FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 16, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10099

Non-Argument Calendar

________________________

D. C. Docket No. 07-60206-CR-AJ

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

KERRICK YOUNG, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 16, 2008)

Before BIRCH, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

Kerrick Young appeals his 18-month sentence imposed after he was
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convicted on a guilty plea of “conspiracy to commit access device fraud and

aggravated identity theft” in violation of 18 U.S.C. § 371. He contends that the

district court erred in its sentence finding about the amount of fraud loss

attributable to him, arguing that the government failed to prove the loss with

reliable specific evidence. He also contends that the court failed to articulate

sufficient findings to support that amount of loss. 

I.

Young agreed to a factual proffer stating that he had participated in a

conspiracy in which he received credit cards and gift cards encoded with stolen

credit card information from another co-conspirator and used those cards to

purchase merchandise, mostly electronics, from a Wal-Mart store. The factual

proffer stated that Young had used unauthorized access devices to “obtain things of

value aggregating at least $1,000.00” but did not further specify the amount of total

loss.

The Presentence Investigation Report stated that the conspirators were

Young and his cousin, Courtney Singh, along with two Wal-Mart employees,

Darrel Pendergrass and Audra McLean. It recounted how on August 8, 9, and 13,

2007, Young and Singh fraudulently purchased $10,614.04 in electronics at WalMart using credit cards and gift cards encoded with stolen credit card account
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numbers. The PSI also stated that on August 13, 2007, agents observed Singh

fraudulently purchasing three laptop computers and a monitor in separate

transactions with McLean and Pendergrass. Singh exited the Wal-Mart and passed

a laptop computer to Young. Agents approached Singh and Young at their

vehicles and recovered from each of them four credit cards embossed with their

own names but re-encoded with credit card account numbers that did not match the

numbers on the card. Young, Singh, Pendergrass, and McLean were arrested.

The PSI summarized post-arrest statements by Singh, Pendergrass, and

McLean. Singh admitted that he and Young had been taking part in the credit card

fraud scheme to purchase electronics from Wal-Mart for approximately two

months. As part of the scheme Singh received credit cards and gift cards, already

encoded with credit card account numbers, from a man named Alrick Rickards. 

Singh and Young then used the cards to purchase merchandise from Wal-Mart and

delivered that merchandise and the credit cards to Rickards. Pendergrass and

McLean both admitted to processing fraudulent transactions for Singh and Young

and to receiving payment in merchandise for their cooperation. The PSI also stated

that Rickards had created a website that was used to sell the fraudulently purchased

merchandise. 

As to the loss amount, the PSI stated the total loss amount from the
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conspiracy was $73,015. It did not, however, detail each fraudulent credit and gift

card transaction. The PSI recommended applying an eight-level enhancement,

pursuant to U.S.S.G. § 2B1.1(b)(1)(E), because the loss amount was between

$70,000 and $120,000. That resulted in Young’s advisory guidelines range being 

eighteen to twenty-four months’ imprisonment.

Young objected to the statement in the PSI that he was involved in

fraudulent purchases amounting to $73,015. He asserted instead that he “was only

involved in approximately 4 or 5 purchases amounting to approximately $10,000.” 

Young also separately objected to the eight-level enhancement under U.S.S.G. §

2B1.1(b)(1)(E) because it overstated his involvement in the conspiracy. 

The district court held a joint sentencing hearing for Young and Singh. At

that hearing Young renewed his objection that the PSI overstated the loss amount

attributable to him. He pointed out that no loss amount was specified in the plea

agreement or the factual proffer. Young argued that it was inconsistent with the

guidelines to hold him accountable for the full amount of loss because he did not

design the conspiracy and profited very little from it. He also argued that it was

not reasonably foreseeable for him that there would be more than $73,000 in losses

because he was “really more in the line of a courier type individual” who made

purchases and gave the merchandise to another person. Young did concede that
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“the scope of criminal liability may include the seventy-three thousand dollars as a

conspiracy,” but contended that “the scope of sentencing liability” for him was

closer to $10,000. 

The district court, after hearing from the government and considering

U.S.S.G. § 1B1.3 and 2B1.1(b)(1)(E), determined by a preponderance of the

evidence that the loss amount was between $70,000 and $120,000. The district

court found “particularly probative” the commentary in U.S.S.G. § 1B1.3

regarding jointly undertaken criminal activity and reasonable foreseeability in

connection with criminal activity. 

The district court calculated a guidelines range of eighteen to twenty-four

months and sentenced Young to eighteen months of imprisonment, two years of

supervised release, and $73,015 in restitution. After sentencing, the district court

solicited objections “to the Court’s finding of fact or to the manner in which

sentence was pronounced,” and Young renewed his objection to the district court’s

determination as to the loss amount.

II.

Young challenges on two grounds the eight-level enhancement under

U.S.S.G. § 2B1.1(b)(1)(E) that was applied in sentencing him, contending that: (1)

the government failed to carry its burden of proving the amount of loss attributable
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to Young with reliable and specific evidence; and (2) the district court failed to

make adequate factual findings regarding the amount of loss attributable to

Young.

A.

Under the advisory sentencing guidelines, a defendant may be held

accountable for “all reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity.” U.S.S.G.

§ 1B1.3(a)(1)(B). To be held responsible for the conduct of others, the conduct

must be both (1) “in furtherance of the jointly undertaken criminal activity” and (2)

“reasonably foreseeable in connection with that criminal activity.” Id. § 1B1.3

cmt. n.2; United States v. Hunter, 323 F.3d 1314, 1319-20 (11th Cir. 2003). When

determining the loss amount attributable to a particular defendant convicted of a

conspiracy offense, the district court must “first determine the scope of criminal

activity the defendant agreed to undertake, and then consider all reasonably

foreseeable acts and omissions of others in the jointly undertaken criminal

activity.” United States v. McCrimmon, 362 F.3d 725, 731 (11th Cir. 2004)

(quotations marks omitted). The government bears the burden of proving the loss

amount with reliable and specific evidence. United States v. Medina, 485 F.3d

1291, 1304 (11th Cir. 2007); United States v. Gupta, 463 F.3d 1182, 1200 (11th
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Cir. 2006). 

Young does not question the fact that the total amount of loss to Wal-Mart

caused by the conspiracy was not $73,015. He conceded at the sentencing hearing

that “the scope of criminal liability may include the seventy-three thousand dollars

as a conspiracy.” So, the total loss being $73,015 is a fact that is deemed admitted

for sentencing purposes, United States v. Shelton, 400 F.3d 1325, 1329–30 (11th

Cir. 2005), leaving as the only question whether the district court erred in

attributing that total amount of loss Young for sentencing purposes.

Young’s admissions in his plea agreement and in factual proffer, as well as

parts of the PSI support the attribution of the entire loss amount to Young. He

admitted in the factual proffer that from June 10, 2007 to August 13, 2007, he

participated in a conspiracy in which he received credit and gift cards encoded with

stolen credit card information from another co-conspirator and used those cards to

purchase merchandise, mostly electronics, from Wal-Mart. Young admitted to the

facts in the PSI that: (1) he made fraudulent electronics purchases at Wal-Mart on

August 12, 2007; (2) he was present at Wal-Mart on August 13, 2007 when Singh

made fraudulent electronics purchases, including lap top computers and that Singh

passed one of them to him as Singh left the store; and (3) he had four credit cards

encoded with stolen account information in his possession when he was arrested. 
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In addition, by failing to object to them Young admitted to the accuracy of the

PSI’s summary of the post-arrest statements of his co-conspirators, including

Singh’s statement that he and Young participated in the credit card fraud scheme

for two months victimizing Wal-Mart by obtaining merchandise to which they

were not entitled. 

 As we have already noted, Young admitted that Wal-Mart’s total loss

because of the conspiracy was $73,015. Young clearly played a key role in the

conspiracy by purchasing merchandise using the fraudulent cards, assisting Singh

while he did so, and delivering the merchandise to Rickards to be resold. We

readily conclude that the district court did not clearly err in determining that

Singh’s purchases were acts committed in furtherance of the jointly undertaken

criminal activity that were reasonably foreseeable to Young, and attributing the

entire loss amount to Young, which justified application of the eight-level

enhancement under U.S.S.G. § 2B1.1(b)(1)(E).

B.

In order to enhance a defendant’s sentence based on the acts of any others, a

district court “must first make individualized findings concerning the scope of

criminal activity undertaken by a particular defendant.” Hunter, 323 F.3d at 1319;

see also Gupta, 463 F.3d at 1200 (“[A] district court must make factual findings
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sufficient to support the government's claim of the amount of fraud loss attributed

to a defendant in a PSI.”). After making these findings, the district court can then

determine whether the conduct was reasonably foreseeable. Hunter, 323 F.3d at

1319.

Young did not object in the district court that there were insufficient fact

findings to support the loss calculation, even though the district court solicited

objections from the parties after sentencing. As a result, we review this issue

solely for plain error, which means that we will reverse only where: (1) an error

occurred, (2) the error was plain, (3) the error affected substantial rights, and (4)

the error seriously affects the fairness, integrity or public reputation of judicial

proceedings. United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005). 

Although the district court did not make detailed factual findings as to the

scope of criminal activity undertaken by Young, the court did state that it had

found “particularly probative” the commentary to U.S.S.G. § 1B1.3 on relevant

conduct for jointly undertaken activity. And Young did admit to the facts that

established his role in the conspiracy, that he was a key player. Young admitted he

was one of two individuals who received credit cards and gift cards encoded with

stolen credit card information, used the cards to make fraudulent purchases of

merchandise from Wal-Mart, and delivered the merchandise and credit cards to
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Rickards, the individual who sold the merchandise. Thus, we cannot say that the

district court committed plain error in this respect. Moreover, even if the district

court’s failure to spell out its findings more explicitly was error and it was plain,

Young has not established that the error affected his substantial rights, which

requires a showing of a reasonable probability of a different sentence if the error

had not been made. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct.

1770, 1777–78 (1993); United States v. Rodriguez, 398 F.3d 1291, 1299–1306

(11th Cir. 2005). There is no reasonable probability that if the district court had

been more explicit in its findings about the attribution of loss, Young would have

received a lesser sentence. 

AFFIRMED.