             Case: 15-12714    Date Filed: 01/06/2016   Page: 1 of 4


                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-12714
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:15-cr-20112-DPG-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

NAIK ALEJANDRA GONZA ESCUDERO,

                                                            Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                               (January 6, 2016)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and FAY, Circuit Judges.

PER CURIAM:

      The district court imposed a sentence of ten months imprisonment and two

years of supervised release on Naik Alejandra Gonza Escudero after she pleaded
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guilty to conspiracy to possess 15 or more unauthorized access devices (in this

case, credit cards), in violation of 18 U.S.C. § 1029(b)(2), and possession of 15 or

more unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3).

Escudero now challenges that sentence, contending that the district court erred in

applying three different offense level enhancements under the United States

Sentencing Guidelines. We review de novo the district court’s interpretation of the

sentencing guidelines. United States v. Duperval, 777 F.3d 1324, 1331 (11th Cir.

2015). “We review for clear error the findings of fact that underlie a determination

that a sentencing enhancement applies.” Id.

      Escudero first challenges the district court’s calculation of loss, which

supported a two-level enhancement under U.S.S.G. § 2B1.1(b)(1)(B). She

contends that there was no loss for sentencing purposes because she never used the

credit cards and she did not know whether they would work. That argument has no

merit. “When calculating loss for sentencing purposes, the district court looks to

the greater of actual loss or intended loss.” United States v. Willis, 560 F.3d 1246,

1250 (11th Cir. 2009) (quotation marks omitted). “Intended loss is the pecuniary

harm that was intended to result from the offense and it includes intended

pecuniary harm that would have been impossible or unlikely to occur.” Id.

(quotation marks omitted). In her appellate brief, Escudero admits that she “told

the [district court] that she was going to try to use the cards.” Applying the



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guidelines, the district court reasonably found that there was an intended loss that

supported an enhancement. The fact, if true, that there was no actual loss is

completely beside the point.

      Escudero next challenges the district court’s finding that a substantial part of

the fraudulent scheme was committed from outside the United States, which

supported a two-level enhancement under U.S.S.G. § 2B1.1(b)(10)(B). She

contends that there was no evidence that she or her coconspirator stole credit card

numbers in Mexico, obtained credit from Mexican banks, or purchased goods in

Mexico to resell for profit. However, the factual proffer signed by Escudero and

her statements at the change-of-plea hearing established that she obtained the

fraudulent credit cards and an identification card in Mexico, gave a false name for

use on the credit cards to the sellers in Mexico, traveled from Mexico with the

intent of using the credit cards in the United States, and gave the cards to her

coconspirator before being inspected by border officers upon entering the United

States. In light of that evidence, the district court did not clearly err in finding that

a substantial part of the fraudulent scheme was committed from outside the United

States. See United States v. Singh, 291 F.3d 756, 762 (11th Cir. 2002).

      Finally, Escudero challenges the district court’s finding that the counterfeit

credit cards were “means of identification,” which supported a two-level

enhancement under U.S.S.G. § 2B1.1(b)(11)(C)(ii). She contends that the only



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evidence that the cards were associated with actual, as opposed to fictitious,

individuals was a chart that the government submitted during sentencing. She

argues that the chart was insufficient to establish that the credit cards were

associated with actual individuals. Because she raises that argument for the first

time on appeal, we review only for plain error. United States v. Rodriguez, 398

F.3d 1291, 1298 (11th Cir. 2005). “[T]here can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving [an issue].”

United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). We are not

aware of any binding precedent in this circuit which suggests that the district court

cannot rely on a government chart to show that credit cards belonged to actual

individuals. Moreover, credit cards are means of identification. See United States

v. Auguste, 392 F.3d 1266, 1267–68 (11th Cir. 2004). The district court did not

plainly err in finding that the credit cards Escudero possessed were “means of

identification.”

      AFFIRMED.




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