                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4829



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CONSTANCE OCCIDENT,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:05-cr-00461-GBL)


Submitted: May 23, 2007                        Decided:   July 6, 2007


Before KING, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Vincent J. Sanzone, Jr., Anthony Scordo, Elizabeth, New Jersey, for
Appellant. Chuck Rosenberg, United States Attorney, Vince Gambale,
Jack Hanly, Assistant United States Attorneys, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Following a bench trial, Constance Occident was convicted

of conspiracy to commit wire fraud, conspiracy to commit access

device fraud and wrongfully disclose individually identifiable

health    care   information,   and   aggravated   identity   theft   (four

counts), in violation of 18 U.S.C. §§ 371, 1028A, and 1349 (2000).

The court sentenced Occident to twenty-four months imprisonment on

each of the conspiracy counts, to run concurrently, and a mandatory

consecutive twenty-four month sentence on the aggravated identify

theft counts.     See 18 U.S.C. § 1028A(b).        She has noted a timely

appeal.

            The evidence presented at Occident’s trial, viewed in the

light most favorable to the Government, see United States v.

Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), was as follows.

From 1999 to July 2005, Occident was employed as a nurses’ aide by

INOVA Alexandria Hospital. During the course of her employment,

Occident    obtained   the   personal   identification    information   of

numerous patients and co-workers and then provided the stolen

identification information to co-defendant Beurn Daphne Ferdinand,

who resided in New York City.           The information       was used to

establish new credit card accounts and to access existing accounts

and obtain replacement credit cards.           Using the fraudulently

obtained credit cards, Occident and (primarily) Ferdinand purchased

a number of mostly luxury items totaling $244,370.07.


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           Occident admitted to taking the identifying information

from her co-workers’ pay stubs and paychecks, and from patient

information sheets, and providing the information to Ferdinand.

Occident claimed, however, that she did not know that Ferdinand was

using the information to obtain credit cards.            Rather, Occident

testified that she believed that Ferdinand was planning to use the

names as references on job applications. Occident also testified,

at great length, about Ferdinand’s ability to use voodoo to make

Occident comply with her demands.

           At the conclusion of the trial, the district court issued

detailed findings of fact and conclusions of law and found Occident

guilty of counts 1, 2, 8 through 10, and 12.           At sentencing, the

court   adopted   the   presentence    report’s    determination   of    loss

resulting from the identity information stolen by Occident and

provided to Ferdinand.     With a total adjusted offense level of 23

and criminal history category I, Occident’s sentencing range was

forty-six to fifty-seven months imprisonment on counts 1 and 2.

The district court imposed a below-guidelines sentence of twenty-

four months, and a mandatory minimum consecutive twenty-four-month

sentence with respect to the remaining counts.

           Occident first contends that the district court’s factual

findings were insufficient under United States v. Booker, 543 U.S.

220 (2005), and Apprendi v. New Jersey, 530 U.S. 466 (2000), to

sustain   her   convictions   for     aggravated   identity   theft     which


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resulted in a mandatory consecutive twenty-four month sentence.

Second, Occident claims that the evidence was insufficient to

support her conviction for conspiracy to commit wire fraud.

            The elements of aggravated identity theft, 18 U.S.C.

§ 1028A, are: (1) knowing use, possession, or transfer, without

lawful authority, of the means of identification of another person

and (2) that such conduct occurred during and in relation to a

felony enumerated in 18 U.S.C. § 1028A(c).       See United States v.

Montego, 442 F.3d 213, 215 (4th Cir.), cert. denied, 127 S.Ct. 366

(2006).    In turn, § 1028A(c)(5) defines an enumerated felony to

include “any provision contained in chapter 63 (relating to mail,

bank, and wire fraud).”

            The district court made specific findings that, pursuant

to   an   agreement   with   Ferdinand,   Occident   stole   identifying

information of four named patient victims. The court further found

that Occident had used a credit card obtained in one of their names

to make fraudulent purchases on her own, and had provided the

identifying information of the other victims to Ferdinand for her

to use to obtain credit cards and make purchases.      We conclude that

these findings of fact were sufficient, under Fed. R. Crim. P.

23(c),    as to each of the elements of aggravated identity theft.

            Occident also claims that there was insufficient evidence

to support the guilty verdict as to the conspiracy to commit wire

fraud charge and, therefore, there was no predicate offense to


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support the conviction for aggravated identity theft.                 To prove

wire fraud under 18 U.S.C. § 1343, the government must establish:

(1) a scheme to defraud, and (2) the use of a wire communication in

furtherance of that scheme. See United States v. Bollin, 264 F.3d

391, 407 (4th Cir. 2001).          To prove conspiracy to commit wire

fraud, the government need only prove that the defendant knowingly

and voluntarily agreed to participate in a scheme to defraud and

that the use of the interstate wires in furtherance of the scheme

was reasonably foreseeable.        United States v. Ross, 131 F.3d 970,

981 (11th Cir. 1997).       The evidence here was more than sufficient

to support the district court’s finding that Occident knowingly

participated in a scheme to commit credit card fraud. Further, the

district court’s refusal to accept Occident’s “voodoo defense” is

a credibility determination not subject to review by this court.

See United States v. Saunders, 886 F2d 56, 60 (4th Cir. 1989).

     Next, Occident argues that the district court clearly erred in

determining the amount of loss because there was no basis for the

court    to   find   that   the   losses       incurred   by   Ferdinand   were

foreseeable     to   Occident     or    that    all   losses   were   directly

attributable to the identity information furnished by Occident.

This Court reviews the district court’s estimate of loss for clear

error.   United States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003).

The Guidelines require that, for purposes of determining the

offense level for property and financial crimes, loss is the


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greater of actual or intended loss.               U.S. Sentencing Guidelines

Manual § 2B1.1, cmt. n.3(A) (2005).              “Actual loss” is defined as

“the reasonably foreseeable pecuniary harm that resulted from the

offense.” Id.       Finally, the district court makes a “reasonable

estimate of the loss, given the available information.”                       Miller,

316 F.3d at 503; USSG § 2B1.1, comment. n.3(C).

            Occident was properly held accountable for the losses

resulting from Ferdinand’s use of the fraudulent credit card

accounts.    See USSG § 1B1.3 (a)(1)(B) (providing that a defendant

involved in a joint criminal undertaking may be held responsible

for relevant conduct that includes all reasonably foreseeable

conduct of his co-conspirators that is in furtherance of the

conspiracy).      The presentence report provided an itemized total of

fraudulent charges incurred by eighteen banks and other creditors

and Occident did not dispute those figures. Contrary to Occident’s

assertion, the losses identified in the presentence report were

limited     to    those    directly    attributable        to     the     identifying

information that Occident supplied to Ferdinand.                       Therefore, the

district     court’s      findings    regarding     loss        were    not   clearly

erroneous.

            Accordingly,       we     affirm    Occident’s        conviction      and

sentence.    We    dispense   with     oral    argument because the facts and




                                       - 6 -
legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                         AFFIRMED




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