USA v. Neftali Esau Billy Oquendo

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14462
Non-Argument Calendar
________________________
D.C. Docket No. 6:14-cr-00114-GKS-GJK-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NEFTALI ESAU BILLY OQUENDO,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 19, 2016)
Before WILLIAM PRYOR, JORDAN and JULIE CARNES, Circuit Judges.
PER CURIAM:
Case: 14-14462 Date Filed: 01/19/2016 Page: 1 of 3

-- 1 of 3 --

2
Neftali Esau “Billy” Oquendo appeals his sentence of 90 months of
imprisonment, which the district court imposed after he entered a plea of guilty to
conspiring to commit access device fraud. 18 U.S.C. § 1029(b)(2). Oquendo
challenges the procedural and substantive reasonableness of his sentence. We
affirm.
We review the reasonableness of a sentence under a deferential standard for
abuse of discretion. United States v. Azmat, 805 F.3d 1018, 1047 (11th Cir. 2010).
We ensure that the district court committed no significant procedural error, such as
failing to calculate the guideline range or to explain the chosen sentence, and then
we examine whether the sentence is substantively reasonable in the light of the
totality of the circumstances. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,
597 (2007). The abuse of discretion standard “allows a range of choice for the
district court, so long as that choice does not constitute a clear error of judgment.”
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quoting
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc)). We will
not disturb the sentence unless “we are left with the definite and firm conviction
that the district court committed a clear error of judgment in weighing the
§ 3553(a) factors by arriving at a sentence that lies outside the range of reasonable
sentences dictated by the facts of the case.” Id. at 1190 (internal quotation marks
and citation omitted).
Case: 14-14462 Date Filed: 01/19/2016 Page: 2 of 3

-- 2 of 3 --

3
Oquendo’s sentence is procedurally and substantively reasonable. Oquendo
downloaded to a laptop the credit card data of retail customers that a coconspirator
copied onto a skimming device; stored blank credit cards and access device
equipment at his home; and was compensated with counterfeit credit cards encoded
with stolen identity information. Oquendo argues that the district court failed to
explain its chosen sentence, but the district court explained at sentencing and in its
statement of reasons that it imposed the maximum statutory penalty to punish
Oquendo’s “onerous and terrible crime,” which involved 2,100 victims and losses
exceeding $1.2 million, and to deter future “access fraud and skimming.” See 18
U.S.C. § 3553(a). The district court reasonably determined that a variance three
months above the high end of Oquendo’s guideline range of 70 to 87 months was
required to impose adequate punishment, to promote respect for the law, and to
protect the public. See United States v. Rodriguez, 628 F.3d 1258, 1264–65 (11th
Cir. 2010). The district court did not abuse its discretion by sentencing Oquendo to
90 months of imprisonment.
We AFFIRM Oquendo’s sentence.
Case: 14-14462 Date Filed: 01/19/2016 Page: 3 of 3

-- 3 of 3 --