United States v. Seidner Eline

677 F. App'x 644
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 3, 2017
Docket15-14828, 15-15113 Non-Argument Calendar
StatusUnpublished

This text of 677 F. App'x 644 (United States v. Seidner Eline) 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. Seidner Eline, 677 F. App'x 644 (11th Cir. 2017).

Opinion

PER CURIAM:

Seidner Eline and Flore Dormevil appeal their prison sentences, imposed after they each pleaded guilty to conspiracy to commit access device fraud, as well as aggravated identity theft. 1 Eline and Dor-mevil appeal the district court’s 4-level enhancement for fifty or more victims under United States Sentencing Guidelines § 2B1.1(b)(2)(B) and its 2-level enhancement for the production of an unauthorized access device under § 2B1.1(b)(11)(B)(i). After careful review, we affirm.

I.

Eline and Dormevil pleaded guilty to conspiracy to commit access device fraud under 18 U.S.C. §§ 1029(b)(2) and aggravated identity theft under 18 U.S.C. § 1028A(a)(1). Their plea agreements contained statements of facts detailing their offenses. Eline and Dormevil used the personal information of employees of the city of North Miami to make unauthorized unemployment insurance claims and then receive benefits. At Eline’s residence, investigators found a thumb drive containing personal information for 300 people, as well as several unemployment-insurance debit cards in the names of others. Both Eline and Dormevil used at least two of these cards to withdraw money at automated teller machines. Their presentence investigation reports (“PSR”) detailed that Eline and Dormevil filed 218 claims and that the Florida unemployment insurance paid them benefits for seventy-five people.

At the sentencing hearing, the district court overruled objections made by Eline and Dormevil to a 4-level guideline enhancement for fifty or more victims and a 2-level enhancement for producing an unauthorized access device. Eline and Dor-mevil first argued that Florida’s unemployment insurance fund was the only victim. The government responded that Eline and Dormevil were paid for seventy-five claims, and suggested calling a witness to establish this fact. .Eline’s counsel replied, “I am not sure what the Government *646 wants to call a witness for but my position or my point is that the victim, there is really just one victim.” The district court asked both defendants about Guidelines § 2B1.1 Application Note 4(E), which defines “victim” in this section as “any individual whose means of identification was used unlawfully or without authority.” The court said this definition of victim suggests no testimony is necessary because the number of victims under that definition is undisputed. Dormevil’s counsel agreed with this point. The district court overruled the objection to the enhancement based on the number of victims, noting the Guidelines’ definition of “victim” together with the PSR’s finding that Eline and Dor-mevil used the personal information of seventy-five people to receive benefits.

Eline and Dormevil also objected to the enhancement for production of an unauthorized access device. They argued they did not produce the debit cards, but rather received preloaded cards from the state unemployment insurance fund. The district court overruled the objection, reasoning that the facts in the PSR were not in dispute and the access devices would not have been produced “but-for their actions.”

On appeal, Eline argues that the government produced no evidence at the sentencing hearing to support its request for either enhancement. Dormevil adopts Eline’s arguments. She also reasserts the arguments made against enhancement before the district court, namely that there was only one victim and that Eline and Dormevil did not produce the debit cards. Further, Dormevil argues for the first time on appeal that the enhancements are barred under Guidelines § 2B1.6 Applicar tion Note 2, which renders certain sentencing enhancements inapplicable when a defendant is also sentenced for aggravated identity theft.

II.

“This Court reviews de novo the interpretation and application of the Guidelines, and reviews underlying factual findings, including the District Court’s calculation of the number of victims, for clear error.” United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013). But “[w]e review sentencing arguments raised for the first time on appeal for plain error.” United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. 2009).

Eline and Dormevil argue that they challenged the lack of evidence to support the two guideline enhancements, triggering the government’s burden to prove each enhancement by a preponderance of the evidence. Because the government did not offer evidence at the sentencing hearing to support the enhancements, Eline and Dor-mevil argue the district court erred in applying them.

Eline and Dormevil rely on Rodriguez, 732 F.3d 1299, in support of their argument. In Rodriguez, the defendant objected to the fifty-or-more victim enhancement on the basis that the government had proven only ten victims. Id. at 1304. At the sentencing hearing, the government provided affidavits of forty-two victims and a summary chart listing more victims. Id. at 1304-05, We held a district court could not rely solely on a summary chart to establish the number of victims. Id. at 1305. We noted “[w]hen a defendant challenges one of the factual bases of his sentence the Government has the burden of establishing the disputed fact by a preponderance of the evidence.” Id. (quotation omitted and alteration adopted). Further, we said an attorney’s factual assertions alone do not constitute sufficient evidence. Id.

However, Rodriguez does not apply here. Unlike in Rodriguez, Eline and Dor-mevil made no factual attack on the num *647 ber of victims listed in the PSR. Instead, they disputed the definition of “victim” in the Guidelines. 2 Questions of Guidelines interpretation are questions of law, and thus do not require evidentiary support. See id. at 1305 (holding that interpretations of the Guidelines are reviewed de novo). Eline’s counsel even questioned the need for witnesses. And Dormevil’s counsel agreed with the court that testimony would not be necessary because the number of victims under the Guidelines’ definition was not disputed. The factual dispute over the number of victims and the argument that the government did not offer evidence to support that number are therefore raised for the first time on appeal. The district court did not commit plain error when it applied a guideline enhancement for fifty or more victims based on the undisputed statement in the PSR, nor did it plainly err by failing to ask the government to present evidence on this undisputed point. See United States v. White, 663 F.3d 1207, 1216 (11th Cir. 2011) (“The district court may base its findings of fact at sentencing on ... undisputed statements in the PSR.... ”).

Eline and Dormevil’s argument that enhancement for production of an unauthorized access device was improper because they only received preloaded cards from the state unemployment insurance fund also raised a legal, not factual, objection.

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Related

United States v. Bonilla
579 F.3d 1233 (Eleventh Circuit, 2009)
United States v. White
663 F.3d 1207 (Eleventh Circuit, 2011)
United States v. Erica Hall
704 F.3d 1317 (Eleventh Circuit, 2013)
United States v. Manuel Rodriguez
732 F.3d 1299 (Eleventh Circuit, 2013)
United States v. Xavier Taylor
818 F.3d 671 (Eleventh Circuit, 2016)

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677 F. App'x 644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-seidner-eline-ca11-2017.