NINTH CIRCUIT FINDS THAT DISTRICT COURT ERRED IN CALCULATING INTENDED LOSS AMOUNT

United States v. Chew, No. 18-50301 (9th Cir. Feb. 19, 2020)

Chew pled guilty to possession of fifteen or more unauthorized access devices, in violation of 18 U.S.C. 1029(a)(3), and aggravated identity theft, in violation of 18 U.S.C. 1028(a)(1). At sentencing, the district court applied a 12-level enhancement under U.S.S.G. 2B1.1(b)(1)(G) based on an intended loss of $518,558.67. The district court based its calculations of intended loss on a finding that Chew possessed 1,036 access devices. Although Chew possessed a spreadsheet with information for 1,036 bank account, debit card, and credit card numbers, the government never offered any evidence of the usability as to those accounts. See United States v. Onyesoh, 674 F.3d 1157, 1159-60 (9th Cir. 2012) (“For an unauthorized access device whose usability is not readily apparent” to be the basis of a sentencing enhancement, the government must show “some proof” that the device is usable, or “capable of obtaining something of value.”).

Chew appealed the district court’s imposition of a 75-month sentence to the Ninth Circuit Court of Appeals. On appeal, Chew argued that the district court erred in: 1) applying a 12-level enhancement under U.S.S.G. 2B1.1(b)(1)(G); 2) multiplying the number of access devices by $500 to calculate the amount of intended loss; 3) applying a preponderance of evidence burden of proof to the sentencing enhancement for the number of victims; 4) finding that the government established evidence that Chew’s criminal activity involved more than ten victims; 5) abusing its discretion by failing to consider mitigating factors or address Chew’s non-frivolous arguments at sentencing; 6) the substantive reasonableness of the sentence, and 7) issuing a written judgment that contained four conditions that it did not include in its oral pronouncement.

In reviewing Chew’s appeal, the Ninth Circuit affirmed on all but Chew’s first and seventh ground for relief. As to the 12-level enhancement, the appellate court determined that the government did not verify any of the accounts or card numbers, nor provide evidence that any of Chew’s victims were included in the spreadsheet. Nor did Chew’s admissions regarding his possession of the information in the spreadsheet indicate that the information was usable. Finding that the district court erred in calculating the total intended loss, the Ninth Circuit vacated Chew’s sentence and remanded for resentencing.

Turning to Chew’s seventh claim, the court found that the district court erred in issuing a written judgment that contained four conditions that were not included in its oral pronouncement of sentence, including three post-release conditions that the court had found to be unconstitutionally vague. Accordingly, the Ninth Circuit instructed the district court to amend written judgment to conform with the oral pronouncement of sentence on remand.

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