     Case: 10-10286     Document: 00511604961         Page: 1     Date Filed: 09/16/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 16, 2011
                                     No. 10-10286
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TRACY GLENN HARRIS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:09-CR-162-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Tracy Glenn Harris appeals from his conviction of unauthorized use of an
access device, pursuant to 18 U.S.C. § 1029(a)(2).                Harris challenges the
calculation of his sentence, arguing that the district court erred by using the
aggregated total credit limits on the credit cards he fraudulently employed. He
contends that he did not recklessly endanger the full credit lines of the cards at
issue and that he had completed his offense before he was caught by the
authorities.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-10286    Document: 00511604961      Page: 2   Date Filed: 09/16/2011

                                  No. 10-10286

      Harris challenged the use of the aggregate-value methodology in the
district court. We review that issue de novo. See United States v. Harris, 597
F.3d 242, 251 (5th Cir. 2010). Harris did not contend in the district court that
the alleged completion of his offense should have been considered in the deciding
the loss calculus issue; we review that contention for plain error. See United
States v. Price, 516 F.3d 285, 286-87 (5th Cir. 2008).
      In Harris, we discussed the aggregate-value methodology and the
circumstances in which it may be employed. See Harris, 597 F.3d at 251-53,
256-57. Applying the principles of that case to our case, we conclude that the
methodology was appropriately used. The record in this case indicated that
Harris engaged in conduct placing the entire credit lines of cardholders at risk.
He obtained replacement credit cards, opened new accounts, obtained cash
advances, made fraudulent charges, withdrew cash, and made bogus payments
on the accounts he fraudulently obtained. Some of the cards evidently were
cancelled before Harris could charge them to their full credit limits. His conduct
is similar to that of the defendant in United States v. Mordi, No. 92-1675, 1993
WL 152261, **2-4 (5th Cir. Apr. 21, 1993) (unpublished), an unpublished opinion
that is precedential because it was decided before January 1, 1996. See United
States v. Gonzales, 620 F.3d 475, 476 & n.1 (5th Cir. 2010).
      Contrary to Harris’s current assertion that he had stopped his wrongdoing
of his own volition, the evidence suggests that Harris was stopped from using
the cards at issue in the loss valuation to their full limits because his fraud was
discovered by the card issuer and the cardholders, not because he saw the error
of his ways and turned over a new leaf. His conduct did not suggest that he
would have stopped using the cards had the fraud not been discovered. In other
words, the evidence does not support the contention that Harris had completed
his offense volitionally. Harris cannot demonstrate error, plain or otherwise.
See United States v. Puckett, 129 S. Ct. 1423, 1329 (2009).
      AFFIRMED.

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