USA v. Carlos Ernesto Del Pino

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11190
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ERNESTO DEL PINO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:20-cr-00009-AW-GRJ-1
____________________
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2 Opinion of the Court 21-11190
Before JORDAN, LAGOA, and EDMONDSON, Circuit Judges.
PER CURIAM:
Carlos Del Pino appeals his conviction for aggravated iden-
tity theft, in violation of 18 U.S.C. § 1028A(a)(1).1 Del Pino also
appeals his total 84-month sentence. No reversible error has been
shown; we affirm.
Briefly stated, Del Pino was involved in a scheme to steal
credit-card numbers by using skimming devices he installed on gas
pumps. A federal grand jury returned an indictment charging Del
Pino with knowingly possessing with intent to defraud 15 or more
counterfeit and unauthorized access devices, in violation of 18
U.S.C. § 1029(a)(3) (Count One), and with aggravated identity theft
during and in relation to Count One, in violation of 18 U.S.C. §
1028A(a)(1) (Count Two). Del Pino pleaded guilty to Count One
and proceeded to a bench trial on Count Two.
Following a bench trial, the district court found Del Pino
guilty of aggravated identity theft as charged in Count Two. In
doing so, the district court rejected Del Pino’s argument that sim-
ultaneous convictions under both 18 U.S.C. §§ 1029(a)(3) and
1 Del Pino does not appeal his conviction for possession of 15 or more unau-
thorized access devices.
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21-11190 Opinion of the Court 3
1028A(a)(1) violated the Double Jeopardy Clause. The district
court sentenced Del Pino to a below-guidelines sentence of 60
months’ imprisonment on Count One and to a mandatory consec-
utive 24-month sentence on Count Two.
On appeal, Del Pino first challenges his aggravated-identity-
theft conviction on double-jeopardy grounds. We review
de novo
possible violations of the Double Jeopardy Clause.
See United
States v. Smith, 532 F.3d 1125, 1126 (11th Cir. 2008).
The Double Jeopardy Clause provides that “[n]o person
shall . . . be subject for the same offence to be twice put in jeopardy
of life or limb.” U.S. Const. amend. V. The Double Jeopardy
Clause “serves principally as a restraint on courts and prosecutors,”
not as a restraint on the legislature’s authority “to define crimes
and fix punishments.”
See Brown v. Ohio, 432 U.S. 161, 165 (1977).
“With respect to cumulative sentences imposed in a single trial, the
Double Jeopardy Clause does no more than prevent the sentencing
court from prescribing greater punishment than the legislature in-
tended.”
Missouri v. Hunter, 459 U.S. 359, 366 (1983).
In assessing a possible double-jeopardy violation, we look
first to legislative intent.
See United States v. Bonilla, 579 F.3d
1233, 1241 (11th Cir. 2009). “If the statutes under which the de-
fendant was sentenced specifically authorize cumulative punish-
ments for the same offense, a court may impose cumulative pun-
ishment without running afoul of the Double Jeopardy Clause.”
Id.
Only if “the legislature’s intent is unclear” do we apply the “same
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4 Opinion of the Court 21-11190
elements” test established in
United States v. Blockburger, 284 U.S.
299 (1932).
Id.
Section 1029(a)(3) makes it unlawful to “knowingly and with
intent to defraud possess[] fifteen or more devices which are coun-
terfeit or unauthorized access devices.” 18 U.S.C. § 1029(a)(3). An
“access device” is defined to include “any card, . . . account number,
. . . or other means of account access that can be used . . . to obtain
money, . . . or that can be used to initiate a transfer of funds . . . .”
18 U.S.C. § 1029(e)(1).
The aggravated-identity-theft statute provides that “[w]ho-
ever,
during and in relation to any felony violation enumerated in
subsection (c), knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another person shall,
in addition to the punishment provided for such felony, be sen-
tenced to a term of imprisonment of 2 years.” 18 U.S.C. §
1028A(a)(1) (emphasis added). The felony violations enumerated
in subsection (c) include “a felony violation of . . . any provision
contained in [Chapter 47 of Title 18] (relating to fraud and false
statements), other than this section or section 1028(a)(7).” 18
U.S.C. § 1028A(c)(4). Del Pino’s felony violation of 18 U.S.C. §
1029(a)(3) -- an offense contained in Chapter 47 -- falls clearly within
the underlying offenses identified in subsection (c).
See id. §§
1028A(c)(4), 1029.
The plain statutory language demonstrates unambiguously
that Congress authorized the cumulative punishment at issue in
this appeal: a two-year penalty for aggravated identity theft in
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21-11190 Opinion of the Court 5
violation of section 1028A(a)(1) “in addition to” the sentence im-
posed for a felony violation of section 1029(a)(3).
See Bonilla, 579
F.3d at 1244 (rejecting a double-jeopardy challenge to an access-
device-fraud conviction under 18 U.S.C. § 1029(a)(2): because a vi-
olation of section 1029(a)(2) was an enumerated felony violation
under subsection (c), “the legislature specifically authorized cumu-
lative punishment” under both 18 U.S.C. §§ 1029(a)(2) and
1028A(a)(1)).
On appeal, Del Pino contends that our decision in
Bonilla is
inapplicable to this appeal because
Bonilla involved a conviction
under section 1029(a)(2), not section 1029(a)(3). We disagree.
Given the broad scope of felony violations enumerated in subsec-
tion (c) of the aggravated-identity-theft statute, we cannot con-
clude that Congress intended to treat differently underlying felony
convictions under section 1029(a)(2) from convictions under
1029(a)(3). For purposes of our double-jeopardy review, we see no
material difference between the statute-of-conviction presented in
Bonilla and the statute-of-conviction involved in this appeal. We
reject Del Pino’s double-jeopardy argument and affirm Del Pino’s
conviction for aggravated identity theft.
Del Pino next contends (for the first time) that the district
court erred in applying the commentary to U.S.S.G. § 2B1.1 in cal-
culating Del Pino’s advisory guidelines range. Under section 2B1.1,
a defendant’s base offense level is increased based on the amount
of loss involved in the offense.
See U.S.S.G. § 2B1.1(b)(1). In cases
involving unauthorized access devices, Application Note 3(F)(i)
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6 Opinion of the Court 21-11190
instructs courts to assign a minimum loss value of $500 to each un-
authorized access device.
See U.S.S.G. § 2B1.1, comment.
(n.3(F)(i)). Relying on a recent decision from the Sixth Circuit,2
Del Pino argues that Application Note 3(F)(i) constitutes an unau-
thorized expansion of section 2B1.1.
Del Pino’s argument challenging the district court’s use of
Application Note 3(F)(i) is foreclosed by the invited-error doctrine.
“It is a cardinal rule of appellate review that a party may not chal-
lenge as error a ruling or other trial proceeding invited by that
party.”
United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006).
The invited-error doctrine “is implicated when a party induces or
invites the district court into making an error.”
Id. “Where invited
error exists, it precludes a court from invoking the plain error rule
and reversing.”
Id.
Here, the Presentence Investigation Report (“PSI”) calcu-
lated a total loss amount for Del Pino’s offense using the $500 mul-
tiplier set forth in Application Note 3(F)(i). This calculation re-
sulted in a total loss amount of $7,315,500 (14,631 unauthorized ac-
cess devices x $500). The PSI thus concluded that Del Pino was
subject to an 18-level enhancement under section 2B1.1(b)(1)(J): an
enhancement that corresponds to a total loss amount of more than
$3.5 million and less than $9.5 million.
2
United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021). Decisions of other
Circuit Courts are entitled to some respect, but to no deference.
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21-11190 Opinion of the Court 7
In his objections to the PSI, Del Pino raised no challenge to
the PSI’s calculation of the total loss amount. To the contrary, Del
Pino asserted expressly that his total offense level should be calcu-
lated to include an 18-level enhancement under U.S.S.G. §
2B1.1(b)(1)(J).
Del Pino also moved for a downward variance on grounds
that the guidelines calculation overstated the seriousness of his of-
fense. Del Pino argued that a downward variance was appropriate
in the light of the disparity between the actual loss amount result-
ing from Del Pino’s offenses ($46,736.11) and the loss amount de-
rived by applying the sentencing guidelines ($7,315,500).
In making his downward-variance argument, Del Pino as-
serted again that the guidelines calculation included an 18-level en-
hancement under section 2B1.1(b)(1)(J) based upon a “presumed
loss amount” of at least $3.5 million. Del Pino explained that this
loss amount was driven by the $500 multiplier in Application Note
3(F)(i). Del Pino also said expressly that “under the United States
Sentencing Guidelines, Mr. Del Pino is responsible for a loss of
$7,315,500.”
Given this record, Del Pino induced or invited the district
court to apply Application Note 3(F)(i) in calculating the applicable
loss amount under the sentencing guidelines. As a result, Del Pino
cannot now challenge as erroneous the district court’s use of Ap-
plication Note 3(F)(i) in determining that Del Pino was subject to
an 18-level enhancement.
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8 Opinion of the Court 21-11190
AFFIRMED.
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