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Government failed to present evidence of number of victims to support a sentencing guideline enhancement

In U.S. v Washington the defendant pleaded guilty to conspiracy to traffic in unauthorized credit cards and using and trafficking in unauthorized credit card numbers in violation of 18 U.S.C. § 1029. The presentence investigation report recommended an enhancement under sentencing guidelines § 2B1.1(b)(2)(C) because the number of victims exceeded 250, the threshold number for a 6-level enhancement. Washington disputed the number of victims and requested that the government identify the victims by name. The defendant noted the government only identified 70 banks and financial institutions and requested hard evidence of the 250 or more victims. He also disputed the length of time he was involved in the conspiracy.
At the sentencing hearing, the government did not present any evidence identifying 250 or more victim and only argued that there were thousands of individuals who had their credit cards stolen. The district court ruled for the enhancement noting that it previously applied the enhanced the codefendants’ sentences.

The 11th Circuit held that the government has the burden of introducing sufficient and reliable evidence to prove the necessary facts by a preponderance of the evidence. The government did not meet its burden because it did not introduce any evidence to support the enhancement. While the government told the sentencing court there were over 250 individuals who have been victims of stolen credit card information and other related account information during the time the defendant was involved in the scheme, the representation was insufficient. Absent a stipulation by the parties, an attorney’s factual assertions at a sentencing hearing do not constitute evidence that the district court can rely upon in the face of challenged conclusions of the presentence investigation report. Even though the district court had applied the enhancement to the coconspirators, those findings could not serve as a basis for applying the enhancement to the defendant because the defendant objected. The defendant should have been given an opportunity to rebut the evidence or to generally cast doubt on its reliability. Furthermore, the defendant was not a participant of the conspiracy during the entire duration and without the information about the identities of the victims and the dates of the theft of their credit card information, the government failed to meet its burden of showing that the fraud scheme involved more than 250 victims during the time of the defendant’s involvement.

On remand, the 11th Circuit ruled that the government would not be allowed to prove that there were more than 250 or more victims for whom the defendant was responsible. The 11th Circuit found that the government was aware of the defendant’s objection and nothing prevented the government from putting on the evidence at the sentencing hearing. A party that carries the burden on a contested sentencing issue will generally not get the opportunity to try again on remand if the evidence is found insufficient on appeal. While the 11th Circuit has the discretion to permit the government a “second bite at the apple,” normally a remand for further proceedings is inappropriate when the issue was already before the district court and the parties had an opportunity to introduce evidence. Here the government failed to introduce any evidence concerning the number of victims.

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