United States v. Rueda

Summary

The First Circuit held that under U.S.S.G. §2B1.1, Application Note 3(F)(i), a $500 minimum loss per access device applies to each counterfeit or unauthorized credit card number, regardless of whether the number was actually used or could be shown to successfully obtain value. The court rejected the defendant's arguments that the government must prove each number "can be used" under 18 U.S.C. §1029(e)(1) or that the $500 minimum only applies to devices actually charged. The court affirmed the district court's loss calculation of $1,290,000 (2,580 numbers × $500) based on numbers linked to financial institutions and found with skimming equipment, even though actual losses were only $24,673.60, and upheld the variant sentence of four months' imprisonment.

Holdings

1. The court held that Application Note 3(F)(i) incorporates the definitions of counterfeit and unauthorized access devices from 18 U.S.C. §1029(e)(2)-(3), which include expired, revoked, canceled, or fictitious devices, and that the $500 minimum applies even without a separate usability showing, given the record.
2. The court held that the plain language of Application Note 3(F)(i) provides that loss includes both 'any unauthorized charges made' and 'shall be not less than $500 per access device,' meaning the $500 minimum applies regardless of whether the device was actually charged.

Questions Presented

1. Whether the district court erred in attributing a $500 minimum loss to each of 2,580 credit card numbers under U.S.S.G. §2B1.1, Application Note 3(F)(i), without requiring proof that each number could be used to obtain money, goods, services, or other value.
2. Whether Application Note 3(F)(i) requires that the $500 minimum loss be attributed only to access devices that were actually used to make unauthorized charges.

Disposition

affirmed