     Case: 14-10016          Document: 00512975783         Page: 1     Date Filed: 03/19/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                         No. 14-10016
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
UNITED STATES OF AMERICA,                                                      March 19, 2015
                                                                                Lyle W. Cayce
                                                     Plaintiff-Appellee              Clerk

v.

MARCUS LEE HARRIS,

                                                     Defendant-Appellant



                      Appeal from the United States District Court
                           for the Northern District of Texas
                                 USDC No. 4:13-CR-8-1


Before JONES and HAYNES, Circuit Judges, and CRONE, District Judge. *
PER CURIAM: **
       Appellant Harris challenges the trial court’s failure to award him a 3-
level guidelines reduction because he did not take enough steps in his
“attempt” to steal additional credit card identities. U.S.S.G. § 2X1.1(b)(1).
Finding no clear error, we AFFIRM the sentence.
       Marcus Lee Harris pleaded guilty to one count of using a counterfeit
access device in violation of 18 U.S.C. §§ 1029(a)(1) and (c)(1)(a)(i). At the time


       *   District Judge for the Eastern District of Texas, sitting by designation.

       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 14-10016
he was apprehended, Harris was in possession of 15 counterfeit credit cards.
The investigation subsequently revealed that Harris had used 42 counterfeit
credit cards in a scheme to purchase diesel fuel. To commit fraud, Harris
obtained debit or gift cards and decoded the original numbers from them. He
then obtained valid credit card numbers and coded the numbers onto the
prepaid debit or gift cards. He embossed his name onto some of the counterfeit
cards. At sentencing, Harris and the Government agreed to a guilty plea
without an agreement. 1
       The presentence report (“PSR”) assigned Harris a base offense level of 6
pursuant to U.S.S.G. § 2B1.1(a)(2).            Harris’s total offense level of 21 and
criminal history category VI resulted in a guidelines sentencing range of 77 to
96 months in prison and a 1 to 3 year term of supervised release. 2
       After further investigation, two addenda were added to the PSR. The
second addendum alleged that an examination of Harris’s phone revealed that
Harris had possessed 131 additional credit card numbers. In addition, Harris’s
phone contained images of money transfer receipts to Vietnam, China, and
Ghana, images of international money orders, screen shots of conversations
regarding “dumps,” a term used to describe the sale of stolen credit card
numbers, text messages regarding the use of credit card numbers to purchase
diesel fuel, and text messages referencing an “ICQ” profile. 3 Investigators



       1The sentencing transcript begins with an explanation by the Federal Public Defender
for Harris as to why Harris chose to withdraw from the plea agreement, and the government
consented. Thereupon, the court conducted a mini Rule 11 colloquy because Harris still
wished to proceed with sentencing.

       2  The PSR calculated the amount of intended loss based on the credit limits of the
stolen credit card numbers. At sentencing, the district court rejected the amount of intended
loss set forth in the PSR.

       3 According to the PSR, ICQ is an instant messaging service often used to obtain stolen
credit card information.
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                                  No. 14-10016
found no evidence that Harris had fraudulently used the credit card numbers
found in his phone.
        At sentencing, the district court determined for sentencing purposes that
the amount of intended loss was $103,800. The court found that Harris had
42 cards in his possession and 131 additional numbers in his phone, and he
used or had intended to use each card or number six times to charge $100 each
time.    Harris then argued that he should receive a three-level reduction
pursuant to U.S.S.G. § 2X1.1(b)(1) because he had not completed any offense
as to the 131 credit card numbers that he had possessed but not used.
        The district court rejected Harris’s argument and found a total offense
level of 17 and a guidelines range of 51 to 63 months. The district court
sentenced Harris to 54 months in prison, three years of supervised release, and
restitution of the actual loss of $9,812.92. Harris objected to the sentence and
timely filed notice of appeal.
        On appeal, this court reviews the district court’s application of the
Federal Sentencing Guidelines de novo and its associated findings of fact for
clear error. U.S. v. Waskom, 179 F.3d 303 (1999). “There is no clear error if
the district court’s finding is plausible in light of the record as a whole.” United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
        Harris argues that a three-level reduction applies to his base offense
level because note 18 of the commentary to § 2B1.1 of the Sentencing
Guidelines, provides that “[in] the case of a partially completed offense (e.g.,
an offense involving a completed theft or fraud) the attempt level is to be
determined in accordance with the provisions of § 2X1.1.” § 2B1.1 cmt. n.18.
Under § 2X1.1, if part of the offense is an attempt, the defendant’s sentencing
level should be “[decreased] by 3 levels, unless the defendant completed all the
acts the defendant believed necessary for successful completion of the
substantive offense or the circumstances demonstrated that the defendant was
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                                 No. 14-10016
about to complete all acts but for apprehension or interruption by some similar
event beyond the defendant’s control.” § 2X1.1(b)(1).
       Whether the three-level reduction contained in § 2X1.1 is warranted
“necessarily requires a fact-specific inquiry.”     Waskom, 179 F.3d at 308.
Moreover, the application of § 2X1.1 “resists a precise standard” because of the
guideline’s focus on the defendant’s conduct in relation to the object offense.
Id.
       In Waskom, this court laid out five non-exhaustive considerations to
determine whether a reduction under § 2X1.1 is appropriate. Waskom,
179 F.3d at 308–09. Following an amendment to the Guidelines, four of the
Waskom considerations remain relevant: “(1) a focus on the substantive offense
and the defendant’s conduct in relation to that specific offense; (2) [§ 2X1.1]
does not require the reduction for a [defendant] who has made substantial
progress in his criminal endeavor simply because a significant step remains
before the substantive offense become inevitable; (3) the circumstances must
demonstrate that the balance of the significant acts completed and those
remaining tips toward completion of the substantive offense, which requires
that the district court consider the quality of the completed and remaining acts,
not simply the relative quantities of each; and (4) a sentencing court should
consider the temporal frame of the scheme and the amount of time the
defendant would have needed to finish his plan, had he not been interrupted.”
U.S. v. John, 597 F.3d 263, 283 (5th Cir. 2010) (quoting Waskom, 179 F.3d at
308–09) (internal quotation marks omitted).
       In the present case, the uncontested PSR established that Harris not
only possessed 131 credit card numbers, but also possessed text messages
referencing “dumps,” the sale of diesel fuel, and an ICQ profile, suggesting that
Harris had completed significant steps in the completion of his scheme to
purchase diesel fuel with the stolen credit card numbers.       Moreover, Harris
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                                 No. 14-10016
fraudulently used 42 counterfeit credit cards, and used each several times, over
the course of less than a month. This brief time frame suggests that Harris
was able to quickly encode the card numbers onto the prepaid debit and gift
cards. In light of the record as a whole, the district court found plausibly that
Harris was about to complete all acts necessary for the completion of the crime
but for his apprehension. Accordingly, the court did not commit clear error in
finding that the three-level reduction contained in § 2X1.1 does not apply to
Harris’s base offense level. The sentence imposed by the district court is
AFFIRMED.




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