1

It is a crime to produce, use, traffic in, or possess

counterfeit access devices or device-making equipment with intent

to defraud. 18 U.S.C.A. §§ 1029(a)(1), (a)(3) (Supp.1996). 

Conspiracy to commit these acts is also a crime. Id. §

1029(b)(2). "Access devices" include credit cards. Id. §

1029(e). 

United States Court of Appeals,

Eleventh Circuit.

No. 96-4526

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Mario DOMINGUEZ, a.k.a. German Oliva, Defendant-Appellant.

April 7, 1997.

Appeal from the United States District Court for the Southern

District of Florida. (No. 95--656-Cr), Stanley Marcus, District

Judge.

Before ANDERSON and BLACK, Circuit Judges, and KRAVITCH, Senior

Circuit Judge.

KRAVITCH, Senior Circuit Judge:

After pleading guilty to conspiring to commit credit card

fraud,1

 Mario Dominguez appeals his sentence as excessive in light

of the loss occasioned by his conduct. We affirm.

I.

When Secret Service Special Agent Roberto Villanueva learned

that Antonio Gonzalez was in the market to sell stolen and

counterfeit credit cards, he arranged an undercover sting of

Gonzalez's operation. Upon meeting Gonzalez, Special Agent

Villanueva expressed an interest in doing business and purchased

one counterfeit card and one stolen to verify that they were

usable. Two days later, Gonzalez provided twenty additional stolen
 2

Special Agent Villanueva testified that he and other agents

only had time to check on the credit available in nine of the

twenty accounts between meetings. 

 3Dominguez protests that Gonzalez never informed him of the

cards' available credit. The district court, however,

specifically credited Special Agent Villanueva's testimony to the

contrary. Upon review of the record, we find no error. 

credit card numbers which he claimed could be made into working

cards and gave these numbers to Special Agent Villanueva to verify.

Secret Service agents confirmed that the available credit on nine

of these cards was approximately $250,000.2

When Special Agent Villanueva next spoke to Gonzalez, he told

Gonzalez the amount of available credit on the nine cards and

ordered those cards manufactured immediately. The parties

negotiated a price of $40,000 for the cards, based upon a

percentage of the cards' available credit. Gonzalez told Special

Agent Villanueva that "Mieto"—later identified as appellant

Dominguez—would produce the cards. Gonzalez then telephoned

Dominguez and Jose Rodriguez, an unindicted co-conspirator, who

actually made the counterfeit cards. Gonzalez instructed Dominguez

to make the nine cards and told him that the cards had

approximately $200,000 in available credit.3

 Authorities arrested

Dominguez the next day, when he took delivery of his share of the

proceeds from the sale.

II.

 Following his guilty plea, the district court sentenced

Dominguez pursuant to U.S.S.G. § 2F1.1, under which a defendant's

base offense level is increased relative to the financial loss

associated with the crime. The court increased Dominguez's offense
 4

Section 2F1.1 incorporates the valuation of loss provisions

discussed in section 2B1.1. U.S.S.G. § 2F1.1, comment. (n. 7). 

eight levels to reflect a fraud in excess of $200,000. Dominguez

timely objected to this ruling and argues here that the district

court misapplied section 2F1.1. We review the district court's

interpretation of the Sentencing Guidelines de novo, United States

v. Toussaint, 84 F.3d 1406, 1407 (11th Cir.1996), and its loss

calculations for clear error. United States v. Calhoon, 97 F.3d

518, 530 (11th Cir.1996).

Generally, a defendant sentenced under section 2F1.1 is

subject to an offense level increase based on the greater of: (1)

the actual loss associated with a crime; or (2) the intended loss.

U.S.S.G. § 2F1.1, comment. (n. 7); Calhoon, 97 F.3d at 531. In

cases of credit card fraud, a court may not estimate the actual

loss at less than $100 per card. U.S.S.G. § 2B1.1, comment. (n.

3).4

 Dominguez argues that he should be held liable only for the

$100-per-card minimum, reasoning that there is insufficient

evidence of intended loss and no actual loss, as the credit cards

were sold to the government. We disagree.

 The district court's estimate of the intended loss from the

conspiracy was not clear error. A court's valuation of loss "need

not be made "with precision.' " United States v. Wilson, 993 F.2d

214, 218 (11th Cir.1993) (quoting U.S.S.G. § 2F1.1, comment. (n.

8)); U.S.S.G. § 2B1.1, comment. (n. 3). Rather, although "the

district court must not speculate concerning the existence of a

fact which would permit a more severe sentence under the

guidelines," Wilson, 993 F.2d at 218, its reasonable estimate of
 5

We express no opinion as to the proper result in a case

where the defendant is unaware of the credit limits of, or

available credit on, counterfeit cards and the district court

bases its sentence on those amounts. Compare United States v.

Sowels, 998 F.2d 249, 251 (5th Cir.1993) (where defendant stole

credit cards, he put fraud victims at risk of losing entire

amount of credit available, so use of credit limits of cards was

reasonable estimate of intended loss), cert. denied, 510 U.S.

1121, 114 S.Ct. 1076, 127 L.Ed.2d 393 (1994) with United States

v. Allison, 86 F.3d 940, 943-44 (9th Cir.1996) (declining to

follow Sowels in fraud case; insisting on "realistic, economic

approach to determining what losses the defendant truly ...

intended to cause"). It suffices for this case to hold that a

sentence based on the available credit known to the defendant is

a reasonable estimate of the intended loss. 

the intended loss will be upheld on appeal. See U.S.S.G. § 2F1.1,

comment. (n. 8). Here, because Dominguez knew that he was

producing cards with approximately $200,000 in available credit and

because the price charged by the conspirators reflected a

percentage of that credit, the district court estimated that

Dominguez intended a loss in excess of $200,000. This was proper.

Where the district court has evidence that the defendant knew the

amount of available credit on counterfeit cards he conspired to

produce and distribute, the available credit is a reasonable

estimate of the intended loss.5

This holding comports with rulings from our sister circuits.

See, e.g., United States v. Egemonye, 62 F.3d 425, 428-29 (1st

Cir.1995) (where defendant instructed others to use cards to

withdraw cash at or near credit limits and arranged for deposit of

stolen checks to replenish limits, use of aggregate credit limit

was reasonable estimate of intended loss); United States v.

Koenig, 952 F.2d 267, 271-72 (9th Cir.1991) (where defendant once

stated that each stolen cash card could yield $500, use of $500 per

card estimate reflected defendant's intended gain and was
 6

Indeed, Yellowe stands for the opposite presumption. The

court noted that $100 is "the presumed minimum loss" per card. 

Id. at 1112 (emphasis added). 

reasonable estimate of intended loss). Although Dominguez urges us

to follow United States v. Yellowe, 24 F.3d 1110 (9th Cir.1994), it

is not contrary to our holding. In that case, the court approved

as reasonable the district court's valuation of loss based on the

$100-per-card minimum. It did not, however, establish that $100 is

the "presumed loss," as Dominguez asserts,6 nor did it cast doubt

on the rule we apply here. Unlike the instant case, the government

adduced no evidence in Yellowe that any loss might result from the

stolen credit card numbers—the court noted that the district court

received testimony about the scheme, but the government "did not

know how much available credit any of the customers had." Id. at

1112. Thus, we conclude that Yellowe is distinguishable and that

our holding is consistent with other courts' decisions on this

issue.

III.

Accordingly, Dominguez's sentence is AFFIRMED.