United States v. Alisuretove

788 F.3d 1247, 2015 U.S. App. LEXIS 9545, 2015 WL 3541213
CourtCourt of Appeals for the Tenth Circuit
DecidedJune 8, 2015
Docket14-7050
StatusPublished
Cited by10 cases

This text of 788 F.3d 1247 (United States v. Alisuretove) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alisuretove, 788 F.3d 1247, 2015 U.S. App. LEXIS 9545, 2015 WL 3541213 (10th Cir. 2015).

Opinions

BRISCOE, Chief Judge.

Defendant Elvin Alisuretove1 pleaded guilty to one count of conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349, arising out of his role in a scheme that involved “skimming” debit card account information from convenience store gas pumps and then using that account information to make cash withdrawals from automated teller machines (ATMs). Alisuretove was sentenced to a term of imprisonment of 63 months, to be followed by a 36-month term of supervised release. He was also ordered to pay restitution in the amount of $240,682.27. Alisuretove now appeals, arguing that the district court, in determining his total offense level and the length of his sentence, erred in calculating the amount of loss associated with his conduct. Alisuretove also argues that the district court erred in determining the amount of restitution owed by Alisure-tove under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court’s calculation of loss associated with Alisuretove’s conduct, but reverse the district court’s calculation of the amount of restitution owed under the MVRA and remand for resentencing on that issue.

I

Factual background

In late 2012, the Durant, Oklahoma Police Department and several area banks began receiving numerous reports of debit card account fraud by way of unauthorized withdrawals from ATMs. The United States Secret Service was contacted about the matter and became involved in the investigation. It was determined that during November 2012, approximately 242 debit card accounts were compromised in the states of Oklahoma, Texas, and Kentucky. All of the debit cards related to those accounts, it was discovered, had been used to purchase fuel from Murphy’s USA, a gas station and convenience store in Durant, Oklahoma. The debit card account information and pin numbers were illegally obtained by a skimming device that had [1250]*1250been placed on a single gas pump at that Murphy’s USA store.

As the investigation continued, law enforcement discovered that skimming devices had also been placed on gas pumps at other gas stations in Conway and De-Queen, Arkansas, and Muskogee and Ida-bel, Oklahoma. Using video surveillance footage from various ATMs, law enforcement determined that Alisuretove, Kevin Konstantinov, and another individual were responsible for the fraudulent ATM withdrawals.

Ultimately, law enforcement determined that on several occasions between approximately April 2012 and January 2013, Kon-stantinov and Alisuretove traveled from their residences in Seattle, Washington, to Arkansas, Oklahoma and Texas. There, Konstantinov would place skimming devices on the interior of gas pumps. The skimming devices would be left in place for approximately one to two months, during which time the devices would record account information and pin numbers from debit and credit cards used by consumers to purchase fuel at the gas pump. Kon-stantinov would then retrieve the skimming devices, transfer the “skimmed” account information to counterfeit debit and credit cards, and, with the help of Alisure-tove and others, use those counterfeit cards to withdraw large amounts of cash from multiple ATMs. In total, the defendants compromised approximately 524 debit card accounts and made approximately 779 fraudulent withdrawals, totaling $348,376.80.2 In addition, the defendants attempted unsuccessfully to withdraw $12,480.00.

Procedural background

On July 9, 2013, a federal grand jury returned a three-count indictment against Alisuretove and Konstantinov. Count One charged both men with conspiracy to commit wire fraud, in violation of 18 U.S.C. § 1349. Count Two charged Konstantinov with aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(l). Count Three charged Alisuretove with aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(l).

On September 19, 2013, Alisuretove pleaded guilty, without benefit of a written plea agreement, to Count One of the indictment, i.e., the conspiracy charge. In doing so, Alisuretove expressly admitted that between April 2012 and January 2013, he traveled with Konstantinov to Oklahoma and elsewhere to carry out a scheme that they had devised to defraud or obtain money by false or fraudulent pretenses from other people.

The probation office prepared a presen-tence investigation report (PSR). In computing the appropriate offense level, the PSR concluded that, pursuant to U.S.S.G. § lB1.3(a), Alisuretove was “accountable for his actions and the actions of [Konstan-tinov]” and thus “the total intended loss attributed to [Alisuretove] [wa]s $360,856.80.” ROA, Yol. 3 at 16. This intended loss amount in turn resulted in a 12-level increase to Alisuretove’s base offense level. After imposing additional increases related to the number of victims, the use of sophisticated means, and the production of unauthorized access devices, and after applying a 3-level decrease for acceptance of responsibility, the PSR arrived at a total offense level of 26. Based upon this total offense level and a criminal history category of I (Alisuretove had no prior criminal convictions or arrests), the PSR arrived at a Guidelines imprisonment range of 63 to 78 months. The PSR also [1251]*1251determined that the MVRA required that restitution be imposed.

Alisuretove filed written objections to certain portions of the PSR. In particular, Alisuretove asserted that, contrary to the factual allegations contained in the PSR, he “did not place skimming devices on gas pumps” or “transfer the stolen information to any debit/credit cards.” Id. at 25. Ali-suretove did concede, however, that he “served as a driver” and “used counterfeit cards to withdraw money from accounts and ... [wa]s guilty of conspiracy.” Id. In turn, Alisuretove argued that the total intended loss amount listed in the PSR ($360,856.80) was “an overstatement of [his] jointly undertaken criminal activity with ... Konstantinov.” Id. at 26. In support, Alisuretove asserted that “Kon-stantinov was very secretive as to whether there were any other persons engaged in [the] criminal activity” and “[b]eeause ... Alisuretove was only involved as a driver and as a person whom would withdraw funds on those occasions at the direction of ... Konstantinov, it [could not] be said that the actions of any other participants should be considered” reasonably foreseeable to him for purposes of U.S.S.G. § lB1.3(a). Id. “Thus,” he argued, “the amount of loss” attributable to him “should be corrected to reflect only loss that [wa]s connected directly to [his] role as a driver and withdrawer of funds.” Id. Relatedly, Alisuretove argued that “the number of victims should [also] be calculated using [his] involvement as a driver and as a person whom [sic] would withdraw funds on certain occasions at the direction of ... Konstantinov.” Id. at 26-27.

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Cite This Page — Counsel Stack

Bluebook (online)
788 F.3d 1247, 2015 U.S. App. LEXIS 9545, 2015 WL 3541213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alisuretove-ca10-2015.