                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 23, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 09-6213
 TEQUISHA MARIE ALICEA,                           (D.C. No. CR-09-00134-F)
                                                        (W. D. Okla.)
          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before TACHA, BRISCOE, and O’BRIEN, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

      Defendant Tequisha Marie Alicea pled guilty to one count of possessing

fifteen of more counterfeit or unauthorized access devices with the intent to



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
defraud in violation of 18 U.S.C. § 1029(a)(3), and was sentenced to 28 months’

imprisonment to be followed by a 3-year term of supervised release. Alicea now

appeals arguing (1) that the district court did not use sufficiently reliable evidence

in determining the number of victims for the purposes of calculating her United

States Sentencing Guidelines (“U.S.S.G.”) offense level and (2) that the district

court erred in varying, rather than departing upward from her advisory Guideline

range. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reject Alicea’s

arguments and AFFIRM her sentence.

                                          I.

      On April 8, 2009, Alicea was arrested after she attempted to purchase

several prepaid Visa gift cards with a Mastercard that bore the name Lisa

Richardson. At the time of Alicea’s arrest, officers searched her purse and found

a Washington state driver’s license bearing the name Lisa Richardson, along with

seven additional credit cards bearing the same name. Ten more credit cards

bearing the name Lisa Richardson were subsequently found in a car that Alicea

had rented in the same name.

      Upon further investigation by the United States Secret Service it was

determined that all eighteen cards found in Alicea’s possession were counterfeit.

Alicea had affixed each card with the pseudonym Lisa Richardson and with a

credit card number assigned to a legitimate credit card account belonging to

another person. It was also determined that several of these counterfeit cards had

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been used at various retail outlets in Oklahoma during the spring of 2009 to

purchase items whose aggregate cost exceeded $14,000.

      Subsequently, Alicea pled guilty to one count of possessing fifteen or more

counterfeit or unauthorized access devices with intent to defraud in violation of

18 U.S.C. § 1029(a)(3). The probation office then prepared a presentence report

(“PSR”) which, in relevant part, recommended applying a 2-level enhancement to

Alicea’s Guideline offense level pursuant to U.S.S.G. § 2B1.1(b)(2)(A) in light of

the fact that there were more than ten victims.

      Before sentencing, Alicea filed written objections to the PSR arguing, inter

alia, that the recommended application of § 2B1.1(b)(2)(A)’s 2-level

enhancement was in error because the only victims of her offense were the

institutions who had issued the legitimate credit card numbers she had used to

create the counterfeit cards. In response, the probation officer prepared an

addendum to the PSR stating as follows:

      [T]he probation officer spoke with the Assistant United States
      Attorney in the case. He advised that the banks are not the victims in
      the case, but that the individual businesses may take the loss. The
      investigative agent was going to do further investigation. At this
      time, if the individual businesses are considered the victims, they
      are: Wal-Mart, Quail Springs Mall, Bath & Body Works, Avis Rent a
      Car, Reasor’s, Yoga Quest, Chili’s, Courtyard by Marriott, American
      Eagle, Abercrombie and Fitch, Waffle House and Gordon’s.
      Therefore, the enhancement for 10 or more victims still applies . . . .
      Information regarding who actually sustained the losses in the case
      will be forthcoming.

ROA, Vol. 2, at 25.

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      At sentencing, Alicea renewed her objection, arguing that based upon the

manner in which Oklahoma state law sets forth the legal relationship between

credit card issuers, credit car holders, and merchants, the financial institutions

were the only foreseeable victims of her offense and, therefore, the only victims

who may be properly counted for the purposes of § 2B1.1(b)(2)(A). In response,

the government argued that the court should look to Application Note 1 to §

2B1.1(b)(2)(A), rather than to state law, in determining how to define the term

“victim.” 1 The government then presented the testimony of Secret Service Agent

James Bennett who explained that he had spoken to a fraud investigator at

Nordstrom’s Bank who told him that Nordstrom’s had charged back 2 each of the

nine merchants from whom Alicea had made purchases using a counterfeit card

bearing a legitimate Nordstrom’s number. Bennett also testified that he had

spoken to representatives of Wal-Mart and Bath & Body Works who indicated

that those stores would, in the future, be assessed chargebacks for the fraudulent

purchases Alicea had made there.

      Based on Bennett’s testimony, unobjected-to portions of the PSR, and the

relevant U.S.S.G. definition of “victim,” the district court determined that

      1
       Application Note 1 explains, in relevant part, that the term “victim”
“means [] any person who sustained any part of the actual loss . . . .”
      2
        A “chargeback” occurs when a credit card holder successfully challenges
a credit card charge through the issuing entity who, in turn, charges the amount
back to the business. See United States v. Goldstein, 442 F.3d 777, 780 (2d Cir.
2006).

                                           4
Alicea’s crime had more than ten victims and, accordingly, that the 2-level

enhancement of § 2B1.1(b)(2)(A) was warranted. This brought Alicea’s offense

level to 10, which, when coupled with her criminal history category of III,

resulted in Alicea having an advisory Guideline range for imprisonment of 10 to

16 months.

      Before hearing further argument from the parties, the district court decided

to give Alicea’s counsel “the benefit of [its] preliminary thoughts,” id. at 30,

warning that it was “concerned about whether the guideline range . . . adequately

reflect[ed] the seriousness of [Alicea’s] criminal history,” id. at 32. After hearing

from Alicea and from counsel for both parties, the district court did not, however,

depart upward based upon U.S.S.G. § 4A1.3(a)(1) (allowing for an upward

departure in cases where reliable information indicates that a defendant’s criminal

history category substantially under-represents the seriousness of his or her

criminal history), but did vary upward, sentencing Alicea to 28 months’

imprisonment in light of its belief “that [Alicea’s] guideline range is inadequate

to accomplish the objectives of sentencing set forth in [18 U.S.C. §] 3553[(a)].”

Id. Vol. 3, at 38. Specifically, the district court noted as follows:

      [T]he predominant factors that have had an impact on my sentencing
      decision in this case are to reflect the seriousness of the offense, to
      promote respect for the law, to provide adequate deterrence. I have also
      take[n] into account the background of this defendant, [and] the history
      and characteristics of this defendant.

Id. at 37-38.

                                           5
      Alicea now appeals her sentence arguing (1) that the district court did not

use sufficiently reliable evidence in determining the number of victims and (2)

that by varying upward from her advisory Guideline range based upon factors that

demand a departure, rather than a variance, the district court failed to properly

calculate her Guideline range.

                                         II.

      “When considering the calculation of a Guidelines sentencing range, we

review legal questions de novo and we review any factual findings for clear error,

giving due deference to the district court’s application of the Guidelines to the

facts.” United States v. Gambino-Zavala, 539 F.3d 1221, 1227-28 (10th Cir.

2008) (quotation and alteration omitted). Because, however, Alicea did not lodge

an objection to the district court’s decision to vary, rather than depart upward at

sentencing, we review Alicea’s second proposition for plain error. See United

States v. Robertson, 568 F.3d 1203, 1209-10 (10th Cir. 2009). “Under that

standard, we may reverse only if a defendant demonstrates an error that is plain,

which not only prejudices his substantial rights, but also seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. at 1210.

      We begin by considering Alicea’s contention that “[t]he district court did

not use reliable evidence in determining the number of victims.” Aplt. Op. Br. at

11. As previously noted, for the purposes of assessing the applicability of

U.S.S.G. § 2B1.1(b)(2)(A), the term “victim” is defined as “any person who

                                          6
sustained any part of the actual loss . . . .” See U.S.S.G. § 2B1.1 cmt. n. 1.

Thus, because the loss which results from a fraudulent credit card purchase is

allocated by contractual agreement between the card issuer, the bank processing

the credit card slip, and the merchant accepting the card, see Larry Lawrence &

Bryan D. Hull, 2 Payment Systems § 17:100 (2009), in order to determine the

number of victims in the instant case, the district court was required to determine

how the credit card issuers and merchants who Alicea defrauded had contractually

agreed to allocate their losses.

      Agent Bennett’s testimony at sentencing indicated that more than ten of the

merchants from whom Alicea made fraudulent purchases—the nine merchants to

whom Alicea had given a fraudulent Nordstom’s credit card number, plus Wal-

Mart and Bath & Body Works—had previously agreed to accept at least some part

of the loss which resulted. Although Bennett’s testimony consisted largely of

hearsay, “sentencing courts may consider hearsay evidence provided that the

evidence has sufficient indicia of reliability . . . .” United States v. Dazey, 403

F.3d 1147, 1177 n.7 (10th Cir. 2005). Alicea contends that “the agent’s lack of

personal knowledge and predictions of future events undermines the indicia of

reliability needed.” Aplt. Op. Br. at 14. We disagree.

      Although Alicea is correct to note that Bennett did not examine any of the

contracts in question before testifying, she has failed to provide a compelling

argument which suggests that this prevented Bennett from ascertaining accurate

                                           7
information about the contracts’ terms during the course of his investigation.

Further, the fact that some of Bennett’s testimony related to future chargebacks is

of no moment because we perceive no reason to believe that the reliability of

Bennett’s knowledge of the contracts’ terms was in any way dependent upon the

timing of the chargeback a particular contract might have mandated. In sum, the

district court used sufficiently reliable evidence in determining the number of

victims and accordingly, its application of the 2-level enhancement of §

2B1.1(b)(2)(A) was proper.

      Finally, we reject Alicea’s contention that the district court committed

procedural error by failing to properly calculate her advisory Guideline range.

Although the district court initially indicated its belief that a departure based

upon U.S.S.G. § 4A1.3(a)(1) might be warranted, ultimately, it decided to vary,

rather than depart, and it did so not based upon a belief that Alicea’s criminal

history category under-represented the seriousness of her criminal history, but

instead, based upon its consideration of the 18 U.S.C. § 3553(a) factors.

Accordingly, there was no procedural error.




                                           8
                                     III.

       We reject Alicea’s arguments and AFFIRM the sentence imposed by the

district court.

                                    Entered for the Court



                                    Mary Beck Briscoe
                                    Circuit Judge




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