of these chat conversations on a laptop
computer belonging to the Hunters.
No. 11-1637 United States v. Tragas Page 3
The government introduced the transcripts of these chat conversations into
evidence, and the prosecutor, together with Secret Service Agent Robert Kuykendall,
read many of the conversations aloud to the jury. Although the parties to these
communications did not use names, a picture of Defendant was the profile picture
associated with the ICQ account-holder that supplied the Hunters with stolen data.
Furthermore, Defendant was shown to have made purchases with the gift card
information exchanged during the ICQ conversations with the Hunters. Circumstantial
evidence also indicated that the individual conversing with the Hunters and supplying
them with stolen information was in fact Defendant. For example, Defendant purchased
a house in Florida after the Hunters’ supplier talked of buying and furnishing a new
beach house in Florida.
These conversations revealed the scope and nature of Defendant’s role in the
conspiracy. She sold credit and debit card information to the Hunters in exchange for
payment in a variety of different forms, including cash deposits into her bank account,
wire transfers, and information that allowed her to use the genuine gift cards that the
Hunters and others purchased with stolen card data. Defendant used the money she
received to pay her overseas suppliers, and she sometimes directed the Hunters to wire
money directly in order to facilitate these payments. Defendant purchased and re-sold
the stolen personal information of hundreds of credit and debit card users, and their
financial institutions suffered losses of approximately $2.18 million as a result.
Defendant was arrested in June 2009 and was ultimately charged in a superseding
indictment with one count of conspiracy to commit various access device fraud offenses,
in violation of 18 U.S.C. § 1029(b); seven counts of aiding and abetting unlawful activity
under the Travel Act, in violation of 18 U.S.C. § 1952(a); one count of bank fraud, in
violation of 18 U.S.C. § 1344; and two counts of wire fraud, in violation of 18 U.S.C.
§ 1343. A jury convicted Defendant on all counts. A presentence report was prepared,
and Defendant filed numerous objections to its findings and recommendations.
However, at the sentencing hearing on April 27, 2011, Defendant specifically withdrew
all her objections to the presentence report. Based on a recommended Sentencing
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Guidelines range of 292–365 months in prison, the district court sentenced Defendant
to a total term of imprisonment of 300 months, to be followed by a five-year term of
supervised release.
DISCUSSION
I. Reading Evidence Aloud
Defendant first argues that a new trial is warranted because the prosecutor,
together with Agent Kuykendall, read to the jury transcripts of online chat conversations
between Defendant and her co-conspirators. The exact basis for Defendant’s objection
to this evidence is difficult to pin down, but for the reasons that follow, we find nothing
improper in the reading aloud of a properly admitted transcript under these
circumstances. Although Defendant’s counsel initially had no objection to the
testimony, he subsequently objected on the ground that reading the documents was
cumulative because the transcripts had already been admitted into evidence. Construing
Defendant’s argument as an evidentiary challenge, we review a district court’s ruling on
the admissibility of evidence for an abuse of discretion. United States v. Yu Qin, 688
F.3d 257, 261 (6th Cir. 2012). If her claim is more akin to an allegation of prosecutorial
misconduct, we review the claim de novo. United States v. Boyd, 640 F.3d 657, 669
(6th Cir. 2011). Under either standard of review, Defendant’s argument fails.
The argument is rather unusual. Defendant does not seem to dispute that the
written communications were properly admitted into evidence under the hearsay
exclusion in Federal Rule of Evidence 801(d)(2). Instead, she argues that merely by
reading the transcripts aloud, the prosecutor and the case agent conducted a “theatrical
performance” akin to a re-enactment. Defendant argues that the prosecutor and Agent
Kuykendall essentially play-acted the chat conversations, with the prosecutor
“performing” the role of Defendant, and Kuykendall playing various co-conspirators.
In so doing, Defendant argues, the prosecutor interpreted and characterized the otherwise
properly admitted documentary evidence and portrayed Defendant’s written
communications in a way that telegraphed to the jury that she was guilty.
No. 11-1637 United States v. Tragas Page 5
However, Defendant offers no support for her proposition that the mere reading
aloud of previously admitted documentary evidence is improper or prejudicial. On the
contrary, there is nothing inherently problematic about reading such evidence to the jury.
See Bank of Nova Scotia v. United States, 487 U.S. 250, 262–63 (1988) (finding no
prejudice to a defendant where two IRS agents read in tandem from a transcript before
a grand jury); United States v. Chambers, 441 F.3d 438, 456–57 (6th Cir. 2006) (finding
no unfair prejudice where a police officer read portions of a defendant’s previously
admitted diary to the jury). As long as the evidence itself is properly admitted pursuant
to the Rules of Evidence and does not run afoul of other safeguards like the
Confrontation Clause, we do not see how a defendant could be prejudiced if the evidence
is read aloud to the jury.
Although Defendant decries what she asserts was a “remarkable departure from
traditional American trial practice,” she points to nothing in the record that would
suggest that the prosecutor and case agent did anything other than read the transcripts
aloud. A staged performance or re-enactment of an event by a prosecutor would
undoubtedly be problematic insofar as it strayed from the direct evidence introduced at
trial or reflected the prosecutor’s opinions, although we have approved video re-
enactments in certain circumstances. See, e.g., Persian Galleries, Inc. v.
Transcontinental Ins. Co., 38 F.3d 253, 257–58 (6th Cir. 1994). However, the
prosecutor’s conduct in this case cannot possibly be described as a re-enactment.
Although Defendant points to some minor discrepancies between the reading and the
written text, none of these discrepancies are material, and the jury had copies of the
written transcripts with which to follow along. Nothing in the record indicates that the
prosecutor or Agent Kuykendall “performed” a scene in any meaningful sense. Rather,
they merely read aloud from documents that Defendant concedes were properly admitted
into evidence.
In addition to her broad contention that the prosecutor and the case agent were
doing theater, Defendant raises several specific challenges to the testimony. First, she
asserts that the testimony presented an improper overview or summary. A defendant
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may indeed be prejudiced if a law enforcement officer is able to introduce otherwise
inadmissible evidence by giving an overview of the government’s case at the outset of
the trial, see United States v. Casas, 356 F.3d 104, 119–20 (1st Cir. 2004), but once
again, Defendant does not contend that the chat conversations themselves were
inadmissible. Moreover, Kuykendall cannot be said to have summarized anything;
rather, he was merely reading directly from a transcript that had already been provided
to the jury in written form. Even if Kuykendall had summarized other evidence,
Defendant concedes that the jury was properly instructed regarding summary evidence.
See United States v. Vasilakos, 508 F.3d 401, 412 (6th Cir. 2007); United States v.
Weinstock, 153 F.3d 272, 278 (6th Cir. 1998) (finding no error in admitting a summary
to facilitate the jury’s consideration of previously admitted evidence).
Next, Defendant argues that the prosecutor’s reading of the chat conversations
constitutes impermissible vouching, which occurs when “a prosecutor supports the
credibility of a witness by indicating a personal belief in the witness’s credibility thereby
placing the prestige of the office of the United States Attorney behind that witness.”
United States v. Trujillo, 376 F.3d 593, 607 (6th Cir. 2004). This seems to be a different
theory to support Defendant’s primary argument that, merely by uttering the words from
a document aloud, a prosecutor imbues the evidence with some sort of magical power.
However, Defendant fails to identify any comments or statements that could be
construed as bolstering or vouching for the evidence, and we find no support for the
proposition that admissible documentary evidence somehow becomes more credible if
the prosecutor reads it aloud.
Finally, Defendant contends that because the prosecutor is not a witness and
cannot be cross-examined, any opinions, testimony, or interpretations of evidence
offered by the prosecutor are prohibited by the Confrontation Clause of the Sixth
Amendment. As with her other arguments, Defendant’s contention fails because she can
point to nothing in the record indicating that the prosecutor actually made any such
statements or verbally interpreted the evidence in any particular way. As for the
transcripts themselves, we note that Defendant’s own statements were properly admitted
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as statements by a party-opponent under Rule 801(d)(2)(A), and the statements by the
Hunters were admitted as co-conspirator statements under Rule 801(d)(2)(E). As co-
conspirator statements made in furtherance of the conspiracy, they were categorically
non-testimonial and also within a “firmly rooted” exception to the hearsay rule. See
United States v. Mooneyham, 473 F.3d 280, 286–87 (6th Cir. 2007) (citing Crawford v.
Washington, 541 U.S. 36, 51 (2004), and Bourjaily v. United States, 483 U.S. 171,
183–84 (1987)). Therefore, the Confrontation Clause does not bar their admission. Id.
at 287. Because we find no inherent problem—constitutional or otherwise—when a
prosecutor and a witness merely read aloud from a properly admitted transcript, we
reject Defendant’s first challenge to her conviction.
II. Specific Unanimity Instruction
The indictment charged Defendant with a conspiracy to “commit an offense or
offenses contrary to 18 U.S.C. § 1029(a)(1), (2), (3), (4), and (5).” (R. 229, at 2.)
Defendant argues that the district court should have instructed the jury to unanimously
determine which, if any, of those five offenses she conspired to commit. Because
Defendant failed to object to the jury instructions or request a specific unanimity
instruction, this claim is reviewed for plain error. United States v. DeJohn, 368 F.3d
533, 540 (6th Cir. 2004). To obtain relief under this standard, Defendant must show that
(1) there was an error (2) that was plain, (3) that affected a substantial right, and
(4) seriously affected the fairness, integrity, or public reputation of the judicial
proceedings. United States v. Martin, 520 F.3d 656, 658 (6th Cir. 2008).
The Sixth Amendment does not expressly require that jury verdicts be
unanimous, but the Supreme Court has long held that jury unanimity is “one of the
indispensable features” of federal criminal trials. Johnson v. Louisiana, 406 U.S. 366,
369–71 (1972) (Powell, J., concurring). In practice, this means that “a jury in a federal
criminal case cannot convict unless it unanimously finds that the Government has proved
each element [of the crime].” Richardson v. United States, 526 U.S. 813, 817 (1999).
For defendants charged with conspiracy, the object offense of the conspiracy is an
element of the crime. See United States v. Caver, 470 F.3d 220, 232 (6th Cir. 2006).
No. 11-1637 United States v. Tragas Page 8
Therefore, where a defendant is charged in a single count with a conspiracy to commit
multiple crimes, the jury must unanimously decide which crime the defendant conspired
to commit. See United States v. Long, 450 F. App’x 457, 460 (6th Cir. 2011); United
States v. Capozzi, 486 F.3d 711, 717–18 (1st Cir. 2007); United States v. Hughes, 310
F.3d 557, 561 (7th Cir. 2002).
The government argues that the indictment alleged a conspiracy to commit a
single offense: access device fraud. In contrast, Defendant argues that she was charged
with conspiring to commit five separate offenses. The statute defines the offenses in
these subsections as follows:
(a) Whoever–
(1) knowingly and with intent to defraud produces, uses,
or traffics in one or more counterfeit access devices;
(2) knowingly and with intent to defraud traffics in or
uses one or more unauthorized access devices during any
one-year period, and by such conduct obtains anything of
value aggregating $1,000 or more during that period;
(3) knowingly and with intent to defraud possesses fifteen
or more devices which are counterfeit or unauthorized
access devices;
(4) knowingly, and with intent to defraud, produces,
traffics in, has control or custody of, or possesses
device-making equipment;
(5) knowingly and with intent to defraud effects
transactions, with 1 or more access devices issued to
another person or persons, to receive payment or any
other thing of value during any 1-year period the
aggregate value of which is equal to or greater than
$1,000 . . .
shall, if the offense affects interstate or foreign commerce, be punished
as provided in subsection (c) of this section.
18 U.S.C. § 1029(a). The district court clearly considered subsections (1)–(5) of the
statute as descriptions of different ways that an individual could commit the single
offense of access device fraud, rather than five distinct offenses.
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We decline to delve into the intricacies of the interpretation of § 1029(a) in this
case because, even if we assume that the district court’s construction was erroneous and
that the error was plain, Defendant cannot satisfy the third prong of the plain error
standard, that the error affected her substantial rights. Martin, 520 F.3d at 658. The
Supreme Court has clearly held that a district court’s failure to instruct the jury as to all
the elements of a crime is not structural error that necessitates a new trial. Neder v.
United States, 527 U.S. 1, 9 (1999). Similarly, a district court’s failure to instruct the
jury that they must unanimously agree on each element of a crime is not structural error,
but instead is subject to harmless-error review. See Murr v. United States, 200 F.3d 895,
906 (6th Cir. 2000).
We find that Defendant’s substantial rights were not affected by any error in the
jury instructions. By finding Defendant guilty of conspiracy, the jury necessarily
concluded that she voluntarily joined the Hunters and their compatriots in creating and
using counterfeit access devices. (See R. 365, at 83 (instructing the jury that it must find
that “the defendant knowingly and voluntarily joined the conspiracy” to convict her on
Count 1).) To properly convict, the jury would have only had to find that Defendant
conspired to commit one of the offenses in § 1029(a)(1)–(5). The evidence that the
conspirators intended to commit at least a violation of subsection (1) is overwhelming.
The evidence more than established that the Hunters and others conspired to
produce and use counterfeit access devices with the intent to defraud in violation of
§ 1029(a)(1). Indeed, they admitted as much in their plea agreements. Numerous co-
conspirators and law enforcement agents testified that members of the conspiracy had
used fraudulently “cloned” cards to make purchases. Gift cards recovered from co-
conspirators were shown to have been re-encoded with fraudulently obtained credit card
information. Each of these would qualify as a “counterfeit access device” within the
meaning of the statute. See 18 U.S.C. § 1029(e)(2). Given the volume of evidence that
Defendant conspired with others to violate at least one of the substantive offenses
defined in § 1029(a), there is no risk that the jury could have failed to unanimously agree
No. 11-1637 United States v. Tragas Page 10
on the object of the conspiracy. Therefore, Defendant’s substantial rights were not
affected, and the elements of plain error are not satisfied.
III. The Travel Act Counts
Defendant argues that the government’s evidence was insufficient to support her
convictions on seven counts of aiding and abetting unlawful activity under the Travel
Act, 18 U.S.C. § 1952(a) (Counts 2–8). When reviewing a criminal conviction for
sufficiency of the evidence, we ask “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia. 443
U.S. 307, 319 (1979). “All reasonable inferences and resolutions of credibility are made
in the jury’s favor.” United States v. Washington, 702 F.3d 886, 891 (6th Cir. 2012).
A convicted defendant bears “a very heavy burden” to show that the government’s
evidence was insufficient. United States v. Kernell, 667 F.3d 746, 756 (6th Cir. 2012).
As is generally the case, circumstantial evidence alone may be sufficient to support a
conviction. Untied States v. Graham, 622 F.3d 445, 448 (6th Cir. 2010).
Where, as here, a defendant does not move for a judgment of acquittal pursuant
to Federal Rule of Criminal Procedure 29, we review the sufficiency of the evidence
only for plain error resulting in a “manifest miscarriage of justice.” United States v.
Frazier, 595 F.3d 304, 306 (6th Cir. 2010). “A miscarriage of justice exists only if the
record is devoid of evidence pointing to guilt.” United States v. Roberge, 565 F.3d 1005,
1008 (6th Cir. 2009) (internal quotation marks omitted).
To prove a violation of § 1952(a), the government was required to establish the
following elements: “(1) that the defendant ‘travels in interstate or foreign commerce’
(2) ‘with intent to . . . promote, manage, establish, carry on, or facilitate the promotion,
management, establishment, or carrying on, of any unlawful activity’ and (3) that the
defendant ‘thereafter performs or attempts to perform’ an act of promotion, management,
establishment, or carrying on of any unlawful activity.” United States v. Burns, 298 F.3d
523, 537 (6th Cir. 2002) (quoting the statute). The government did not allege that
Defendant herself violated the Travel Act by crossing state lines in aid of criminal
No. 11-1637 United States v. Tragas Page 11
activity, but rather that she aided and abetted the interstate travel of the Hunters in
furtherance of the access device fraud scheme. To support aider and abettor liability,
Defendant must have had “general knowledge regarding the activities prohibited under
the [Travel Act] and the intent to assist those activities.” United States v. Hill, 55 F.3d
1197, 1204 (6th Cir. 1995).
Defendant’s only argument that the evidence was insufficient is that the
government did not prove she had knowledge of the Hunters’ interstate travel at the time
she received unlawful money transfers and gift card information. However, Defendant
points to no legal authority to support the proposition that contemporaneous knowledge
of interstate travel is required to establish that a defendant aided or abetted a violation
of the Travel Act. Although most other circuits have held that a Travel Act defendant
need not have specific knowledge of any interstate travel, the Sixth Circuit has held that
a defendant must at least be generally aware of the principal’s interstate travel. See
United States v. Gallo, 763 F.2d 1504, 1521–22 (6th Cir. 1985).1 However, a defendant
need not “know the circumstances of each instance of travel or the identity of each
traveler-participant in a criminal activity.” Id. at 1522.
The evidence at trial established that Defendant was aware that the Hunters
traveled across state lines from their home in Detroit in furtherance of the access device
fraud scheme. Online conversations between Defendant and the Hunters established that
the Hunters wired Defendant money or gave her gift card information as payment for
stolen credit card numbers. Dionte Hunter wired money from Atlanta, Louisville, and
a town just outside Pittsburgh. The government further proved that Defendant used gift
cards to make online purchases and that the gift cards were purchased in Kentucky,
Texas, Ohio, and Pennsylvania.
1
We have acknowledged several times that this rule is likely untenable in light of the Supreme
Court’s decision in United States v. Yermian, 468 U.S. 63 (1984), in which the Court held that a criminal
defendant need not have knowledge of a jurisdictional fact to support liability under a federal statute. Id.at 68–69. However, we need not expressly decide whether Yermian overruled prior Sixth Circuit precedent
because Defendant’s conduct satisfies either test.
No. 11-1637 United States v. Tragas Page 12
Based on Defendant’s responses in her online conversations with the Hunters and
the originating cities of the gift cards and wire transfers, a reasonable jury could have
found that Defendant had knowledge of the Hunters’ interstate travel. Defendant
specifically acknowledged several times that Dionte Hunter was in states other than
Michigan. Most significantly, when Hunter complained that some of the stolen credit
card information had not worked, Defendant explained that he had probably been in a
different state, and she encouraged him to move around to other states. When Hunter
said that he had been having trouble purchasing gift cards in Michigan, Defendant told
him to move to another state like Maryland. Although the evidence was not
overwhelming, it was sufficient to establish that Defendant was generally aware that the
Hunters traveled interstate to facilitate the access device fraud scheme and that she
intended “to assist those activities.” Hill, 55 F.3d at 1204. Therefore, we reject
Defendant’s challenge to her Travel Act convictions.
IV. Vienna Convention
Defendant asserts that under Article 36 of the Vienna Convention, the
government was obligated to inform her of her right to consular access because she is
a citizen of Greece and Canada. However, Defendant acknowledges that this panel is
bound by our decision in United States v. Emuegbunam, 268 F.3d 377 (6th Cir. 2001),
which held that the Vienna Convention does not confer rights on individual criminal
defendants that are enforceable by the federal courts. Id. at 389–90. Defendant
acknowledges that we are bound by Emuegbunam, and she raised this argument only to
preserve the issue for possible future review by the en banc Sixth Circuit or the Supreme
Court. On the authority of Emuegbunam, we reject this argument.
V. Ex Post Facto Violation at Sentencing
Defendant argues that the district court erroneously imposed a 6-level
enhancement for an offense involving more than 250 victims under U.S.S.G.
§ 2B1.1(b)(2)(C). Defendant failed to raise this argument before the district court, and
she concedes that we review her sentence for plain error only. See United States v.
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Davis, 397 F.3d 340, 346 (6th Cir. 2005). Because the district court calculated the
number of victims using a Guidelines amendment that was not in effect when
Defendant’s offense was committed, we conclude that her sentence violates the Ex Post
Facto Clause.2
Defendant did not object to the PSR’s determination that her offense involved
more than 250 victims. In her initial brief on appeal, Defendant argued that the district
court committed plain error by counting as “victims” individuals who did not suffer
financial harm. See Appellant’s Br. 47–50. The government countered in its appellate
brief that the Sentencing Commission had amended the Guidelines in 2009 to expand the
definition of “victim” to those who have had their identities stolen. See U.S.S.G.
§ 2B1.1 cmt. n.4(E). Then, in her reply brief, Defendant argued that the application of
the 2009 amendment’s definition of “victim” violates the Ex Post Facto Clause.
Although this was the first time that Defendant challenged the enhancement on ex post
facto grounds, she has not forfeited the argument on appeal because it was a direct
response to an argument first made by the government in its brief. See Holloway v.
Brush, 220 F.3d 767, 773–74 (6th Cir. 2000).
At oral argument, the government essentially conceded that the district court
erred when it used the Guidelines’ amended definition of “victim.” Generally, district
courts must apply the version of the Guidelines in place at the time of sentencing.
U.S.S.G. § 1B1.11(a). However, if applying the current Guidelines would amount to a
violation of the Ex Post Facto Clause, the Guidelines clearly instruct the court to apply
the version in place at the time the defendant’s offense was committed. U.S.S.G.
§ 1B1.11(b)(1). Although the Sixth Circuit had already held as much, the Supreme
Court recently confirmed that a sentence violates the Ex Post Facto Clause if the
defendant’s Guidelines range is higher at the time of sentencing than it would have been
2
Defendant also contends that the district court erroneously applied a 3-level aggravating role
enhancement under U.S.S.G. § 3B1.1(b). Because we vacate Defendant’s sentence based on the ex post
facto error, we decline to reach Defendant’s second challenge to her sentence. On remand, the district
court will be free to conduct a de novo resentencing, and any issues that arise from that proceeding can be
raised in a subsequent appeal. See United States v. Saikaly, 207 F.3d 363, 369 (6th Cir. 2000) (discussing
the principles of de novo resentencing).
No. 11-1637 United States v. Tragas Page 14
when the offense was committed. See Peugh v. United States, 133 S. Ct. 2072, 2088
(2013); see also United States v. Welch, 689 F.3d 529, 533 (6th Cir. 2012).
Defendant was indicted for a conspiracy that ended on July 20, 2009, the date
that she was arrested. Prior to November 1, 2009, the Guidelines defined “victim” as
“any person who sustained any part of the actual loss” or “any individual who sustained
bodily injury as a result of the offense.” U.S.S.G. § 2B1.1 cmt. n.1 (2008). Many
circuits, including our court, had held that this definition did not include victims of
identity theft who had been reimbursed by their banks or credit card companies. See
United States v. Yagar, 404 F.3d 967, 971 (6th Cir. 2005); see also United States v.
Kennedy, 554 F.3d 415, 419–22 (3d Cir. 2009) (collecting cases). Under the old
definition of “victim,” the fraud perpetrated by Defendant would have involved only the
fifteen banks, credit unions, and financial services companies that suffered actual losses,
not the individuals whose credit and debit card information was stolen. Her base offense
level would have been increased by 2 levels because her offense involved more than ten,
but less than fifty, victims. See U.S.S.G. § 2B1.1(b)(2)(A).
After November 2009, the Guidelines expanded the definition of “victim” to
include “any individual whose means of identification was used unlawfully or without
authority.” U.S.S.G. § 2B1.1 cmt. n.4(E) (2009). Based on this definition, the PSR and
the district court counted as a victim each of the individuals whose identities were stolen
by Defendant and her co-conspirators, and Defendant’s offense level was increased by
6 levels. See U.S.S.G. § 2B1.1(b)(2)(C). As a result of the 6-level enhancement and
others, the recommended Guidelines range at sentencing was 292–365 months in prison,
and Defendant was sentenced to a term of 300 months. Had she been sentenced under
the version of the Guidelines in effect when her conduct was committed, the Guidelines
range would have been a significantly lower 188–235 months. See U.S.S.G. § 5A.
Because the amendment increased the Guidelines range based on conduct that occurred
before its effective date, its application violated the Ex Post Facto Clause. Welch,
689 F.3d at 553. We have held that a district court commits plain error when it applies
a version of the Sentencing Guidelines in violation of the Ex Post Facto Clause. See
No. 11-1637 United States v. Tragas Page 15
Davis, 397 F.3d at 348–49. Particularly where the error results in a sentencing range
nearly 100 months higher than it would otherwise have been, we have no trouble finding
that the elements of plain error are satisfied here.
CONCLUSION
For the foregoing reasons, we AFFIRM Defendant’s convictions, VACATE her
sentence, and REMAND for resentencing.