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# U nit edSta tes C ou rt of App eal s

For t h e Firs t C ircu it

No. 06-2721 UNITED STATES OF AMERICA, Appellee,

v. JESÚS MANUEL DÍAZ-CORREA, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before Lynch, Chief Judge, Lipez and Howard, Circuit Judges.

Ryan Thomas Truskoski on brief for appellant. Rosa Emilia Rodriguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant U. S. Attorney, and Mariana E. Bauzá-Almonte, Assistant U.S. Attorney, on brief for appellee.

August 4, 2008- 2 - Per Curiam . On remand from this court for resentencing under United States v. Booker, 543 U.S. 220 (2005), see United States v. Díaz-Correa, No. 04-2187, 186 F. App'x 12 (1st Cir. June 28, 2006) (per curiam) (unpublished), defendant Jesús Manuel DíazCorrea ("Díaz") was resentenced to the same sentence previously imposed, 57 months of imprisonment a nd five years of supervised release. This is Díaz's appeal from that sentence.

D í az raises the following issues: (1) whether the district court erred in imposing an enhancement for "theft from the person of another" under USSG § 2B1.1.(b)(3) where the offense conduct--identity theft--involved no physical taking of property; (2) whether the district court erred in failing to make an individualized determination of the loss amount and the number of victims for which Díaz was accountable for sentencing purposes; (3) whether t he district court erred in imposing an enhancement for "sophisticated means" under USSG § 2B1.1(b)(8)(c); and (4) whether the sentence imposed was unreasonable under Gall v. United States, 128 S. Ct. 586 (2007). We will consider each of themi n t hat order. 1. Enhancement for "theft from the person of another."

This issue raises two threshold questions : (a) Whether appellate consideration of this issue is barred by the law-of-thecase doctrine since it was not raised in Díaz's first appeal, see United States v. Ticchiarelli, 171 F.3d 24, 29 (1st Cir. 1999); and- 3 -

(b) if not, whether appellate correction of this alleged error is nevertheless barred by Díaz's failure to raise it at his resentencing, United States v. Mangone, 105 F.3d 29, 35 (1st Cir. 1997). Both of these potential bars to appellate review have exceptions where the alleged e r r or is sufficiently blatant and prejudicial. United States v. Vigneau, 337 F.3d 62, 67-68 (1st Cir. 2003) (stating exceptions to law-of-the-case doctrine); United States v. Olano, 507 U.S. 725, 734 (1993) (stating standards for appellate correction of forfeited error). First we will consider the plainness of the error and then whether it was sufficiently preju d icial to warrant appellate review despite Díaz's double forfeiture.

At his original sentencing, Díaz argued th a t no enhancement for "theft from the person of a n o ther" should be imposed because the relevant conduct--electronically recording account information from credit cards without the card holders' knowledge--did not involve a physical taking "'of property that was being held by another p e rson or was within arms' reach.'" The district court rejected that argument, finding that the offense conduct amounted to "theft" of a credit card within the meaning of USSG § 2B1.1(b)(3). That conclusion was error, as clarified by our subsequent decision in United States v. Pizarro-Berríos, 448 F.3d 1, 10-11 (1st Cir. 2006). In that case, involving other
p a r t i c i p a n t s i n t h e s a m e s c h e m e a t i s s u e h e r e , w e h e l d t h a t "the- 4 -

guideline is intended to apply to physical takings, not to abstract forms of theft that take place far from the vi c t i m , l i k e credit card fraud." Id. at 11. At least a f t er Pizzaro-Berríos, that error is sufficiently plain to satisfy the first two prongs of the Olano plain-error standard.

Where correction of such a guidelines calculation error would lead to a l o wer sentence, remand for resentencing is ordinarily warranted under the third and fourth prongs of that standard. United States v. Antonakopoulos, 399 F.3d 68, 81 (1st Cir. 2005). Here, correction of the error would reduce Díaz's offense level by two levels a n d r e duce his guidelines sentencing range from 57-71 months to 46-57 months. However, because Díaz has already served his prison sentence, reducing his guidelines range for imprisonment would not, by itself, be of any consequence on remand. But, as discussed ne x t , t h e re may have been a more consequential error. 2. Individualized determination of amount of loss and number

of victims. This issue was mentioned--albeit obliquely--in Díaz's fir s t appeal. Therefore, the law-of-the-case doctrine is inapplicable to this issue. Nor is this co u r t ' s r e v iew of this issue limited by the plain-error doctrine since, unlike the issue discussed above, this one was renewed at resentencing.

Díaz argues that, despite his stipulation in his plea agreement to a 14-level enhancement based on losses of over- 5 -

$400,000 that resulted from the conspiracy as a whole, he should be held accountable only for the approximately $2,500 in purchases that he personally made and that were alleged as overt acts in the indictment and in the government's version of facts, to which he stipulated at his change-of-plea hearing. He makes essentially the same objection to the enhancement for 10 to 50 victims, arguing that, despite his agreement to that enhancement in his plea agreement, he should be held accountable only for the two victims of his two purchases that were alleged as o v e r t a c ts in the indictment and described in the stipulated version of the facts.

Ordinarily, defendants are bound by their stipulations to guideline calculations in their plea agreements, United States v. Teeter, 2 5 7 F.3d 14, 28 (1st Cir. 2001), but not where those stipulations are based on errors of law, id. Also, the court can relieve parties from stipulations of fact or of the application of guidelines to facts "on terms that are just." Id. Here, Díaz's stipulation to "[l]osses over $400k" for purposes of application of a 14-level enhancement, is muddied by his stipulation, in the same document, to serving as a purchaser "for an organization involved in a scheme to defraud federally-insured financial institutions, in excess of four hundred thousand dollars ($400,000.00)" (e m p h asis added) and by h i s c o unsel's repeated protestations that Díaz was responsible only for the much smaller amounts of his own purchases.If Díaz were held accountable for only t h e $2,500 in 1 purchases he personally made rather than for the $400,000 loss resulting from the conspiracy as a whole and for only 2 rather than 10 to 50 victims, his offense level w o u ld drop 16 levels, USSG § 2B1.1(b)(1), (2), and his resulting guidelines sentencing range would be 4 to 10 months. For a sentence within that range, the guidelines do not recommend any supervised release time. USSG § 5D1.1(a). - 6 -

The record is susceptible of two different readings. One reading is that Díaz stipulated and the court found, as a factual matter, that the $400,000 loss amount and the 10-50 victims were foreseeable by Díaz, in which case, that amount and number of victims were properly attributed to him. Pizzaro-Berríos, 448 F.3d
at 7. However, an equally plausible reading is that the c o u rt mistakenly believed that Díaz's stipulation to the overall loss amount and number of vict i m s relieved the court of its responsibility to "make an individualized determination regarding the amount of loss [and number of victims] attributable to, or reasonably foreseeable by [Díaz]," id., in which case the district court erred.

To eliminate the latter possibility (particularly in lig h t o f the potential effect of this error on defendant's supervised release term), we will remand this case to the district 1
court with instructions to make such individualized determinations and, if warranted, to recalcula t e Díaz's guidelines range accordingly.- 7 -

3. Enhancement for sophisticated means.

Díaz acknowledges that this issue was not raised in his first appeal or at his resentencing but makes only the conclusory
sta t e m ent that the error was sufficiently "plain" to warrant correction in any event. He makes no attempt to get around his stipulation to this enhancement in his plea agreement. His discussion of the merits of that issue is equally perfunctory. Accordingly, we decline to address the issue. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 4. Unreasonableness of the sentence under Gall
.

To the extent that the d i s trict court erred in interpreting the guidelines or applying them to the facts of this case, such erro r s render its sentence procedurally unreasonable. Gall, 128 S. Ct. at 597. Apart from those purported errors, which hav e a l r e a d yb e e n d i s c u s s e d , D í a z a r g u e s o n l y t h a t t h e d i s t r i ct court failed to consider his "very limited role in the conspiracy." The short answer to that contention is that the district court took Díaz's mino r role into account by applying a two-level downward adjustment to his offense level on that basis. The cou r t also heard but rejected defendant's other arguments for leniency under 18 U.S.C. § 3553(a). N o more was required, Gall, 128 S. Ct. at 596, particularly where, as here, the ultimate sentence fell within the guidelines range, Rita v. United States, 127 S. Ct. 2456, 2468 (2007).- 8 - In sum, because the district court plainly erred in applying an enhancement for "theft from the person of another" and may have erred in failing to make individualized determinations of the l oss amount and the number of victims for which Díaz was accountable, we vacate the sentence and remand the case to the district court for r e s entencing. On remand, the district court should eliminate the two-level enhancement for theft from the person of another; should make individualized determinations of the
amount of loss and number of victims for which Diaz was accountable either on the existing record or, if the court deems necessary,

a f t e r taking additional evidence; and should recalculate the guidelines sentencing range if its individualized determinations require it. If the top of the resulting range falls below one
yea r , t h en the court should also reconsider Díaz's term of supervised release in light of the guidelines (which permit but do not recommend any supervise d r elease where the prison sentence imposed is less than one year, USSG § 5D1.1) and the other factors referenced in 18 U.S.C. § 3553(c).