UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4893

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JASON A. LEWIS,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,

Chief District Judge. (3:06-cr-00384-RJC)

Submitted: July 11, 2008 Decided: August 19, 2008

Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

S. Frederick Winiker, III, WINIKER LAW FIRM, PLLC, Charlotte, North

Carolina, for Appellant. Gretchen C. F. Shappert, United States

Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United

States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Jason A. Lewis was convicted by a jury of one count of

conspiracy to commit aggravated identity theft, access device

fraud, mail fraud, and bank fraud, in violation of 18 U.S.C. § 371

(2000) (Count One); eight counts of aggravated identity theft, in

violation of 18 U.S.C. §§ 2, 1028(a)(1) (2000) (Counts Two - Nine);

one count of access device fraud, in violation of 18 U.S.C. §§ 2,

1029(a)(2) (2000) (Count Ten); one count of mail fraud, in

violation of 18 U.S.C. § 1341 (2000) (Count Eleven); and seven

counts of bank fraud, in violation of 18 U.S.C. §§ 2, 1344 (2000)

(Counts Twelve - Eighteen). He appeals his sentence. We affirm.

In the presentence report (PSR), the probation officer

grouped Counts One and Ten through Eighteen pursuant to U.S.

Sentencing Guidelines Manual (USSG) § 3D1.2(d) (2006). To

determine the amount of loss attributable to Lewis, the probation

officer used the $27,000 daily credit limit on the fraudulent debit

card for each of the six days Lewis possessed the card, for a total

of $162,000 as intended loss. The PSR recommended a base offense

level of seven pursuant to § 2B1.1(a)(1); a ten-level enhancement

pursuant to § 2B1.1(b)(1)(F) based on the intended loss of

$162,000; a two-level enhancement pursuant to § 3B1.1(c) because

Lewis was the organizer or leader of these offenses; and other

enhancements not in dispute on appeal. The total offense level was

twenty-five, which combined with Lewis’ criminal history category
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of I yielded a sentencing range for the grouped counts of fiftyseven to seventy-one months. The Guidelines sentence on Counts Two

through Nine was two years of imprisonment that could run

concurrently with each other but must run consecutively to the

sentence on the grouped counts.

Lewis objected to the intended loss calculation. He

contended that the loss should be limited to the amount obtained or

that he attempted to obtain, which was between $5000 and $10,000,

which yielded only a two-level enhancement. He also asserted that

the use of the credit limit of the card multiplied by the six days

he possessed the card was excessive, as the indictment charged

actions related to the card on only two days. Lewis also objected

to the enhancement for his role in the offense, asserting that he

and his co-defendant acted together with neither being a leader.

At sentencing the district court sustained Lewis’ objection to an

enhancement for obstruction of justice, which reduced his offense

level on the grouped counts to twenty-three and reduced the

Guidelines range to forty-six to fifty-seven months. The court

overruled all other objections to the PSR and sentenced Lewis to

concurrent fifty-seven-month terms of imprisonment on Counts One

and Ten through Eighteen and twenty-four months on Counts Two

through Nine, concurrent with each other but consecutive to the

sentence on counts One and Ten through Eighteen, for a total

sentence of eighty-one months of imprisonment, three years of
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supervised release, an $1800 special assessment, and restitution of

$1410.88. 

Lewis first argues that the district court erroneously

enhanced his offense level by two levels for holding a leadership

role. The district court’s determination that the defendant

warrants a sentence enhancement is reviewed for clear error.

United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002).

“Leadership over only one other participant is sufficient as long

as there is some control exercised.” United States v. Rashwan, 328

F.3d 160, 166 (4th Cir. 2003). Our review of the record leads us

to conclude that the district court did not err in imposing the

enhancement for a leadership role.

Lewis also argues that the district court erred in

determining the intended loss amount used to calculate his offense

level. He argues that use of the daily credit limit of the debit

card as the intended loss was not supported by the record, and that

imposition of a ten-level enhancement as a result of using this

amount does not adequately take into account the factors in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2008). This court reviews de

novo the district court’s legal interpretation of the term “loss”

as used in the Sentencing Guidelines. United States v. Castner, 50

F.3d 1267, 1274 (4th Cir. 1995). The district court’s

determination of the amount of loss is a factual matter reviewed

for clear error. Id. Enhancements under § 2B1.1(b) are determined
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by the amount of loss suffered as a result of the fraud. The

amount of loss is the greater of the actual loss or the intended

loss. USSG § 2B1.1, comment. (n.3(A)). The intended loss amount

may be used, “even if this exceeds the amount of loss actually

possible, or likely to occur, as a result of the defendant’s

conduct.” United States v. Miller, 316 F.3d 495, 501-03 (4th Cir.

2003).

When the loss must be estimated, “the court need only

make a reasonable estimate of the loss.” USSG § 2B1.1, comment.

(n.3(C)). In offenses involving unauthorized access devices, other

than telecommunications devices, the loss is not less than $500 per

access device. USSG § 2B1.1, comment. (n.3(F)(I)). The Government

argues that the district court properly used the daily credit limit

for the debit card to determine the intended loss, citing decisions

from three circuits that approved this application of the

Guideline. See United States v. Manoocher Nosrati-Shamloo, 255

F.3d 1290, 1291-92 (11th Cir. 2001); United States v. Egemonye, 62

F.3d 425, 428-29 (1st Cir. 1995); United States v. Sowels, 998 F.2d

249, 251 (5th Cir. 1993). We find this reasoning persuasive, and

conclude that the district court did not clearly err in using the

daily credit limit multiplied by the number of days Lewis possessed

the debit card as an estimate of intended loss.

Lewis’ second argument concerning the amount of loss is

also without merit. Although it is not clearly articulated, he
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apparently argues that in imposing a sentence based on the tenlevel enhancement for amount of loss, the district court did not

adequately consider the § 3553(a) factors. We review a sentence

for reasonableness, applying an abuse of discretion standard.

Gall v. United States, 128 S. Ct. 586, 597 (2007). As discussed

above, Lewis’ Guidelines range was correctly calculated, and the

record reveals that the district court explicitly stated that it

considered the § 3553(a) factors, and explained its reasons for

selecting the sentence imposed. Lewis’ sentence is thus without

procedural defect. This court presumes that a sentence imposed

within the properly calculated Guidelines range is reasonable.

United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008); see Rita v.

United States, 127 S. Ct. 2456, 2462-69 (2007) (upholding

presumption of reasonableness for within-Guidelines sentence). The

record contains nothing that indicates the district court abused

its discretion in selecting the sentence.

Accordingly, we affirm Lewis’ sentence. We dispense with

oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED