United States v. Craig Matthew Feigin

365 F. App'x 180
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 4, 2010
Docket09-11885
StatusUnpublished
Cited by1 cases

This text of 365 F. App'x 180 (United States v. Craig Matthew Feigin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Craig Matthew Feigin, 365 F. App'x 180 (11th Cir. 2010).

Opinion

PER CURIAM:

Craig Matthew Feigin appeals his thirty-month, above-guideline sentence, imposed after he pled guilty to unauthorized access of a computer and obtaining information from a protected computer. After careful review of the record and the parties’ briefs, we discern no reversible error and AFFIRM.

I. BACKGROUND

A federal grand jury indicted Feigin on one count of intentionally accessing a computer without authorization and obtaining information from a protected computer in furtherance of a criminal act, in violation of 18 U.S.C. § 1030(a)(2) and (c)(2)(B)(ii). Rl-1. Feigin subsequently pled guilty pursuant to a written plea agreement. Rl-29. In the plea agreement, Feigin indicated that he understood the statutory penalties he faced and that the court had the sole discretion to determine his sentence after consideration of the Sentencing Guidelines. Id. at 2-3. In exchange for Feigin’s plea, the government “agree[d] not to recommend a specific sentence,” but:

reserve[d] the right to advise the District Court and any other authorities of its version of the circumstances surrounding the commission of the offense ... including correcting any misstatements by defendant or defendant’s attorney, and reserves the right to present evidence and make arguments pertaining to the application of the sentencing guidelines and the considerations set forth in Title 18, United States Code, Section 3553(a).

Id. at 3.

As part of the plea agreement, Feigin stipulated to the following facts. Feigin secretly installed several computer software programs, including one named “webcamspyhacker,” on a computer belonging to an adult female, Marisol Garcia, without her knowledge. Rl-29-2 at 1. These programs allowed Feigin to control the web camera on Garcia’s computer remotely and to view and record her activities without her knowledge. Id. The images obtained captured Garcia and other persons in various stages of dress and undress and were stored on a computer server located in the Czech Republic. Id. at 1-2. Feigin created a website through which he advertised and sold the “webcam-spyhacker” software program to other individuals. Id. at 2.

The probation officer prepared a presen-tence investigation report (“PSI”), in which he calculated Feigin’s base offense level at six, pursuant to U.S.S.G. § 2Bl.l(a)(2), and applied a two-level enhancement under § 2Bl.l(b)(9) because Feigin’s offense involved the relocation of a fraudulent scheme to another jurisdiction and/or sophisticated means. The probation officer increased Feigin’s offense level to twelve, as required by § 2Bl.l(b)(9), and applied a two-level increase under § 3B1.3 because his offense involved a special skill, namely, knowledge of computer software and hardware. After receiving a two-level decrease for acceptance of responsibility under *182 § 3El.l(a), Feigin had a total adjusted offense level of twelve, which, together with a criminal history category of I, yielded a guideline range of ten to sixteen months of imprisonment. Feigin also faced a statutory maximum term of five years of imprisonment under 18 U.S.C. § 1030(a)(2) and (c)(2)(B)(ii). The probation officer noted additionally that Garcia had submitted a victim impact statement, in which she told the court that she suffered from insomnia, paranoia, and anxiety, and had issues with trust and insecurity as a result of Feigin’s conduct.

At the sentencing hearing, Feigin made no objections to the PSI but requested that the court vary downward from the guideline range and sentence him to time served (three weeks) and supervised release with special conditions that would ensure he did not misuse any technology to victimize others. R4 at 2-6. Feigin personally apologized to Garcia and to the court for his actions. Id. at 6.

The government then called Garcia, who testified that she met Feigin through her sister-in-law, who lived with Feigin’s girlfriend, and gave him access to her computer because he had a reputation for being very knowledgeable about computers. Id. at 7, 8-9, 15. About a month later, she noticed that the computer was “moving on its own,” and took it to a friend of hers who was an information technology (“IT”) specialist. Id. at 10. The IT professional explored Garcia’s computer and found installed on it a program that allowed others to access the computer remotely as well as motion detection software that caused the computer’s web camera to automatically take pictures whenever she moved in front of her computer. Id. at 10-11. The IT professional tracked the pictures to a remote server, which contained over 10,000 pictures of her. Id. at 11. Garcia stated that she was captured nude in some of the photographs. Id. Garcia subsequently searched the internet and found that Feig-in had posted a video of her vrith the comment: “This is my girlfriend who at the time had no idea that I was filming her. Afterwards[,] we had a big laugh about it.” Id. at 11-12 (quotation marks omitted). Garcia described the video as a sales pitch, as Feigin had been promoting the software programs. Id. at 12. She stated that some people had contacted her and told her that she “deserved what [she] got; that they wanted to see the pictures; [and that] they wanted to see what the whole hype was about.” Id. at 13. Garcia testified that she has always had anxiety, but that it had “kicked in ... hard” after being victimized by Feigin. Id. at 13. She stated that she was receiving counseling and taking medication to treat her anxiety. Id. at 13.

The government’s counsel then made the following statement to the court:

I’m very concerned, sir, that as unique as it may be in the age of technology in which we live, this is not the [last] time that the Court is going to be addressing this.
So I’m concerned with respect to that, the precedence of the case, itself, and how this case will be looked at in the future and how the crime, itself, will be looked at in the future.
Sir, the principal concern that I have, as I go through the [PSI] and I look at the guidelines, is the fact that this case and this crime, itself, is looked at as a financial crime when in truth and in reality, it is anything but a financial crime. This is really a crime upon a person. It is an invasion of someone’s privacy. And it’s a crime that has an impact on a victim and the kind of impact that isn’t temporary and isn’t fleeting and isn’t just going to go away, but [is] lasting and permanent.
*183 This young woman has been victimized in this case and she has gotten fallout ... from people who have seen this and solicited comments from her but that image is not capturable again. You can’t recover it. This is something that happened in the privacy of her own bedroom and that privacy being violated ...

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365 F. App'x 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-craig-matthew-feigin-ca11-2010.