United States v. Marites Barrogo ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10228
Plaintiff-Appellee, D.C. No. 1:20-cr-
00012-FMTG-1
v.
MARITES M. BARROGO, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge,
Presiding
Argued and Submitted October 13, 2022
Honolulu, Hawaii
Filed February 2, 2023
Before: Mary M. Schroeder, Johnnie B. Rawlinson, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Bress
2 UNITED STATES V. BARROGO
SUMMARY *
Criminal Law
The panel affirmed a criminal judgment in a case in
which the defendant pleaded guilty to conspiracy to use,
transfer, acquire, alter or possess Supplemental Nutrition
Assistance Program benefits without authorization, in
violation of 7 U.S.C. § 2024 and 18 U.S.C. § 371.
Considering principally whether the district court
properly imposed a two-level sentencing enhancement under
U.S.S.G. § 2B1.1(b)(11)(A)(ii) for the defendant’s misuse of
an “authentication feature,” the panel held that a personal
identification number associated with a debit-type card is an
“authentication feature” under the Sentencing Guidelines
and the statutory provisions they reference.
The panel held that the defendant did not demonstrate
error in the district court’s order requiring her to pay
$18,752.30 in restitution, and rejected the defendant’s
argument that the government’s breach of the plea
agreement constituted plain error.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. BARROGO 3
COUNSEL
Kathryn A. Young (argued), Deputy Federal Public
Defender; Cuauhtemoc Ortega, Federal Public Defender,
Federal Public Defender’s Office, Los Angeles, California;
for Defendant-Appellant.
Benjamin K. Petersburg (argued), Assistant United States
Attorney; Shawn N. Anderson, United States Attorney,
Office of the United States Attorney, Hagatna, Guam; for
Plaintiff-Appellee.
OPINION
BRESS, Circuit Judge:
In this criminal case involving the unauthorized use of
federal food stamp benefits, we principally consider whether
the district court properly imposed a two-level sentencing
enhancement for the defendant’s misuse of an
“authentication feature.” U.S.S.G. § 2B1.1(b)(11)(A)(ii).
We hold that a personal identification number (PIN)
associated with a debit-type card is an “authentication
feature” under the Sentencing Guidelines and the statutory
provisions they reference. We also reject the defendant’s
other assignments of error and affirm her conviction and
sentence.
I
The Supplemental Nutrition Assistance Program
(SNAP), formerly known as the Food Stamp Program, is a
federal program that “permit[s] low-income households to
obtain a more nutritious diet through normal channels of
4 UNITED STATES V. BARROGO
trade by increasing food purchasing power for all eligible
households who apply for participation.” 7 U.S.C. § 2011;
see also Hall v. U.S. Dep’t of Agric., 984 F.3d 825, 831 (9th
Cir. 2020) (describing the SNAP program). States and
territories are provided funding to administer SNAP
benefits. 7 U.S.C. § 2013(a).
In Guam, SNAP is administered through the Guam
Department of Public Health and Social Services (DPHSS).
DPHSS provides SNAP recipients with an Electronic
Benefits Transfer (EBT) card, which is like a debit card that
can be used at authorized stores to buy certain food products.
Each EBT card has a card number imprinted on it. And each
cardholder has a PIN that, like a debit card PIN, must be
entered at the point of sale to complete the transaction.
Marites Barrogo, who was not a SNAP beneficiary, was
the owner and operator of Laguna Best Restaurant and
Catering in Harmon, Guam. From 2015 to 2020, Barrogo
bought SNAP benefits from various individuals at a
substantial discount, and then used those benefits to buy bulk
food items for her restaurant.
Barrogo used two different methods to traffic SNAP
benefits. From 2015 to 2018, Barrogo regularly purchased
SNAP benefits from co-defendant Stephanie Muna.
Approximately once a month, Muna would give Barrogo her
EBT card and PIN and Barrogo would purchase bulk food
items for Laguna Best. Barrogo would typically use $600
worth of SNAP benefits each month, for which she would
pay Muna $400 in cash. During this period, Muna recruited
at least four other SNAP beneficiaries to sell their benefits
to Barrogo.
In June 2018, the DPHHS Investigation and Recovery
Office began investigating Barrogo. When investigators
UNITED STATES V. BARROGO 5
visited her restaurant and questioned her, Barrogo admitted
that she had been paying Muna cash in exchange for SNAP
benefits. Barrogo also provided investigators with a signed
statement acknowledging her transactions with SNAP
beneficiaries. Following this interview, DPHSS
permanently disqualified Muna from receiving SNAP
benefits. Muna’s trafficked SNAP benefits ultimately
totaled $15,625.
Notwithstanding the DPHSS investigation, Barrogo
continued to traffic SNAP benefits with at least three other
SNAP beneficiaries, except now using a more surreptitious
method. Instead of using the EBT cards herself, she gave
shopping lists to SNAP beneficiaries who then purchased
food for the restaurant in exchange for cash.
In December 2019, the DPHSS Investigation and
Recovery Office received a call from an informant who
reported that two men were delivering food items to Laguna
Best using their vehicle. The informant provided photos of
the men, one of whom was later identified as A.M. Using
video footage from stores, the investigators concluded that
A.M. and his common law spouse, J.D., had been using their
SNAP benefits to make two to three purchases per month of
the same bulk food items, including large sacks of rice,
boxes of frozen meats, vegetables, and a whole pig. These
items were clearly not intended for personal household
consumption. Between the video footage and the
informant’s photos of A.M. delivering bulk food items to
Laguna Best, investigators were able to link these purchases
to Barrogo.
Based on EBT card receipts reflecting suspected
trafficked items, DPHSS concluded that A.M. and J.D. had
provided a total of $21,317.67 in SNAP benefits to Barrogo
6 UNITED STATES V. BARROGO
between 2018 and 2020. Following another anonymous tip,
DPHSS identified a fourth individual, A.T., with whom
Barrogo had trafficked another $561.53 in SNAP benefits.
The informant reported that on November 4, 2019, A.T.
delivered ten sacks of rice and five boxes of spareribs to
Laguna Best.
A grand jury indicted Barrogo on two counts of the
unauthorized use of SNAP benefits, in violation of 7 U.S.C.
§ 2024, and one count of conspiracy to use, transfer, acquire,
alter or possess SNAP benefits without authorization, in
violation of 7 U.S.C. § 2024 and 18 U.S.C. § 371. Barrogo
pled guilty to the conspiracy count. As part of her plea
agreement, Barrogo stipulated to a two-level authentication
feature enhancement under U.S.S.G. § 2B1.1(b)(11)(A)(ii),
which was based on her use of EBT cards and PINs to
purchase food. The other two charges in the indictment were
dismissed as part of the plea.
With a two-level increase for use of an authentication
feature, the advisory Sentencing Guidelines range was 10–
16 months in prison. The district court sentenced Barrogo to
ten months’ imprisonment and three years of supervised
release. The court also ordered Barrogo to pay $18,752.30
in restitution. Barrogo timely appealed.
II
We first address whether the district court properly
applied the two-level authentication feature enhancement
based on Barrogo’s use of the SNAP beneficiaries’ EBT
cards and PINs. Generally, we review the district court’s
interpretation of the Sentencing Guidelines de novo. United
States v. Parlor, 2 F.4th 807, 811 (9th Cir. 2021). Because
Barrogo failed to object below, however, we review here for
plain error. United States v. Wang, 944 F.3d 1081, 1085 (9th
UNITED STATES V. BARROGO 7
Cir. 2019). Regardless, the outcome would be the same
under any standard of review because the district court
correctly applied the enhancement. 1
U.S.S.G. § 2B1.1(b)(11)(A)(ii) provides for a two-level
increase if the offense involved “the possession or use of
any . . . authentication feature.” Three layered statutory
definitions are relevant to the proper interpretation of this
enhancement. First, the Sentencing Guidelines incorporate
the definition of “authentication feature” found in 18 U.S.C.
§ 1028(d)(1). See U.S.S.G. § 2B1.1 cmt. 10(A). Section
1028(d)(1) defines an “authentication feature” as
any hologram, watermark, certification,
symbol, code, image, sequence of numbers or
letters, or other feature that either
individually or in combination with another
feature is used by the issuing authority on an
identification document, document-making
implement, or means of identification to
determine if the document is counterfeit,
altered, or otherwise falsified[.]
18 U.S.C. § 1028(d)(1) (emphasis added).
Second, the statute defines “means of identification” as
“any name or number that may be used, alone or in
conjunction with any other information, to identify a specific
individual.” Id. § 1028(d)(7). This includes a long list of
standard “means of identification” such as social security
1
Although Barrogo has now been released from prison, her counsel
clarified at oral argument that the authentication feature issue is not moot
because if it were resolved in Barrogo’s favor, that could provide a basis
for the district court to revisit Barrogo’s supervised release.
8 UNITED STATES V. BARROGO
and drivers’ license numbers. Id. § 1028(d)(7)(A)–(C). But
“means of identification” also includes any “access device
(as defined in section 1029(e)).” Id. § 1028(d)(7)(D)
(emphasis added).
Lastly, an “access device” is then defined as
any card, plate, code, account number,
electronic serial number, mobile
identification number, personal identification
number, or other telecommunications
service, equipment, or instrument identifier,
or other means of account access that can be
used, alone or in conjunction with another
access device, to obtain money, goods,
services, or any other thing of value, or that
can be used to initiate a transfer of funds
(other than a transfer originated solely by
paper instrument)[.]
Id. § 1029(e)(1) (emphasis added). Taken together, the
statutory scheme thus defines “authentication feature” to
mean certain qualifying features (such as letters, numbers, or
symbols) used on a “means of identification,” and an “access
device” is such a “means of identification.”
We interpret both statutes and the Sentencing Guidelines
using traditional tools of statutory construction. United
States v. Cox, 963 F.3d 915, 920 (9th Cir. 2020); United
States v. Valenzuela, 495 F.3d 1127, 1133 (9th Cir. 2007).
Although the interrelated provisions are here somewhat
complex, lacing them together shows that the district court
properly imposed the enhancement in Barrogo’s case.
UNITED STATES V. BARROGO 9
There is no question that a PIN satisfies the first part of
the “authentication feature” definition: it is a “code” or
“sequence of numbers.” 18 U.S.C. § 1028(d)(1). Nor is it
contested that the Guam DPHSS is an “issuing authority.”
See id. § 1028(d)(6)(A) (defining “issuing authority” as “any
governmental entity or agency that is authorized to issue
identification documents, means of identification, or
authentication features”); United States v. Kirilyuk, 29 F.4th
1128, 1139 (9th Cir. 2022). Lastly, an EBT card is an
“access device”—and therefore a “means of
identification”—because it is a “card . . . that can be
used . . . to obtain money, goods, services, or any other thing
of value.” 18 U.S.C. § 1029(e)(1). An EBT card is also
associated with an account number, and that too is an “access
device” as the statue defines it. Id.We can now put the various pieces together. A PIN
number (a “code” or “sequence of numbers”) is an
“authentication feature” because it is “used by the issuing
authority [(DPHHS)] on . . . [a] means of identification”—
the EBT card or account number, which are “access
devices”— “to determine if the document is counterfeit,
altered, or otherwise falsified.” See 18 U.S.C. § 1028(d)(1).
Put another way, a “sequence of numbers” that is “used by
the issuing authority on . . . [a] means of identification”—
such as a “card . . . that can be used . . . to obtain . . . any
thing of value”—qualifies as an “authentication feature.” Id.§§ 1028(d)(1), 1029(e)(1).
A possible source of ambiguity in this case is the
requirement that the authentication feature—here, the PIN—
be “used by the issuing authority on . . . [a] means of
identification.” Id. § 1028(d)(1) (emphasis added). Barrogo
argues that a PIN does not count as an authentication feature
because its numbers are not physically “on” the EBT card.
10 UNITED STATES V. BARROGO
While this argument has some superficial appeal, it is not
consistent with either the statutory text considered as a
whole or our precedent.
A reading requiring the authentication feature to be
physically “on . . . [a] means of identification” would be
inconsistent with the plain language of § 1028(d)(7), which
defines “means of identification.” As we have noted, the
statute defines “authentication feature” to include a sequence
of numbers used on a “means of identification,” the latter of
which includes “access devices.” Id. § 1028(d)(7)(D). And
“access devices” is defined to include both physical
elements, such as a “card” or “plate,” and non-physical
elements, such as a “code, account number, electronic serial
number, mobile identification number, [or] personal
identification number.” Id. § 1029(e)(1).
The statute therefore contemplates someone using a non-
physical “authentication feature,” like a PIN, “on” a non-
physical “means of identification,” like an account number.
Id. § 1028(d)(1). This reading is consistent with dictionary
definitions of the word “on,” which indicate that it can
describe non-physical relations between subjects. See, e.g.,
10 Oxford English Dictionary 793 (2nd ed. 1989) (defining
“on” as “[o]f local position outside of, but close to or near,
any surface. Primarily of things physical, but also of non-
physical things treated as having extension.”) (emphasis
added); American Heritage Dictionary 1263 (3rd ed. 1994)
(noting that “on” can be “[u]sed to indicate [a] figurative or
abstract position”). This definition of “on” is also consistent
with common parlance, in which we regularly speak (for
example) of the number or name “on” an account.
The statutory scheme therefore contemplates that an
“authentication feature” need not be a physical thing affixed
UNITED STATES V. BARROGO 11
to or imprinted on another physical thing because a “means
of identification” need not itself be a physical thing. A non-
physical association between the “authentication feature”
and the “means of identification” can therefore be sufficient.
The rest of the definition of “means of identification”
supports this, as well. That definition includes types of
personal identifying information—including “biometric
data,” such as voice or retina information, and “unique
electronic identification number[s], address[es], or routing
code[s]”—that are not necessarily tangible in nature, but
which are nonetheless used “to identify a specific
individual.” 18 U.S.C. § 1028(d)(7)(B)–(C). Barrogo’s
reading of “on” would render various parts of the statutory
definition non-operative.
The fact that certain authentication features, such as
“hologram[s]” or “watermark[s],” must by their nature have
some physical relationship with the means of identification
does not change our analysis. 18 U.S.C. § 1028(d)(1). We
do not “construe a statute by reading related clauses in
isolation or taking parts of a whole statute out of their
context.” Westwood Apex v. Contreras, 644 F.3d 799, 804
(9th Cir. 2011). Because the statute here includes both
physical and non-physical “means of identification,” we
think that the far more reasonable interpretation of
“used . . . on” in § 1028(d)(1) includes the use of non-
physical authentication features that are naturally associated
with a physical or non-physical “means of identification.”
Here, that is a PIN “on” an account or associated card.
Our interpretation also finds considerable support in our
leading precedent in this area, United States v. Sardariani,
754 F.3d 1118 (9th Cir. 2014). In that case, the defendant
argued that the authentication feature enhancement did not
apply to his use of forged notary seals and signatures on
12 UNITED STATES V. BARROGO
deeds because the deeds themselves were not “identification
documents.” We rejected this argument, noting that “the
statute does not require that an authentication feature appear
on an identification document” but also encompasses
features used “on . . . [a] means of identification.” Id. at
1121 (quoting 18 U.S.C. § 1028(d)(1)). Since a signature is
a “means of identification,” we concluded that “the forged
notary seals were used on a means of identification,” without
focusing on the exact physical relationship between the two.
Id. at 1121–22 (emphasis added); see also id. at 1122 (“The
notary seals were, therefore, authentication features applied
to means of identification [(the signatures)].”) (emphasis
added). Sardariani is hard to square with Barrogo’s more
limited reading of “on . . . [a] means of identification” as
meaning only a physical inscription on a physical document
or device.
It is true, however, that § 1028(d)(1) does use the phrase
“the document” in addition to “means of identification,”
stating that “authentication feature” means a qualifying
feature (here a code or sequence of numbers) that “is used
by the issuing authority on an identification document,
document-making implement, or means of identification to
determine if the document is counterfeit, altered, or
otherwise falsified.” The word “document” is not defined in
the statute, but it is not limited to something like a piece of
paper. Instead, “document” traditionally means
“[s]omething tangible on which words, symbols, or marks
are recorded.” Document, Black’s Law Dictionary (11th ed.
2019). That would of course include the prototypical
identification “document”: the government-issued ID. See
18 U.S.C. § 1028(d)(3) (defining “identification
document”). We have no occasion to decide whether “the
document” in § 1028(d)(1) should be limited to tangible
UNITED STATES V. BARROGO 13
items (in context, the phrase “the document” appears to refer
also to “means of identification,” which, as have noted, are
not necessarily tangible). But for present purposes, it is
sufficient to conclude that the EBT card is a tangible item on
which information is recorded, and so clearly qualifies as a
“document.”
Barrogo makes one final argument. Pointing out that the
purpose of an “authentication feature” is “to determine if the
document is counterfeit, altered, or otherwise falsified,” id.
§ 1028(d)(1), Barrogo argues that the authentication feature
enhancement should not apply to her because the EBT cards
in this case were genuine. In her view, the purpose of a PIN
is not to establish that the card was authentic, but to prevent
unauthorized persons from accessing SNAP benefits.
We find this argument unpersuasive. Although Barrogo
is of course correct that one purpose of a PIN is to prevent
use of a card by an unauthorized person, a PIN also serves
as a check against the counterfeiting, alteration, or
falsification of the document itself. A wrongdoer’s inability
to provide a PIN is, in other words, a way of “determin[ing]
if the document is counterfeit, altered, or otherwise
falsified.” Id. And regardless, the phrase “otherwise
falsified” broadens the reach of the provision beyond
counterfeiting or formally altering a document. Barrogo
presented a “falsified” EBT card and PIN when she falsely
represented herself as a SNAP beneficiary. Someone who
falsely signs a check purporting to represent the account
holder falsifies the check. Similarly, someone who falsely
uses a PIN and EBT card to access SNAP benefits falsifies
the “means of identification” and, here, the underlying
request for government-subsidized food. Barrogo thus falls
within both the text and objective of the authentication
feature enhancement.
14 UNITED STATES V. BARROGO
In sum, the “authentication feature” here is the PIN (the
“sequence of numbers”) used by DPHSS (the “issuing
authority”) on the EBT card or account number (“access
devices” that are a “means of identification”) to determine if
that EBT card (“the document”) is counterfeit, altered, or
otherwise falsified. That is a sensible reading of the statute,
and one that gives the text its full effect. The district court
therefore correctly imposed the two-level authentication
feature enhancement.
III
We next consider whether the record adequately
supports the district court’s $18,752.30 restitution order. We
review the legality of a restitution order de novo and related
factual findings for clear error. United States v. Kaplan, 839
F.3d 795, 800 (9th Cir. 2016). We find no error in the
restitution order.
The government requested $18,752.30 in restitution for
the DPHSS. It calculated this amount based on $15,625 in
trafficked benefits from Stephanie Muna, $21,317.67 from
A.M. and J.D., and $561.93 from A.T. The total trafficked
benefits amounted to $37,504.60. The government then
sought restitution for half that amount, representing what it
regarded as Barrogo’s fair share of the liability.
Barrogo conceded that she was responsible for the SNAP
benefits trafficked with Muna and A.T., totaling $16,186.
But she argued that the government did not sufficiently
prove that she was responsible for the $21,317.67 in benefits
trafficked with A.M. and J.D. Though she admits to having
made improper transactions with these individuals, she
claimed that the total amount of trafficked benefits was
lower than what the government claimed.
UNITED STATES V. BARROGO 15
In ordering restitution, a district court must comply with
the procedures in 18 U.S.C. § 3664, which require the court
to resolve “[a]ny dispute as to the proper amount . . . of
restitution . . . by the preponderance of the evidence.” Id.§ 3664(e). The government bears the “burden of
demonstrating the amount of the loss sustained by a victim.”
Id. We have previously held that Ҥ 3664(e) requires both
that a district court set forth its reasons in resolving a dispute
over restitution and that a restitution award, if one issues, be
adequately supported by evidence in the record.” United
States v. Tsosie, 639 F.3d 1213, 1222 (9th Cir. 2011). At the
same time, “district courts possess ‘a degree of flexibility in
accounting for a victim’s complete losses.’” Id. at 1223(quoting United States v. Waknine, 543 F.3d 546, 557 (9th
Cir. 2008)).
The district court satisfied its responsibilities here. The
court held a hearing devoted to restitution, at which it played
an active role. At the hearing, the district court heard
testimony from Ruben Carandang, an investigator with the
DPHSS Division of Public Welfare. Carandang testified that
SNAP purchases are maintained as records, and that his
office calculated the amount of SNAP benefits trafficked
with A.M. and J.D. based on receipts from their EBT
purchases from 2018 to 2020. Using these receipts,
investigators looked for large “repeated[]” bulk purchases of
items that Barrogo was known to use in her restaurant, such
as sacks of rice, frozen meats, vegetables, lumpia wrappers,
and certain spices. Carandang further explained that A.M.
and J.D. were purchasing the same bulk items “2 to 3 times
in a month,” which is “very unusual” and not consistent with
“consumption [for] the household.”
In addition to the receipts, Carandang testified that his
office had a photo of A.M. and J.D. delivering carrots to
16 UNITED STATES V. BARROGO
Barrogo’s restaurant and video surveillance footage of the
two purchasing bulk items. Carandang’s office had also
found a photo of a whole pig on Barrogo’s Facebook page
that coincided in time with A.M. or J.D. using SNAP
benefits to purchase a whole pig. Despite Barrogo’s
objections, the district court determined that Carandang was
“an incredibly solid” and “very credible” witness, and that
the government had proven its requested restitution amount
by a preponderance of the evidence.
Barrogo has not demonstrated error in the district court’s
determination, and her various arguments are either
speculative, overstated, or effectively assume that the
government and the district court were required to meet
heightened standards of proof that our law does not impose
in this context. Here, a “very credible” investigator
explained his method of calculation, which was based on
receipts and other evidence, in the context of a case in which
the defendant admitted her wrongdoing. This was sufficient.
And Barrogo’s argument that the restitution order was
improper because it was not proven to a jury beyond a
reasonable doubt is foreclosed by our precedent. See United
States v. Green, 722 F.3d 1146, 1149 (9th Cir. 2013).
Accordingly, we uphold the district court’s order requiring
Barrogo to pay $18,752.30 in restitution. 2
2
We also reject Barrogo’s argument that the government’s breach of the
plea agreement constituted plain error, requiring resentencing. Although
the government concedes that it erroneously recommended two years of
supervised release when it had agreed to recommend just one, Barrogo
did not object below and there is not “a reasonable probability that the
error affected the outcome” of the proceedings. United States v. Marcus,
560 U.S. 258, 262 (2010). The district court did not accept the
government’s recommendation of two years’ supervised release, and
UNITED STATES V. BARROGO 17
* * *
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
instead went with three years. The district court had elsewhere
commented on the severity of Barrogo’s conduct and the fact that she
persisted in it even after DPHSS began investigating her. We conclude
that “[t]he record establishes that the district court conducted its own
independent evaluation of the propriety of the stipulated sentence.”
United States v. Gonzalez-Aguilar, 718 F.3d 1185, 1187 (9th Cir. 2013).
There is no non-speculative basis to conclude that the government’s
breach of the plea agreement affected the district court’s sentencing
decision. See id. at 1189 (“Mere ‘possibility’ is insufficient to establish
prejudice.”).