United States v. Delima

17-1132P

2018 | Cited 0 times | First Circuit | March 26, 2018

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.

LYNCH, Circuit Judge. Malik Delima pleaded guilty in

2016 to conspiring to commit access-device fraud after court-

approved 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 four-

level enhancement as an organizer or leader. As a result of the

court's findings on the two enhancements and the acceptance-of-

responsibility reduction, Delima's total offense level was twenty-

four. Combined with a CHC of III,4 the applicable sentencing range

was 63-78 months.

The district court ultimately imposed a seventy-five-

month 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 wiretap-

authorization 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 seventy-

five-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-Five- Month 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

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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.

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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.

LYNCH, Circuit Judge. Malik Delima pleaded guilty in

2016 to conspiring to commit access-device fraud after court-

approved 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 four-

level enhancement as an organizer or leader. As a result of the

court's findings on the two enhancements and the acceptance-of-

responsibility reduction, Delima's total offense level was twenty-

four. Combined with a CHC of III,4 the applicable sentencing range

was 63-78 months.

The district court ultimately imposed a seventy-five-

month 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 wiretap-

authorization 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 seventy-

five-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-Five- Month 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

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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.

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