FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-10446 Plaintiff-Appellee,

D.C. No. 2:06-CRv.  00487-FCD-1

TIMOTHY TRUONG,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Argued and Submitted

November 3, 2009—San Francisco, California

Filed December 1, 2009

Before: Betty B. Fletcher, William C. Canby, Jr. and

Susan P. Graber, Circuit Judges.

Per Curiam Opinion

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COUNSEL

Lawrence G. Brown, Acting United States Attorney, and Matthew D. Segal (argued), Assistant United States Attorney,

Office of the United States Attorney, Sacramento, California,

for the plaintiff-appellee.

Joseph J. Wiseman (argued), Law Offices of Joseph J. Wiseman, Davis, California, for the defendant-appellant.

UNITED STATES v. TRUONG 15661
OPINION

PER CURIAM:

Defendant Timothy Truong appeals his ten year sentence

for possessing fifteen or more unauthorized access devices

with intent to defraud. He argues that by treating retail gift

cards as access devices, the district court wrongly calculated

the advisory sentence under the Guidelines. He also argues

that the sentence the district court imposed was unreasonable.

We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Background

The purchaser of a gift card loads money onto the card and

electronically activates it for use. An activated card can be

used to purchase goods from the retailer who sold the card.

Many retail gift cards contain a printed panel that can be

scratched off to reveal the card’s unique personal identification number, or PIN. The customer can use the PIN to track

how much money is left on the card.

Timothy Truong would steal gift cards from retail stores.

With special equipment, Truong would capture the information that is stored magnetically on each gift card. He would

also scratch off a panel to reveal each card’s PIN. After duplicating the card (plastic shaped like a credit card), he would

return the duplicates to the shelves from which he had stolen

the originals. He kept the originals. A few days later, he

would use the PIN to learn whether the duplicate gift card had

been sold and, if so, how much money had been loaded onto

it. If the duplicate gift card had been sold and thereby activated for use, Truong would use the original gift card to make

purchases or would exchange it for cash.

On October 22, 2006, officers, alerted by Wal-Mart’s

security, approached Truong’s Cadillac Escalade in the parking lot of the Yuba City Wal-Mart. Truong sped out of the

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parking lot, leading the police on a high-speed chase through

several red lights and causing a minor collision between two

nearby vehicles. He eventually hit a Ford pickup, whose

driver suffered a concussion and a number of bruises. After

the crash, Truong tried to run away, but a civilian bystander

managed to tackle Truong. 

After Truong’s arrest, police searched his Escalade, finding

more than 3,884 gift cards from nine different retail stores

including Wal-Mart, paperwork containing another 4,050

Wal-Mart gift card account numbers, and equipment used to

duplicate retail gift cards. He was charged with violating 18

U.S.C. § 1029(a)(3), which prohibits anyone from possessing,

knowingly and with intent to defraud, “fifteen or more

devices which are counterfeit or unauthorized access

devices.” Truong pleaded guilty.

The Presentence Report (“PSR”) calculated financial loss

under U.S.S.G. § 2B1.1 cmt. n.3(F)(i), which determines loss

by how many “access device[s]” were involved in the offense.

At sentencing, the district court rejected Truong’s objections

to the PSR, whose recommended findings it adopted.

Although the recommended Guidelines range was 70 to 87

months, the district court, largely because of Truong’s history

of repeated access-device offenses, imposed the statutory

maximum of 120 months (ten years) in prison.

II. Discussion

A. Guidelines Calculation

Although Truong pleaded guilty to possessing fifteen or

more unauthorized access devices with intent to defraud, the

thrust of his appeal is that the sentence was miscalculated by

applying the Guidelines application note for calculating loss

caused by access devices. According to Truong, the retail gift

cards he possessed do not qualify as “access devices” under

the Guidelines. We review the district court’s interpretation of

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the Guidelines de novo. United States v. Barsumyan, 517 F.3d

1154, 1157 (9th Cir. 2008).

[1] The Guidelines application note takes its definition of

“access device” from 18 U.S.C. § 1029(e)(1), which provides

that an “access device” must access an “account.” See United

States v. Abozid, 257 F.3d 191, 195 n.4 (2d Cir. 2001). Truong contends that the retail gift cards in this case did not

access an “account” and therefore were not access devices.

[2] We have defined “an account [as] a contractual relationship that makes possible the provision of goods, services, or

money based on payment, or the expectation of payment, at

some later point in time, as described by the entry of credits

and debits in a formal record.” United States v. Bailey, 41

F.3d 413, 417 (9th Cir. 1994). When buying a retail gift card,

the customer gives the retailer an amount of money which is

then credited to the card and may be drawn against. That purchase creates a contractual relationship. Cf. United States v.

Bruce, 531 F. Supp. 2d 983, 989 (N.D. Ill. 2008) (concluding

that counterfeit Universal Product Code stickers do not access

an account). Each purchase made with the card is a debit from

the balance initially associated with the card, and both the

customer and the retailer can keep track of the balance on the

card. Under Bailey, a retail gift card accesses an “account.”

Nothing in either the plain language of the statute or the

case law requires that an “access device” contain information

identifying a particular person as its owner. See Bailey, 41

F.3d at 418 (finding irrelevant whether access device was

traceable to a legitimate customer). What matters is that Truong’s stolen retail gift cards were a “means of account access”

by which he “obtain[ed] money, goods, [or] services.” 18

U.S.C. § 1029(e)(1).

B. Reasonableness of Sentence

[3] Under our “deferential abuse-of-discretion standard of

review,” we also reject Truong’s argument that the district

15664 UNITED STATES v. TRUONG
court’s sentence was unreasonable. Gall v. United States, 552

U.S. 38, 52 (2007). The district court sufficiently explained

that the Guidelines did not account for Truong’s particular

type of recidivism. It was “astound[ed]” not by the mere fact

of Truong’s recidivism, but by Truong’s repeated commission

of the same kind of crime — access device fraud — despite

repeated punishment. The court also relied on the fact that,

while fleeing, Truong “almost killed” the driver of the pickup

and, thus, would “do anything to avoid justice.” The charges

pending against Truong in state courts do not make the sentence unreasonable, since they neither erase Truong’s long

history of recidivism nor guarantee that Truong will face further punishment. Nor does the amount of proven actual loss

in this case require reversal, for the PSR’s calculation of

actual loss was relatively low only because the probation officer could not identify the many victims of Truong’s fraud.

The sentencing transcript evidences the district court’s thorough consideration of all of the 18 U.S.C. § 3553(a) factors.

We find no abuse of discretion in its sentence. See United

States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

III. Conclusion

We affirm Truong’s sentence.

AFFIRMED.

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