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Sentence increase upheld for possession of a credit card skimmer

In U.S. v. Cruz, the defendant and her brother obtained credit cards numbers which they purchased from a waiter working at a Flanigan’s restaurant in Hialeah, Florida. Using a credit card skimming device, the waiter sold the skimmed numbers to a codefendant who was married to Cruz. Cruz’s sister also a codefendant worked at a Target. At one point after a complaint by a customer about an authorized purchase of $200 on the credit card, Target security began to focus on the sister. While working the register they observed her and became suspicious because she was continuously selling to the same man buying stacks of gift cards and other merchandise. She sold 65 gift cards and 50 “other” other transactions involving the same two customers. After she was interview by Metro-Dade Police, she admitted selling to her brother who came into the store to use credit cards she knew to be fraudulent and did not belong to him.

They were convicted of aggravated identity theft. The identity statute, 18 U.S.C. §1028(a)(1) mandates a 2 year additional consecutive sentence for a defendant convicted of a predicate crime if during (or in relation to) the commission of the predicate crimes, “the offender knowingly transfers, possess, or uses, without legal authority, a means of identification of another person.” The 11th Circuit found that the defendant’s underlying offense of using an unauthorized access devise (section 1029) was a predicate offense for purposes of §1028A and were subject to the 2 year consecutive sentence in addition to the guidelines sentence. In calculating the guidelines sentence, the district court gave them a two- point increase for the use of a device-making equipment under U.S.S.G. §2B1.1(b)(10)(A)(i).

The defendants argued this was double counting and found support in the commentary of U.S.S.G. §2B1.6 which limits the application of §2B1.1(b)(10) to avoid double counting. That section states that the guidelines sentence for an aggravated identity theft conviction under §1028 is the statutory term of imprisonment. The commentary prohibited applying any specific offense characteristics for “the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense” because the sentence under 2B1.6 accounts for this relevant conduct. The defendant interpreted this commentary to prohibit a guidelines enhancement for relevant conduct that includes the use of a device-making equipment. The 11th Circuit did not agree and found that §2B1.6 allows for an enhancement for the use of device-making equipment. The court interpreted the commentary of §2B1.6 to prohibit the enhancement where the relevant conduct pertains to the transfer, possession or use of a means of identification. Here, the defendants’ enhancements were premised on relevant conduct related to the device-making equipment. The court found the commentary did not prohibit this relevant conduct from serving as the basis for the increase. The evidence supported the enhancement given the sister’s knowledge her codefendant brother bought merchandise using credit cards that did not belong to him. There was also circumstantial evidence that the sister knew about the skimmer because she lived at the same address where it was found.