United States v. Lancelot Wilburn ( 2015 )

FILED
NOT FOR PUBLICATION
DEC 22 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50501
Plaintiff-Appellee, D.C. No. 2:13-cr-00270-DMG
v. MEMORANDUM*
LANCELOT JOSHUA WILBURN, AKA
L Dog,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted December 10, 2015
Pasadena, California
Before: GOULD and BERZON, Circuit Judges, and ZOUHARY,** District
Judge.
Lancelot Wilburn appeals his 57-month sentence for: possession of fifteen or
more counterfeit or unauthorized access devices, in violation of 18 U.S.C.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
§ 1029(a)(3); possession of device-making equipment, in violation of 18 U.S.C.
§ 1029(a)(4); use of a counterfeit access device, in violation of 18 U.S.C.
§ 1029(a)(1); and aggravated identity theft, in violation of 18 U.S.C. § 1028A. We
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.
1. The district court did not violate Federal Criminal Rule 32 by
considering the Government’s loss analysis filed after the deadline for objecting to the
Presentence Report and without an express finding of good cause. But even assuming
without deciding that the Government violated Rule 32, Wilburn has shown no
prejudice because he had adequate opportunity to respond to the Government’s
submission prior to sentencing and, further, Wilburn specifically declined the court’s
offer for a continuance.
2. Wilburn contends the district court erred in its application of the
Sentencing Guidelines by (1) finding he possessed 770 access devices, and (2) making
no finding as to the usability of those access devices. We review the district court’s
construction of the Sentencing Guidelines de novo, and its factual findings for clear
error. United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006). “A calculation
of the amount of loss is a factual finding reviewed for clear error.” United States v.
Garro, 517 F.3d 1163, 1167 (9th Cir. 2008).
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We decline to reach Wilburn’s argument that counting duplicate account
numbers found embossed on credit cards, handwritten in Wilburn’s notebook, and
downloaded to Wilburn’s computer is impermissible double counting. The district
court applied a 12-level increase based on its conclusion that Wilburn possessed 770
access devices for a total loss of $385,000. See U.S. Sentencing Guidelines Manual
§ 2B1.1(b)(1)(G) (2013) (applying a 12-level enhancement for loss of more than
$200,000 and less than $400,000); id. at comment. (n.3(F)(I)) (calculating loss at $500
per access device). Even if there were complete overlap between the three sources of
account numbers, the evidence presented by the Government indicates Wilburn still
would have possessed at least 471 unique stolen account numbers resulting in an
intended loss of $235,000 and the same 12-level increase. See U.S.S.G. §
2B1.1(b)(1)(G); United States v. Nguyen, 81 F.3d 912, 915 (9th Cir. 1996). Thus we
do not resolve the double counting argument because any error is harmless as to the
guideline calculation.
We also interpret the district court’s conclusion, that the Government had
shown by a preponderance of the evidence that Wilburn possessed 770 access devices,
as a finding that the access devices were usable. An “access device” includes a card
or an account number “that can be used, alone or in conjunction with another access
device, to obtain money, goods, services, or any other thing of value.” 18 U.S.C. §
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1029(e)(1). In addition to Wilburn’s admission that he and his co-conspirators used
the stolen account numbers, the Government’s evidence that Wilburn “was prepared
to use the numbers in combination with another device . . . satisf[ies] the statutory
requirements.” United States v. Onyesoh, 674 F.3d 1157, 1160 (9th Cir. 2012).
AFFIRMED.
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