United States v. Timothy Truong

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-10446
Plaintiff-Appellee,
v.  D.C. No. 2:06-CR-
00487-FCD-1
TIMOTHY TRUONG,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
Argued and Submitted
November 3, 2009—San Francisco, California
Filed December 1, 2009
Before: Betty B. Fletcher, William C. Canby, Jr. and
Susan P. Graber, Circuit Judges.
Per Curiam Opinion
15659
UNITED STATES v. TRUONG 15661
COUNSEL
Lawrence G. Brown, Acting United States Attorney, and Mat-
thew D. Segal (argued), Assistant United States Attorney,
Office of the United States Attorney, Sacramento, California,
for the plaintiff-appellee.
Joseph J. Wiseman (argued), Law Offices of Joseph J. Wise-
man, Davis, California, for the defendant-appellant.
15662 UNITED STATES v. TRUONG
OPINION
PER CURIAM:
Defendant Timothy Truong appeals his ten year sentence
for possessing fifteen or more unauthorized access devices
with intent to defraud. He argues that by treating retail gift
cards as access devices, the district court wrongly calculated
the advisory sentence under the Guidelines. He also argues
that the sentence the district court imposed was unreasonable.
We have jurisdiction under 28 U.S.C. § 1291 and affirm.
I. Background
The purchaser of a gift card loads money onto the card and
electronically activates it for use. An activated card can be
used to purchase goods from the retailer who sold the card.
Many retail gift cards contain a printed panel that can be
scratched off to reveal the card’s unique personal identifica-
tion number, or PIN. The customer can use the PIN to track
how much money is left on the card.
Timothy Truong would steal gift cards from retail stores.
With special equipment, Truong would capture the informa-
tion that is stored magnetically on each gift card. He would
also scratch off a panel to reveal each card’s PIN. After dupli-
cating the card (plastic shaped like a credit card), he would
return the duplicates to the shelves from which he had stolen
the originals. He kept the originals. A few days later, he
would use the PIN to learn whether the duplicate gift card had
been sold and, if so, how much money had been loaded onto
it. If the duplicate gift card had been sold and thereby acti-
vated for use, Truong would use the original gift card to make
purchases or would exchange it for cash.
On October 22, 2006, officers, alerted by Wal-Mart’s
security, approached Truong’s Cadillac Escalade in the park-
ing lot of the Yuba City Wal-Mart. Truong sped out of the
UNITED STATES v. TRUONG 15663
parking lot, leading the police on a high-speed chase through
several red lights and causing a minor collision between two
nearby vehicles. He eventually hit a Ford pickup, whose
driver suffered a concussion and a number of bruises. After
the crash, Truong tried to run away, but a civilian bystander
managed to tackle Truong.
After Truong’s arrest, police searched his Escalade, finding
more than 3,884 gift cards from nine different retail stores
including Wal-Mart, paperwork containing another 4,050
Wal-Mart gift card account numbers, and equipment used to
duplicate retail gift cards. He was charged with violating 18
U.S.C. § 1029(a)(3), which prohibits anyone from possessing,
knowingly and with intent to defraud, “fifteen or more
devices which are counterfeit or unauthorized access
devices.” Truong pleaded guilty.
The Presentence Report (“PSR”) calculated financial loss
under U.S.S.G. § 2B1.1 cmt. n.3(F)(i), which determines loss
by how many “access device[s]” were involved in the offense.
At sentencing, the district court rejected Truong’s objections
to the PSR, whose recommended findings it adopted.
Although the recommended Guidelines range was 70 to 87
months, the district court, largely because of Truong’s history
of repeated access-device offenses, imposed the statutory
maximum of 120 months (ten years) in prison.
II. Discussion
A. Guidelines Calculation
Although Truong pleaded guilty to possessing fifteen or
more unauthorized access devices with intent to defraud, the
thrust of his appeal is that the sentence was miscalculated by
applying the Guidelines application note for calculating loss
caused by access devices. According to Truong, the retail gift
cards he possessed do not qualify as “access devices” under
the Guidelines. We review the district court’s interpretation of
15664 UNITED STATES v. TRUONG
the Guidelines de novo. United States v. Barsumyan, 517 F.3d
1154, 1157 (9th Cir. 2008).
[1] The Guidelines application note takes its definition of
“access device” from 18 U.S.C. § 1029(e)(1), which provides
that an “access device” must access an “account.” See United
States v. Abozid, 257 F.3d 191, 195 n.4 (2d Cir. 2001). Tru-
ong contends that the retail gift cards in this case did not
access an “account” and therefore were not access devices.
[2] We have defined “an account [as] a contractual relation-
ship that makes possible the provision of goods, services, or
money based on payment, or the expectation of payment, at
some later point in time, as described by the entry of credits
and debits in a formal record.” United States v. Bailey, 41
F.3d 413, 417 (9th Cir. 1994). When buying a retail gift card,
the customer gives the retailer an amount of money which is
then credited to the card and may be drawn against. That pur-
chase creates a contractual relationship. Cf. United States v.
Bruce, 531 F. Supp. 2d 983, 989 (N.D. Ill. 2008) (concluding
that counterfeit Universal Product Code stickers do not access
an account). Each purchase made with the card is a debit from
the balance initially associated with the card, and both the
customer and the retailer can keep track of the balance on the
card. Under Bailey, a retail gift card accesses an “account.”
Nothing in either the plain language of the statute or the
case law requires that an “access device” contain information
identifying a particular person as its owner. See Bailey, 41
F.3d at 418 (finding irrelevant whether access device was
traceable to a legitimate customer). What matters is that Tru-
ong’s stolen retail gift cards were a “means of account access”
by which he “obtain[ed] money, goods, [or] services.” 18
U.S.C. § 1029(e)(1).
B. Reasonableness of Sentence
[3] Under our “deferential abuse-of-discretion standard of
review,” we also reject Truong’s argument that the district
UNITED STATES v. TRUONG 15665
court’s sentence was unreasonable. Gall v. United States, 552
U.S. 38, 52 (2007). The district court sufficiently explained
that the Guidelines did not account for Truong’s particular
type of recidivism. It was “astound[ed]” not by the mere fact
of Truong’s recidivism, but by Truong’s repeated commission
of the same kind of crime — access device fraud — despite
repeated punishment. The court also relied on the fact that,
while fleeing, Truong “almost killed” the driver of the pickup
and, thus, would “do anything to avoid justice.” The charges
pending against Truong in state courts do not make the sen-
tence unreasonable, since they neither erase Truong’s long
history of recidivism nor guarantee that Truong will face fur-
ther punishment. Nor does the amount of proven actual loss
in this case require reversal, for the PSR’s calculation of
actual loss was relatively low only because the probation offi-
cer could not identify the many victims of Truong’s fraud.
The sentencing transcript evidences the district court’s thor-
ough consideration of all of the 18 U.S.C. § 3553(a) factors.
We find no abuse of discretion in its sentence. See United
States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
III. Conclusion
We affirm Truong’s sentence.
AFFIRMED.