United States v. Smith

12-134-cr
United States v. Smith
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
st
the 1 day of March, two thousand thirteen.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges,
JANE A. RESTANI,*
Judge.
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UNITED STATES OF AMERICA,
Appellee,
-v.- 12-134-cr
NATASHA SMITH,
Defendant-Appellant.
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FOR APPELLEE: Paul A. Murphy, Sandra S. Glover,
Assistant United States Attorneys,
for David B. Fein, United States
Attorney for the District of
Connecticut, New Haven,
Connecticut.
FOR DEFENDANT-APPELLANT: Todd A. Bussert, Frost Bussert LLC,
New Haven, Connecticut.
Appeal from the United States District Court for the
District of Connecticut (Hall, J.).
*
The Honorable Jane A. Restani, of the United States
Court of International Trade, sitting by designation.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-appellant Natasha Smith was convicted,
following a plea of guilty, of one count of conspiracy to commit
access device fraud, in violation of 18 U.S.C. § 1029(b)(2).
During her plea allocution, Smith admitted that she agreed with
others to steal credit card numbers from patrons of a restaurant
where she worked by using a skimming device, and that she could
foresee that those credit card numbers would be used by her
coconspirators in an unauthorized manner. The district court
sentenced her to three years' probation and ordered her to pay
restitution in the amount of $135,888.04, to be paid jointly and
severally with any other defendants convicted of the same
conspiracy, at a rate of $400.00 per month.
On appeal, Smith challenges the restitution order
entered against her. She argues that the district court erred by
(1) ordering her to pay restitution for losses caused by the
actions of her coconspirators, and (2) improperly failing to
apportion the loss in light of her indigence and lesser role in
the offense. We assume the parties' familiarity with the
underlying facts, the procedural history of the case, and the
issues presented for review.
Ordinarily, "[i]n the case of restitution orders, we
review issues solely of law de novo, findings of adjudicative
fact for clear error, and the multi-factor balancing aspects of
such an order for abuse of discretion." United States v. Cadet,
664 F.3d 27, 34 (2d Cir. 2011) (citation omitted). Where "a
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defendant fails to object to the restitution order at the time of
sentencing," however, our review is for plain error. United
States v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012).
The Mandatory Victims Restitution Act of 1996 (the
"MVRA"), 18 U.S.C. § 3663A, applies to all offenses, like
Smith's, involving fraud or deceit where an identifiable victim
sustained a loss. See 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii),
(c)(1)(B). The MVRA defines the term "victim" as:
a person directly and proximately harmed as a
result of the commission of an offense . .
. including, in the case of an offense that
involves as an element a scheme, conspiracy,
or pattern of criminal activity, any person
directly harmed by the defendant's criminal
conduct in the course of the scheme,
conspiracy, or pattern.
18 U.S.C. § 3663A(a)(2). "If the court finds that more than 1
defendant has contributed to the loss of a victim, the court may
make each defendant liable for payment of the full amount of
restitution or may apportion liability among the defendants to
reflect the level of contribution to the victim's loss and
economic circumstances of each defendant." Id. § 3664(h). In
United States v. Boyd, 222 F.3d 47 (2d Cir. 2000) (per curiam),
we held that the district court could impose restitution holding
the defendant liable for the "reasonably foreseeable acts of all
co-conspirators," even where the jury had acquitted the defendant
as to some aspects of the conspiracy. Id. at 51. In particular,
we noted that "[w]here . . . a conspiracy has multiple victims,
the [MVRA] allow[s] the sentencing court to order a single
defendant to pay restitution for all losses caused by the actions
of that defendant as well as by the actions of that defendant's
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co-conspirators, or, in its discretion, to allocate restitution
proportionately among culpable parties." Id. at 50.
Because Smith was convicted of a conspiracy to commit
access device fraud, the district court properly ordered
restitution for all losses caused by Smith, as well as by the
reasonably foreseeable actions of her coconspirators. See id. at
50-51. Smith stipulated in her plea agreement that the total
losses sustained as a result of the charged conspiracy were
$135,888. Although she reserved the right to seek to have the
restitution obligation arising from those losses apportioned
among her and her coconspirators, and she requested the court to
impose restitution only for the losses resulting from credit
cards she personally swiped, she did not contest that the full
amount of losses resulting from the conspiracy were $135,888.
Further, the record demonstrates that -- as the district court
found -- Smith was aware that her coconspirator also was stealing
credit card information, making it reasonably foreseeable that
the conspiracy would cause substantial losses to card holders.
Accordingly, we conclude that the district court did not err in
holding Smith responsible for losses resulting from the actions
of her coconspirators in furtherance of the conspiracy.
Further, the district court correctly noted that it had
the discretion to apportion liability among Smith and her
coconspirators or to hold Smith jointly and severally liable for
the full loss caused by the conspiracy. See 18 U.S.C. § 3664(h).
In exercising its discretion, the court properly considered
Smith's level of contribution to the victims' losses and her
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economic circumstances. See id. The court offered Smith an
opportunity to argue that her financial resources rendered her
incapable of repaying the full amount of loss, and even ordered
Smith to pay a lesser monthly restitution payment than Smith
represented she could make. Accordingly, we conclude that the
district court did not abuse its discretion in holding Smith
jointly and severally liable for the full amount of losses
suffered by victims of the conspiracy rather than apportioning
the restitution liability among Smith and her coconspirators.
We have considered Smith's remaining arguments and
conclude that they lack merit. Accordingly, we AFFIRM the
judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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