United States v. Leslie Onyesoh ( 2013 )

FILED
NOT FOR PUBLICATION DEC 13 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50363
Plaintiff - Appellee, D.C. No. 2:09-CR-00565-DSF
v. MEMORANDUM*
LESLIE N. ONYESOH,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted October 17, 2013**
Pasadena, California
Before: W. FLETCHER and FISHER, Circuit Judges, and ZOUHARY, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
** *
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, Toledo, sitting by designation.
This case returns to this Court following a remand for the district court to
reconsider Defendant’s challenge to a sentencing enhancement. Defendant was
convicted of access device fraud under 18 U.S.C. § 1029(a)(3). We vacated
Defendant’s sentence, finding the Government was required to prove the usability of
expired credit card numbers in order to apply the enhancements under the U.S.
Sentencing Guidelines § 2B1.1(b). United States v. Onyesoh, 674 F.3d 1157 (9th Cir.
2012).
At re-sentencing, the Government presented exhibits, including a spreadsheet
of 500 credit card numbers found during a search of Defendant’s home. The numbers
on this spreadsheet expired between 2004 and 2006. The Government also presented
64 profiles, found in Defendant’s possession, which included personal identifying
information, such as birth dates and Social Security numbers. Six of these profiles
corresponded with information on the credit card number spreadsheet.
The district court also heard testimony from a Postal Inspector who investigated
the credit card fraud and explained the significance of the Government’s evidence.
The Inspector testified to the following points:
• Credit card account numbers do not change when they expire;
rather, a new card is issued with the same account number and a
new expiration date.
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• An expired credit card account number, in conjunction with the
true account holder’s name, address, and other personal
identifiers, allows a person to obtain a duplicate card to make
Internet purchases, enter ATM transactions, and obtain cash
advances.
• Identity thieves typically collect identity theft victim profiles,
stolen mail, checks, SIM cards, and credit reports for use in
applying for new credit cards, all of which were found during a
search of Defendant’s home.
Based on the Inspector’s testimony and the documents found in Defendant’s
possession, the district court found by a preponderance of the evidence that all the
expired credit card numbers contained in the spreadsheet were usable under the
statutory definition of an access device. The district court adopted the probation
officer’s loss calculation, which totaled $310,695.49, of which $250,000 was
attributable to the 500 spreadsheet entries. The district court once again sentenced
Defendant to 46 months of imprisonment.
This Court reviews for clear error the district court’s factual findings on loss
calculation. United States v. Del Toro-Barboza, 673 F.3d 1136, 1154 (9th Cir. 2012).
Based on the re-sentencing hearing record, this Court cannot say the district
court clearly erred in the factual determinations that underlie its loss calculation. The
relevant statutory provision defines an “access device” to include, in part, a “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.” 18 U.S.C. § 1029(e)(1)
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(emphasis added). The Government presented expert testimony at re-sentencing that
“[a] fraudster can actually use the expired credit card to obtain additional information
such as getting a new card reissued to them. They can call in to the banks and actually
if they had, in conjunction with the victim's name, Social Security, date of birth,
address, things like that, they can bypass the security questions and actually ask for
either the new expiration date on the credit cards or ask for a duplicate card be sent
to a place they control.” And, depending on an online merchant’s sale policies, an
expired credit card number could nonetheless be used to conclude an online
transaction.
The district court’s finding that the collection of information contained in the
spreadsheet entries “can be used, alone or in conjunction with another account device,
to obtain money, goods, services, or any other thing of value” was not “without
support in inferences that may be drawn from facts in the record.” Red Lion Hotels
Franchising, Inc. v. MAK, LLC, 663 F.3d 1080, 1087 (9th Cir. 2011). Our decision
in United States v. Yellowe, 24 F.3d 1110 (9th Cir. 1994), does not dictate otherwise.
That we approved of the Government’s method of proof for loss calculation purposes
in Yellowe does not mean it is the exclusive method by which the Government may
satisfy its burden.
AFFIRMED.
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