     Case: 16-31107      Document: 00514282867         Page: 1    Date Filed: 12/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-31107                                   FILED
                                  Summary Calendar                          December 21, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GIRAY BIYIKLIOGLU, also known as Johnny Bryan,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CR-202-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       A jury convicted Giray Biyiklioglu of thirteen counts of wire fraud, six
counts of aggravated identity theft, two counts of tax evasion, and nineteen
counts of money laundering. Biyiklioglu’s offenses arose out of a scheme to
defraud PayPal, Inc., 1 by using 29 different identities to transfer funds
between accounts and then dispute those transfers, resulting in credits to his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.

       PayPal is a global payment processor business that allows customers to make
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payments and send money transfers through the Internet.
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                                  No. 16-31107

accounts. As a result of that scheme, PayPal suffered a loss of more than
$418,000. The district court sentenced Biyiklioglu to 192 months, the high end
of the applicable Guidelines range.
      On his first appeal, we vacated Biyiklioglu’s conviction for five of the wire
fraud counts, one aggravated identity theft count, and the two tax evasion
counts and remanded for resentencing. See United States v. Biyiklioglu, 652
F. App’x 274 (5th Cir. 2016). On remand, the applicable Guidelines range was
132 to 159 months. The district court again sentenced Biyiklioglu to 192
months. Proceeding pro se, Biyiklioglu now appeals that sentence on two
grounds:    (1) whether the district court erred by applying sentencing
enhancements under the Guidelines based on (a) number of victims, (b)
vulnerability of victims, (c) the production of authentication features, and (d)
obstruction of justice; and (2) whether the district court’s upward variance was
substantively unreasonable. We AFFIRM.
                                        I
      Biyiklioglu argues the district court erred when it enhanced his offense
level based on the number of victims, victim vulnerability, the production of an
authentication feature, and obstruction of justice. Where, as here, a claim is
properly preserved, this court reviews the district court’s interpretation of the
Guidelines and Application Notes de novo. United States v. Cedillo-Narvaez,
761 F.3d 397, 401 (5th Cir. 2014).       However, we review a district court’s
findings of fact and its application of the Guidelines to those findings for clear
error only. Id. “A factual finding is ‘not clearly erroneous as long as it is
plausible in light of the record read as a whole.’” Id. (quoting United States v.
McMillan, 600 F.3d 434, 457-58 (5th Cir. 2010)).            “We may affirm an
enhancement on any ground supported by the record.” United States v. Garcia-
Gonzalez, 714 F.3d 306, 314 (5th Cir. 2013). The government bears the burden



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of proving the applicability of sentencing enhancements by a preponderance of
the evidence. United States v. Myers, 772 F.3d 213, 220 (5th Cir. 2014).
       The district court enhanced Biyiklioglu’s offense level by two levels
pursuant to U.S.S.G. § 2B1.1(b)(2)(A)(i), which applies when there are more
than 10 victims. A “victim” for purposes of § 2B1.1(b)(2)(A)(i) includes “any
individual whose means of identification was used unlawfully or without
authority.” U.S.S.C. § 2B1.1 cmt. 4(E). Based on the evidence that Biyiklioglu
used 29 different identities in the course of his fraudulent scheme, the district
court found that there were 29 victims. Biyiklioglu argues that many of those
identities were based on false identification documents and thus cannot
constitute actual victims. He does, however, concede that there were nine
actual victims. A preponderance of the evidence shows there were at least two
additional victims, James Smith and Ali Bildik. Smith testified at trial that
Biyiklioglu used his identity without his authorization to open a PayPal
account. 2 With respect to Bildik, according to the PSR, Bildik told government
agents that Biyiklioglu lured him into providing his personal information with
a false story. Furthermore, the government’s evidence at trial showed that
Bildik’s name was used on one of Biyiklioglu PayPal accounts. Accordingly,
the district court’s finding that there were more than 10 victims is plausible in
light of the record as a whole, and was not clear error.
       The district court also enhanced Biyiklioglu’s offense level by two levels
pursuant to U.S.S.G. § 3A1.1(b)(1), which applies “[i]f the defendant knew or
should have known a victim of the offense was a vulnerable victim.”

       2 Biyiklioglu’s reliance on the fact that we previously reversed his conviction for
aggravated identify theft with respect to Smith (Count 14) is misplaced because the
applicability of sentencing enhancements is determined based on a preponderance of the
evidence, rather than proof beyond a reasonable doubt. His reliance on Flores-Figueroa v.
United States, 556 U.S. 646 (2009), is also misplaced. Flores-Figueroa concerned the scienter
requirement with respect to aggravated identity theft under 18 U.S.C. § 1028A, not the
sentencing enhancement under § 2B1.1.


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§ 3A1.1(b)(1). For purposes of this enhancement, a vulnerable victim is one
“who is unusually vulnerable due to age, physical or mental condition, or who
is otherwise particularly susceptible to the criminal conduct.” U.S.S.G. § 3A1.1
cmt. 2. The district court found that there were at least six victims who were
vulnerable due to their status as recent immigrants, poor command of the
English language, and unfamiliarity with American banking practices. While
the mere status of being an immigrant is insufficient to establish vulnerability,
“poverty, language problems, and fears of deportation” can be sufficient. See
United States v. Garza, 429 F.3d 165, 173-74. A preponderance of the evidence
shows that at least one victim, Yaprak Apper, was unusually vulnerable, and
that is sufficient to support the application of § 3A1.1.        See U.S.S.G. §
3A1.1(b)(1) (“If the defendant knew or should have known that a victim of the
offense was a vulnerable victim, increase by 2 levels.” (emphasis added)). The
record shows that Apper was a Turkish citizen who spoke in broken English
and was unfamiliar with certain banking terms. Furthermore, Biyiklioglu
visited Apper daily at her waitressing job, promising to teach her how to buy
and sell gold using computers, and convinced Apper to open joint bank accounts
on which he was an authorized signer. Accordingly, the district court did not
clearly err.
      The district court also enhanced Biyiklioglu’s sentence another two
levels under U.S.S.G. § 2B1.1(b)(11), which applies when the offense involves
“the production or trafficking of any . . . authentication feature.”
§ 2B1.1(b)(11)(B)(ii).    The PSR identified numerous false authentication
features created by Biyiklioglu, including features in an altered letter from the
Social Security Administration, an altered passport, and an altered driver’s
license. The district court found that § 2B1.1(b)(11) applied based on those
three items.    Biyiklioglu argues that the government failed to establish



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evidence that he created the false documents.                 However, his conclusory
statements are insufficient to rebut the evidence set forth in the PSR. See
United States v. Hawkins, 866 F. 3d 344, 347 (5th Cir. 2017). A preponderance
of the evidence shows that the district court’s finding that Biyiklioglu produced
an authentication feature is plausible in light of the record as a whole, and is
not clear error.
         Finally, the district court enhanced Biyiklioglu’s offense level by two
levels pursuant to U.S.S.G. § 3C1.1 for obstructing justice. That enhancement
applies if the defendant, among other things, provided perjured trial
testimony, or if he gave “materially false information to a probation officer with
respect to a presentence or other investigation.” § 3C1.1, cmt. 4(B), (H). The
district court found that Biyiklioglu gave perjured trial testimony and that he
lied to the probation officer about contact with his father, whom he had
directed to withdraw fraud proceeds from a Turkish bank account. Biyiklioglu
has ignored the latter finding and has waived any challenge to it. See United
States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992); see also Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993) (stating that even pro se appellants must
brief arguments to preserve them). The district court’s finding that Biyiklioglu
made a materially false statement to a probation officer during the presentence
investigation is plausible in light of the record as a whole, and there is no clear
error.
                                             II
         Biyiklioglu   also   argues     that     his   sentence     was    substantively
unreasonable. 3 We review the substantive reasonableness of a sentence for an

         3The government argues that Biyiklioglu has waived any challenge to the
reasonableness of his sentence by failing to adequately brief it on appeal. However, with the
benefit of liberal construction, his brief adequately presses the issue. As the government
concedes, his arguments “can be construed as misapplication of the factors in 18 U.S.C. §
3553(a).”


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abuse of discretion. United States v. Harris, 740 F.3d 956, 968 (5th Cir. 2014).
When examining an upward variance from the guidelines range, we look to
whether the sentence “(1) does not account for a factor that should have
received significant weight, (2) gives significant weight to an irrelevant or
improper factor, or (3) represents a clear error of judgment in balancing the
sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
We duly defer to the district court’s decision that the § 3553(a) factors, “on a
whole, justify the extent of the variance.” United States v. Gerezano-Rosales,
692 F.3d 393, 401 (5th Cir. 2012) (internal quotation marks and citation
omitted). Here, the district court relied on appropriate § 3553(a) factors in
determining that an upward variance was warranted, as its reasons addressed
the nature and circumstances of Biyiklioglu’s offense, the need to protect the
public from further crimes by Biyiklioglu, and the need to deter him. See
§ 3553(a); Smith, 440 F.3d at 707. There was no abuse of discretion.
      AFFIRMED. Biyiklioglu’s motion to file a reply brief out of time is
GRANTED.




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