United States Court of Appeals 

For the First Circuit 

No. 17-1132 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

MALIK DELIMA, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. George Z. Singal, U.S. District Judge] 

Before 

Lynch, Circuit Judge, 

Souter, Associate Justice,*

and Kayatta, Circuit Judge. 

 Peter J. Cyr and Law Offices of Peter J. Cyr for appellant. 

 Michael J. Conley, Assistant United States Attorney, with 

whom Halsey B. Frank, United States Attorney, was on brief, for 

appellee. 

March 26, 2018 

 * Hon. David H. Souter, Associate Justice (Ret.) of the 

Supreme Court of the United States, sitting by designation. 
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LYNCH, Circuit Judge. Malik Delima pleaded guilty in 

2016 to conspiring to commit access-device fraud after courtapproved wiretaps, authorized during a separate investigation into 

a Vermont-based drug trafficking organization, exposed Delima's 

involvement in a scheme to produce and make purchases with 

fraudulent credit cards. Delima appeals the district court's 

denial of his motion to suppress the wiretap evidence. He also 

challenges his sentence on procedural and substantive 

reasonableness grounds. We affirm. 

I. Background 

A. Facts 

In 2014, federal law enforcement agents in Vermont began 

an investigation into a drug trafficking organization that 

transported cocaine and heroin from New York to Vermont and Maine. 

As part of that investigation, the agents applied for and obtained 

three separate wiretap authorizations from the district court in 

Vermont. The wiretaps targeted four phones used by Gary Delima 

and other members of the drug trafficking group. Each of the three 

wiretap applications was supported by affidavits, on personal 

knowledge, from Drug Enforcement Administration agent Timothy 

Hoffmann, who participated in the investigation. Through the 

wiretaps, the agents learned that Gary Delima and his brother Malik 

Delima ("Delima"), the defendant in this case, were at the center 
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of another criminal scheme -- one involving the manufacturing and 

use of fraudulent credit cards. 

On March 24, 2015, law enforcement agents executed a 

search warrant at the apartment of one of Malik Delima's associates 

in Auburn, Maine. They recovered various equipment used to 

manufacture fraudulent credit cards, including a laptop computer, 

a credit-card-embossing machine (a "tipper"), a credit card 

laminator, a magnetic-strip card reader, approximately 210 prepaid 

gift cards, and approximately 150 credit and debit cards. They 

also seized a laptop that contained text files with hundreds of 

stolen credit card numbers. In total, 2,326 unique credit, debit, 

and gift card numbers were seized from the physical cards, the 

laptop's files, and email accounts associated with the laptop. 

B. Presentencing Proceedings 

Malik Delima moved to suppress all evidence obtained 

through the wiretaps on the ground that the government had failed 

to demonstrate necessity. The district court denied the request 

on June 21, 2016. 

On July 22, 2016, Delima pleaded guilty to one count of 

conspiring to commit access-device offenses in violation of 18 

U.S.C. §§ 1029(a)(1), (a)(3), (a)(4) and (b)(2).1 Pursuant to 

 1 Ten other individuals, including Gary Delima, were 

charged for their respective roles in the credit card scheme. 

Charges against two of the codefendants, Sabrina McNeil and 
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Federal Rule of Criminal Procedure 11(a)(2), Delima conditioned 

his guilty plea on the reservation of his right to appeal the 

district court's denial of his motion to suppress the wiretap 

evidence. 

The probation office filed a presentence investigation 

report ("PSR"), which stated that Delima, along with his brother 

Gary, orchestrated the credit card scheme. It referred to phone 

calls showing that the two brothers oversaw nine other individuals 

who assisted in the execution of the scheme. The PSR also noted 

that, based on the 2,326 card numbers recovered from the seizure, 

and the formula specified in U.S.S.G. § 2B1.1, the total loss 

amount was $1,163,000 (2,326 cards multiplied by $500 per card).

The PSR calculated Delima's base offense level to be 

six. It then recommended a fourteen-level enhancement because the 

estimated loss was more than $550,000 and less than $1,500,000, 

pursuant to U.S.S.G. § 2B1.1(b)(1)(H); a two-level enhancement 

because the offense involved possession of device-making 

equipment, pursuant to § 2B1.1(b)(11)(B)(i); a two-level 

enhancement because there were at least ten victims, pursuant to 

§ 2B1.1(b)(2)(A)(i); a four-level enhancement because Delima was 

an organizer and/or leader of a criminal enterprise with five or 

more participants, pursuant to § 3B1.1(a); and a three-level 

 

Destinee Theriault, were dismissed. The remaining eight 

codefendants pled guilty. 
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reduction for Delima's acceptance of responsibility, pursuant to 

§ 3E1.1. As such, the PSR determined that Delima had a total 

offense level ("TOL") of twenty-five. 

Because Delima had a number of prior convictions, the 

PSR calculated that he had a criminal history category ("CHC") of 

IV. Based on a TOL of twenty-five and a CHC of IV, the applicable 

guideline range was 84-105 months. The PSR adjusted the range to 

84-90 months because there was a statutory cap of ninety months' 

incarceration. See 18 U.S.C. § 1029(b)(2). Delima objected to 

three aspects of the PSR: the estimated loss amount, his role 

enhancement, and the two criminal history points associated with 

his Youthful Offender conviction.

C. Loss-Amount Hearing and Sentencing Hearing 

The district court held an evidentiary hearing to 

determine the loss amount on December 22, 2016. Delima and two of 

his codefendants were present at the hearing. At the outset, the 

government introduced, and the district court admitted without 

objection, a spreadsheet of the fraudulent credit card numbers 

that the government contended was a "conservative estimate" of the 

numbers attributable to the defendants, a summary narrative 

chronology, a transcript of jail calls, and transcripts of the 

wiretapped calls.

The government then called Secret Service Agent Matthew 

Fasulo to testify. Fasulo, who joined the Delima investigation in 
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March 2015, described what he understood to be the mechanics of 

the credit card scheme: the conspirators purchased stolen credit 

card numbers from online sources, used specialized equipment to 

manufacture fraudulent credit cards, and recruited women to use 

the fraudulent credit cards to purchase goods and gift cards at 

retailers. Fasulo then testified that, based on the government's 

spreadsheet, approximately 1,024 of the credit card numbers 

recovered from the seizures in the apartment were tied to the 

conspiracy in the month of March 2015 alone. 

Fasulo explained that, based on his review of the 

transcripts of the wiretapped calls, he believed that the scope of 

the criminal scheme extended beyond Maine to several other states, 

including Pennsylvania, Massachusetts, and New York. Fasulo 

discussed a number of the wiretapped calls in depth, including a 

call in which Delima instructed Gary to order 100 unique credit 

card numbers for $1,500; a call showing that Delima and his 

coconspirators had been ordering card numbers even before they had 

moved their operation to Maine; several calls in which Delima 

discussed recruiting women to make purchases with the fraudulent 

credit cards; a call in which Delima recommended Plattsburgh, New 

York as an attractive place to make purchases; and a call in which 

Delima advised Gary on where to test the fraudulent cards. 

On cross-examination, Fasulo testified that there was no 

evidence directly tying the files found on the seized laptop to 
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Delima, and that only about half of the accounts listed in the 

government's spreadsheet had been confirmed by banks to be 

associated with real individuals.2 On redirect examination, Fasulo 

confirmed that, based on his review of email accounts associated 

with both the sellers and the buyers of the fraudulent credit card 

numbers, none of the conspirators had complained that the card 

numbers purchased online were illegitimate. 

The sentencing hearing took place on February 1, 2017. 

After hearing from the parties, the court addressed the two 

disputed issues: the loss amount and the role enhancement. 

With respect to the loss amount, the district court noted 

that Delima had "agreed to be part of the entire process" of the 

conspiracy, pointing to defense counsel's own concessions that 

Delima "knew what was planned, knew how it would be done, knew 

when it would be done, . . . and knew the people who were going to 

do it." As such, the district court attributed "the 1,025 

card[ numbers] that were found . . . in the [March 2015] raid" to 

Delima.3 The court also found that a "minimum of 75" additional 

cards were attributable to Delima, "based on his operations in 

 2 Fasulo testified that the other half had not been 

submitted to the banks for confirmation.

3 The district court rejected Delima's assertion that only 

the card numbers that were actually used could be considered in 

the loss amount calculation, as well as his contention that some 

of the 1,025 card numbers recovered from the raid may have been 

fake.
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other areas, and his personal operations previously in Maine." 

The court emphasized that seventy-five was a "minimum" figure, and 

that Delima was responsible for "probably hundreds" of card numbers 

in addition to the 1,025 recovered from the March 2015 search. 

Because the district court attributed at least 1,100 cards to 

Delima, it determined the loss amount to be "at least [$]550,000" 

and applied a fourteen-level loss enhancement pursuant to U.S.S.G. 

§ 2B1.1(b)(1)(H).

With respect to the role enhancement, the district court 

acknowledged that Delima had "a considerable role in the offense," 

but ultimately decided to give him a three-level role enhancement 

as a "manager and supervisor" of the scheme, rather than a fourlevel enhancement as an organizer or leader. As a result of the 

court's findings on the two enhancements and the acceptance-ofresponsibility reduction, Delima's total offense level was twentyfour. Combined with a CHC of III,4 the applicable sentencing range 

was 63-78 months. 

The district court ultimately imposed a seventy-fivemonth sentence. In doing so, the court emphasized the interstate, 

"broad-ranging" nature of the conspiracy; Delima's role as a 

"central character" in the scheme; his "troubled criminal 

history;" his involvement in the conspiracy within months of 

 4 While the PSR recommended a CHC of IV, the district court 

adjusted it to III by agreement of the parties. 
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completing his supervised-release term from a prior counterfeiting 

conviction; the significant harm suffered by Maine residents; and 

the fact that the conspiracy "was only stopped fortuitously" by 

the March 2015 raid. The district court also stated that it would 

have given the same seventy-five-month sentence even if it had 

found 1,025 card numbers instead of 1,100.

II. Discussion 

On appeal, Delima challenges the district court's denial 

of his motion to suppress the wiretap evidence, as well as its 

decision to impose the fourteen-level loss enhancement and the 

three-level role enhancement. Delima also alleges that the 

district court's seventy-five-month sentence was substantively 

unreasonable.

A. Denial of Motion to Suppress Wiretap Evidence 

Under 18 U.S.C. § 2518(1)(c), wiretap applications must 

include "a full and complete statement as to whether or not other 

investigative procedures have been tried and failed or why they 

reasonably appear to be unlikely to succeed if tried or to be too 

dangerous." The government is not required to "run outlandish 

risks or to exhaust every conceivable alternative before seeking 

a wiretap." United States v. Hoffman, 832 F.2d 1299, 1306 (1st 

Cir. 1987). Rather, to satisfy § 2518(1)(c), the government must 

demonstrate that it "has made a reasonable, good faith effort to 

run the gamut of normal investigative procedures before resorting 
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to means so intrusive as electronic interception of telephone 

calls." United States v. Rodrigues, 850 F.3d 1, 9 (1st Cir. 2017) 

(quoting United States v. Martinez, 452 F.3d 1, 4 (1st Cir. 2006)). 

In reviewing the district court's ruling with respect to the 

government's showing of necessity, we "decide if the facts set 

forth in the [wiretap] application were minimally adequate to 

support the determination that was made." United States v. 

Santana, 342 F.3d 60, 65 (1st Cir. 2003) (quoting United States v. 

López, 300 F.3d 46, 53 (1st Cir. 2002)). 

We have upheld wiretap applications supported by 

affidavits that "explain[] why the continued use of traditional 

investigative techniques (such as confidential sources, grand jury 

subpoenas, search warrants, surveillance and consensual 

monitoring) would be ineffective in uncovering the full scope of 

the potential crimes under investigation." United States v. 

Villarman-Oviedo, 325 F.3d 1, 10 (1st Cir. 2003). We have also 

approved of affidavits in which "agents assert a well-founded 

belief that the techniques already employed during the course of 

the investigation had failed to establish the identity of 

conspirators, sources of drug supply, or the location of drug 

proceeds." Rodrigues, 850 F.3d at 10. 

The affidavits supporting all three of the wiretap 

applications clearly set forth the goals of the investigation, 

which were to (1) identify the conspiracy's leaders; (2) ascertain 
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the names, phone numbers, and addresses of associates of the 

conspiracy, including drug suppliers, distributors, and customers; 

(3) determine the manner in which drugs were trafficked to and 

stored in Vermont; and (4) discover the methods used by the 

organization to funnel proceeds back to individual participants. 

Contrary to Delima's assertions, these goals were not overly broad. 

See Martinez, 452 F.3d at 6 (deeming valid, for wiretapauthorization purposes, similar investigatory goals). 

The December 22, 2014 affidavit adequately stated why 

each of the ten traditional investigative techniques that had been 

employed up to that point would have been ineffective in achieving 

the goals of the investigation. For example, the affidavit stated 

that the use of confidential informants would have been fruitless 

because the informants were low-level "runners" who did not have 

access to information pertinent to the investigation's goals; that 

controlled drug purchases and pole cameras would not help to 

identify the leaders of the conspiracy; and that interviewing 

members of the conspiracy might compromise the investigation by 

alerting the suspects. 

Like the December 22, 2014 affidavit, the February 3, 

2015 affidavit properly described why additional wiretaps were 

needed to accomplish the investigation's goals and why traditional 
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investigative techniques would not suffice.5 It also explained 

that, while the December 22, 2014 wiretap had permitted agents to 

gain a better understanding of the conspiracy's operations, 

wiretaps on two additional phones were necessary to determine, 

inter alia, the organization's source for heroin and cocaine base, 

its trafficking and money-laundering methods, its use of firearms 

in furtherance of the conspiracy, and "the extent of the 

organization's distribution network in Maine and other places 

outside of Vermont." 

At oral argument, defense counsel contended that even if 

the first two wiretaps were necessary, the third wiretap was not, 

because the agents already had a solid case against the Vermont 

drug traffickers by the time they applied for that wiretap. We 

disagree. Like the February 3, 2015 affidavit, the affidavit 

supporting the February 23, 2015 wiretap application provided 

updated reasons as to why new wiretaps were necessary and why 

traditional investigative techniques were still unlikely to be 

effective. Importantly, the February 23, 2015 affidavit 

articulated why the newly requested wiretap would provide the 

agents with information "beyond what was acquired through the 

 5 Moreover, the February 3, 2015 affidavit did not merely 

recite the reasoning from the December 22, 2014 affidavit. To the 

contrary, its explanation of (1) why another wiretap was needed 

and (2) why traditional investigative techniques were still 

insufficient was supported by fresh examples and new evidence 

uncovered since the December 22, 2014 application.
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monitoring of the previous phones alone." In particular, the 

affidavit noted that the third wiretap application targeted a phone 

that members of the conspiracy used for internal communications, 

whereas prior wiretaps had primarily targeted phones used by the 

suspects to communicate with customers. According to Hoffmann, 

wiretapping an internal phone would, unlike previous wiretaps, 

provide information regarding when drug supplies were being 

trafficked to Vermont, the quantity of those drugs, and where those 

drugs would be hidden prior to distribution. That information 

clearly falls within the parameters of the investigation's 

legitimate goals. See id. at 6.

In short, each of the three affidavits provided facts 

that were "minimally adequate" to support the wiretap 

authorizations. Santana, 342 F.3d at 65 (quoting López, 300 F.3d 

at 53). 

B. Sentencing Challenges 

We review the district court's sentencing decisions, 

apart from claimed errors of law, for abuse of discretion. See 

United States v. Clogston, 662 F.3d 588, 590 (1st Cir. 2011). We 

engage in a two-part analysis: "we first determine whether the 

sentence imposed is procedurally reasonable and then determine 

whether it is substantively reasonable." Id. 

A district court's sentencing decision is procedurally 

unreasonable if the district court "fail[s] to calculate (or 
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improperly calculat[es]) the Guidelines range, treat[s] the 

Guidelines as mandatory, fail[s] to consider the § 3553(a) factors, 

select[s] a sentence based on clearly erroneous facts, or fail[s] 

to adequately explain the chosen sentence -- including an 

explanation for any deviation from the Guidelines range." United 

States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008) (quoting Gall v. 

United States, 552 U.S. 38, 51 (2007)). A sentence is 

substantively reasonable if, "considering the totality of the 

circumstances, . . . there is 'a plausible sentencing rationale 

and a defensible result.'" United States v. Reyes-Rivera, 812 

F.3d 79, 89 (1st Cir. 2016) (quoting Martin, 520 F.3d at 96). 

Delima alleges that the district court committed 

procedural error by imposing a fourteen-level loss enhancement and 

a three-level role enhancement. He also asserts that his seventyfive-month sentence is substantively unreasonable because a 

downward variance was warranted. We reject these arguments for 

the following reasons. 

1. Loss Enhancement 

Under U.S.S.G. § 2B1.1(b)(1)(H), criminal conduct that 

causes a "loss" of more than $550,000 but less than $1,500,000 

gives rise to a fourteen-level increase in the defendant's offense 

level. As an initial matter, to the extent Delima asserts that 

the district court should have focused on the actual losses caused 

by the conspiracy, which he claims amounted to somewhere between 
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$11,000 and $30,000, he misconstrues the Guidelines' definition of 

"loss." 

U.S.S.G. § 2B1.1 cmt. n.3(A) defines "loss" as the 

"greater of actual loss or intended loss," where "actual loss" 

represents the "reasonably foreseeable pecuniary harm that 

resulted from the offense," and "intended loss" represents "the 

pecuniary harm that the defendant purposely sought to inflict," 

including "intended pecuniary harm that would have been impossible 

or unlikely to occur." For cases involving counterfeit access 

devices, the Guidelines state that "loss includes any unauthorized 

charges made with the counterfeit access device or unauthorized 

access device and shall be not less than $500 per access device." 

Id. at cmt. n.3(F)(i).6 

It is clear from the record that the district court 

focused on intended losses and rejected Delima's argument that 

actual losses should be used. Delima's actual-loss argument 

ignores the fact that, under U.S.S.G. § 2B1.1, a "sentencing court 

must consider the greater of actual or intended loss." United 

States v. Iwuala, 789 F.3d 1, 12-13 (1st Cir. 2015) (emphasis 

added). Delima and his conspirators clearly procured credit card 

numbers with the intention of using all of the numbers to generate 

 6 Delima advances no argument that the $500 per device 

floor specified in U.S.S.G. § 2B1.1 cm.t n.3(F)(i) is not 

applicable when intended loss is used as the measure. 
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profits, even if they did not end up actually using all of the 

numbers. In fact, as the district court noted, a primary reason 

why the conspirators were unable to use the remaining numbers was 

because federal agents put a halt to the conspiracy by raiding the 

Auburn apartment. As such, the district court correctly focused 

its inquiry on how many card numbers the conspiracy procured, 

regardless of actual use. 

Our next task is to determine the extent of the loss the 

conspiracy intended to cause. The government bears the burden of 

proving the amount of intended loss by a preponderance of the 

evidence. See United States v. Alli, 444 F.3d 34, 38 (1st Cir. 

2006). "[D]eference is owed" to the loss determination of the 

district court, which "need only make a reasonable estimate of the 

loss," because the district court "is in a unique position to 

assess the evidence and estimate the loss based on that evidence." 

United States v. Sharapka, 526 F.3d 58, 61 (1st Cir. 2008) (quoting 

U.S.S.G. § 2B1.1, cmt. n.3). 

Defendants who engage in a "jointly undertaken criminal 

activity" are responsible for (1) losses that are "directly 

attributable" to them, and for (2) losses that result from 

"reasonably foreseeable acts committed by others in furtherance of 

the jointly undertaken criminal activity." United States v. 

Pizarro-Berríos, 448 F.3d 1, 8 (1st Cir. 2006). The sentencing 

court must first "ascertain what activity fell within the scope of 
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the specific conduct and objectives embraced by the defendant's 

agreement," and then "determine to what extent others' acts and 

omissions that were in furtherance of jointly undertaken criminal 

activity likely would have been foreseeable by a reasonable person 

in defendant's shoes at the time of his or her agreement." United 

States v. LaCroix, 28 F.3d 223, 227 (1st Cir. 1994). 

The district court properly found that Delima had agreed 

to be "an integral member" of a conspiracy to procure 

misappropriated credit card numbers, produce fraudulent credit 

cards, and use the fraudulent cards to transact with merchants. 

There was also ample evidence for the district court to conclude 

that Delima was aware of even the "smallest detail[s]" of the 

conspiracy. Wiretapped conversations revealed that Delima had 

funded and profited from the conspiracy, had been aware of the 

role of each actor in the conspiracy, and had understood the minute 

operational details of the conspiracy, including the appropriate 

size of card-number orders and how to effectively test the 

fraudulent credit cards. As such, the district court reasonably 

found that all 1,025 of the credit card numbers procured by the 

conspiracy in March 2015 were foreseeable to Delima. See LaCroix, 

28 F.3d at 229 (holding that "a defendant's awareness of the inner 

workings of a conspiracy in which he is participating . . . 

frequently will suffice to prove the defendant's ability to foresee 

the acts of coconspirators"). 
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Delima argues that there was no evidence of his 

involvement in the conspiracy before late February 2015, and that 

he should not be responsible for any losses associated with card 

numbers outside of the 1,025 numbers attributable to the conspiracy 

in March 2015. However, several wiretapped calls evidenced that 

Delima had been personally involved in credit card fraud in Maine 

and other states well before March 2015. For example, during a 

call on February 26, 2015, Delima described Plattsburgh as a 

"beautiful" location to make purchases with fraudulent cards 

because there were a significant number of "reggies" (i.e., cash 

registers) there. In another call on March 6, 2015, Delima stated 

that his conspirators needed to "pay homage" to him when they 

travelled to the Lewiston-Auburn area to await delivery of a tipper 

because that area was "[his] town." And in several other phone 

calls, Delima referred to his preexisting connections to women who 

were willing to make purchases with fraudulent credit cards. Given 

this evidence, the district court reasonably found it probable 

that a minimum of seventy-five additional card numbers were 

personally attributable to Delima. 

The government conceded at oral argument that the 

district court was required to attribute at least seventy-six, not 

seventy-five, additional card numbers to Delima in order to apply 

the fourteen-level enhancement under U.S.S.G. § 2B1.1(b)(1)(H). 

Moreover, seventy-six is only the correct figure if we accept the 
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district court's finding, which defense counsel failed to contest 

at sentencing, that 1,025 card numbers were attributable to the 

conspiracy in March 2015, even though Fasulo testified that there 

were "approximately 1,024" March 2015 numbers. However, these 

discrepancies -- which cumulatively account for only two card 

numbers -- do not amount to prejudicial error because the district 

court stated that, based on the evidence of Delima's prior personal 

involvement in credit card fraud, Delima was responsible for 

"probably hundreds" of numbers in addition to the 1,025 numbers 

that the district court attributed to the conspiracy in March 

2015.7

Delima also argues that some of the card numbers 

recovered from the March 2015 search may have been fabricated. 

Not only is there a complete lack of evidence to support this 

assertion, but the district court also reasonably relied on 

affirmative evidence of the card numbers' genuineness. That 

evidence included the fact that the conspirators repeatedly 

purchased the numbers from the same source without complaint, and 

the fact that the affected banks checked approximately half of the 

recovered numbers and confirmed that all of those numbers were 

associated with real accounts. The district court reasonably 

 7 Moreover, the district court noted that it would have 

given the same sentence even if it had attributed only 1,025 

numbers to Delima. 
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reached the conclusion that the card numbers recovered from the 

March 2015 seizure were genuine. 

2. Role Enhancement 

We review the district court's determination that Delima 

was a "manager or supervisor" of the conspiracy for clear error. 

United States v. Garcia-Hernandez, 659 F.3d 108, 114 (1st Cir. 

2011). U.S.S.G. § 3B1.1(b) provides for a three-level enhancement 

"[i]f the defendant was a manager or supervisor (but not an 

organizer or leader) and the criminal activity involved five or 

more participants or was otherwise extensive." A court applying 

this enhancement must make two findings: first, "that the 

underlying criminal activity involved five or more participants or 

was otherwise extensive," and second, "that the defendant, when 

committing the offense, managed, superintended, or exercised 

hegemony over at least one other participant." United States v. 

Nuñez, 840 F.3d 1, 5 (1st Cir. 2016), cert. denied, 137 S. Ct. 

1126 (2017). 

Delima does not challenge the district court's finding 

that the conspiracy involved five or more participants. His 

challenge focuses instead on the extent of Delima's authority over 

other participants in the conspiracy. 

Despite Delima's attempts to downplay his role, the 

district court had sufficient evidence to find that Delima 

exercised significant authority over his coconspirators. 
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Wiretapped calls evidenced Delima's authority to make operational 

and strategic decisions concerning the conspiracy, including 

decisions regarding how many card numbers to order, when to acquire 

vehicles to carry out the scheme, where to send lower-ranking 

personnel, and who to recruit to make purchases. As such, it was 

not clear error for the district court to conclude that Delima 

"managed, superintended, or exercised hegemony over at least one 

other participant" in the conspiracy, Nuñez, 840 F.3d at 5, and 

consequently that he was a "manager or organizer" under § 3B1.1(b). 

3. Substantive Reasonableness of the Seventy-FiveMonth Sentence 

Finally, Delima challenges his seventy-five-month 

sentence on substantive reasonableness grounds. Because that 

sentence is within the Guidelines range, Delima "bears the 'heavy 

burden' of marshaling 'fairly powerful mitigating reasons and 

persuad[ing] us that the district judge was unreasonable.'" United 

States v. Carpenter, 781 F.3d 599, 622 (1st Cir. 2015) (quoting 

United States v. Madera–Ortiz, 637 F.3d 26, 30 (1st Cir. 2011)). 

Delima makes the unpersuasive argument that he should 

have been granted a downward variance because of the disparity 

between the actual losses caused by the conspiracy and the 

foreseeable losses attributed to him. As we noted above, the 

district court's reasonable calculation of the loss amount 

properly focused on intended –- not just actual -- losses 
- 22 - 

associated with the conspiracy. Actual losses were lower than 

intended losses because federal agents seized the conspirators' 

equipment and inventory, preventing the conspirators from 

profiting from the remaining numbers. That does not mitigate the 

severity of Delima's criminal conduct. 

Moreover, the district court identified several 

aggravating factors that justified imposing a sentence at the high 

end of the Guidelines range: the conspiracy was "broad-ranging" 

and crossed state lines; Delima had been convicted of a number of 

crimes in the past, including robbery and counterfeiting currency; 

Delima dove right into the credit card scheme just months after 

the conclusion of his supervised-release term; the conspiracy 

caused significant, "far-ranging" harm to Maine residents, 

including banks, credit card holders, and merchants; and the 

conspiracy "was only stopped fortuitously" by the March 2015 

apartment raid. These factors provided the district court with "a 

plausible sentencing rationale," which it used to arrive at a 

"defensible result." Reyes-Rivera, 812 F.3d at 89 (quoting Martin, 

520 F.3d at 96). Delima's sentence was not substantively 

unreasonable. 

III. Conclusion 

Delima's conviction and sentence are affirmed.