United States v. Ivo Damyanov

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4221
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IVO SVETOZAROV DAMYANOV,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:11-cr-00120-CCB-1)
Submitted: December 21, 2012 Decided: January 7, 2013
Before DUNCAN and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jonathan A. Gladstone, LAW OFFICES OF JONATHAN GLADSTONE,
Annapolis, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Kristi O’Malley, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ivo Svetozarov Damyanov pled guilty without a plea
agreement to conspiracy to commit access device fraud, in
violation of 18 U.S.C. §§ 371, 1029(a)(1), (b)(2) (2006) (count
one), aiding and abetting access device fraud, in violation of
18 U.S.C. § 2 (2006) and 18 U.S.C. § 1029(a)(1), (e)(1)-(2)
(count four), and aiding and abetting aggravated identity theft,
in violation of 18 U.S.C. §§ 2, 1028A(a)(1), (c)(4) (2006)
(count five). Damyanov appeals his sentence, challenging the
district court’s application of the two-level enhancement
under U.S. Sentencing Guidelines Manual § 2B1.1(b)(11)(B)(i)
(2011) for an offense involving the production or trafficking of
an unauthorized access device or counterfeit access device.
Damyanov contends that, because he was also sentenced for
aggravated identity theft under 18 U.S.C. § 1028A, the district
court’s application of the two-level enhancement amounted to
impermissible double counting.
In assessing a challenge to the district court’s
application of the Guidelines, we review the district court’s
factual findings for clear error and its legal conclusions de
novo. United States v. Alvarado Perez, 609 F.3d 609, 612
(4th Cir. 2010). When a Guidelines provision is applied based
on consideration of factors that already have been accounted for
by another provision of the Guidelines or by statute, this
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amounts to double counting. United States v. Reevey, 364 F.3d
151, 158 (4th Cir. 2004). “The Sentencing Commission plainly
understands the concept of double counting, and expressly
forbids it where it is not intended.” United States v.
Williams, 954 F.2d 204, 208 (4th Cir. 1992).
Section 2B1.1(b)(11) of the Guidelines instructs a
district court to increase a defendant’s offense level by two
levels if the offense involved:
(A) the possession or use of any (i) device-making
equipment, or (ii) authentication feature; (B) the
production or trafficking of any (i) unauthorized
access device or counterfeit access device, or (ii)
authentication feature; or (C)(i) the unauthorized
transfer or use of any means of identification
unlawfully to produce or obtain any other means of
identification, or (ii) the possession of [five] or
more means of identification that unlawfully were
produced from, or obtained by the use of, another
means of identification.
To avoid impermissible double counting of relevant conduct,
however, section 2B1.6 of the Guidelines—the Guideline section
applicable to convictions for aggravated identity theft under
§ 1028A—limits the application of USSG § 2B1.1(b)(11).
Specifically, the commentary instructs that, if a sentence under
the Guideline is imposed “in conjunction with” a sentence for
the underlying fraud offense, the specific offense
characteristics for “the transfer, possession, or use of a means
of identification” are inapplicable. USSG § 2B1.6 cmt.
n.2. Under 18 U.S.C. § 1028A(a)(1), a two-year prison sentence
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is required for the knowing “transfer[], possess[ion], or use[],
without lawful authority” of a “means of identification of
another person” during and in relation to certain underlying
offenses. Although the exclusion language in Application Note 2
“tracks the language that triggers [§ 1028A]’s consecutive term
of imprisonment, . . . [USSG] § 2B1.6 does not exclude all
conduct described in” USSG § 2B1.1(b)(11). United States v.
Jenkins-Watts, 574 F.3d 950, 962 (8th Cir. 2009).
Here, the district court imposed the two-level
enhancement under USSG § 2B1.1(b)(11)(B)(i) based on Damyanov’s
production of unauthorized access devices—plastic cards encoded
with the credit and debit card account information Damyanov and
others skimmed from automated teller machines. The plain
language of Application Note 2 is limited to offenses involving
“the transfer, possession, or use of a means of identification.”
USSG § 2B1.6 cmt. n.2. Moreover, the other Courts of Appeal
that have addressed the applicability of the two-level
enhancement where the evidence showed that a defendant also
sentenced under § 1028A produced the unauthorized or counterfeit
access device have held that the enhancement was properly
imposed. United States v. Perez, 432 F. App’x 930, 934-36
(11th Cir. 2011) (No. 10–10778); United States v. Wiley,
407 F. App’x 938, 942 (6th Cir. 2011) (Nos. 09–5789, 09–
5855); Jenkins-Watts, 574 F.3d at 962; United States v. Jones,
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551 F.3d 19, 25-26 (1st Cir. 2008). We therefore conclude that
the district court did not err in applying the two-level
enhancement under USSG § 2B1.1(b)(11)(i) in this case.
We also reject on review for plain error Damyanov’s
remaining challenges—premised on Application Note 4(A) to USSG
§ 1B1.1 and the rule of lenity—to the application of the two-
level enhancement. Damyanov’s reliance on Application Note 4(A)
as a basis for error in this case is wholly unexplained.
Further, because Application Note 2 is clear on its face, the
rule of lenity is inapplicable. Cf. United States v. Cutler,
36 F.3d 406, 408 (4th Cir. 1994) (stating that the rule of
lenity is applicable to the Sentencing Guidelines where there is
present “a grievous ambiguity or uncertainty in the language and
structure” of the Guideline (internal quotation marks omitted)).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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