Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

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
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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28, 2006) (per curiam) (unpublished), defendant Jesús Manuel DíazCorrea ("Díaz") was resentenced to the same sentence previously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 and five years of supervised

release. This is Díaz's appeal from that sentence.

Díaz 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 the 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 them in that

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
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(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 error 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

prejudicial to warrant appellate review despite Díaz's double

forfeiture.

At his original sentencing, Díaz argued that no

enhancement for "theft from the person of another" 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 person 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

participants in the same scheme at issue here, we held that "the
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guideline is intended to apply to physical takings, not to abstract

forms of theft that take place far from the victim, like credit

card fraud." Id. at 11. At least after 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 lower 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 and reduce 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 next, there 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

first appeal. Therefore, the law-of-the-case doctrine is

inapplicable to this issue. Nor is this court's review 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
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$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 overt acts 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, 257 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)" (emphasis

added) and by his counsel's repeated protestations that Díaz was

responsible only for the much smaller amounts of his own purchases.
If Díaz were held accountable for only the $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 would 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). 

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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 court

mistakenly believed that Díaz's stipulation to the overall loss

amount and number of victims 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

light of 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 recalculate Díaz's guidelines range

accordingly.
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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

statement 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 district court erred in

interpreting the guidelines or applying them to the facts of this

case, such errors render its sentence procedurally unreasonable.

Gall, 128 S. Ct. at 597. Apart from those purported errors, which

have already been discussed, Díaz argues only that the district

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 minor role into account by applying a two-level downward

adjustment to his offense level on that basis. The court also

heard but rejected defendant's other arguments for leniency under

18 U.S.C. § 3553(a). No 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).
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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 loss amount and the number of victims for which Díaz was

accountable, we vacate the sentence and remand the case to the

district court for resentencing. 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,

after 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

year, then the court should also reconsider Díaz's term of

supervised release in light of the guidelines (which permit but do

not recommend any supervised release 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).