                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                               ________________________           FILED
                                                         U.S. COURT OF APPEALS
                                      No. 10-10073         ELEVENTH CIRCUIT
                                  Non-Argument Calendar      JANUARY 7, 2011
                                ________________________        JOHN LEY
                                                                 CLERK
                            D.C. Docket No. 0:09-cr-60172-PAS-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                               Plaintiff-Appellee,

                                             versus


HRACH NIKOGHOSYAN,
lllllllllllllllllllll                                         Defendant-Appellant.
                      ________________________

                                      No. 10-10074
                                  Non-Argument Calendar
                                ________________________

                            D.C. Docket No. 0:90-cr-60172-PAS-2

UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,
                                          versus

VARDGES NIKOGHOSYAN,

                                                                  Defendant-Appellant.
                          ________________________

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

                                 (January 7, 2011)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Hrach and Vardges Nikoghosyan (“Defendants”) appeal their thirty-month

sentences for conspiracy to commit offenses against the United States in violation

of 18 U.S.C. § 371 through access device fraud, in violation of 18 U.S.C.

§ 1029(a)(1), and theft of U.S. postage stamps, in violation of 18 U.S.C. § 641.

Defendants conspired to generate counterfeit credit cards using illegally obtained

credit card numbers and used these cards to purchase postage stamps. For

purposes of U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2B1.1(b), the

district court counted as victims the seventy-six defrauded banks, the United

States Postal Service, and the 430 identified individuals whose account numbers

were unlawfully used and applied the six-level enhancement for an offense

involving over 250 victims. Defendants argue that the district court erred in

counting the individual account holders because their losses were quickly credited



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or reimbursed by third parties, and that the appropriate enhancement would have

been the four-level increase for an offense involving over 50 victims. However,

we find no error in the district court’s application of the Guidelines for the reasons

discussed below.

      We review a district court’s application and interpretation of the Guidelines

de novo, and its factual findings for clear error. United States v. Lee, 427 F.3d

881, 892 (11th Cir. 2005). The law of this Circuit is “emphatic” that only the

Supreme Court or this Court sitting en banc can judicially overrule a prior panel

decision. Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997).

      U.S.S.G. § 2B1.1(b)(2)(C) provides that the base offense level for offenses

of this form shall be increased by six levels if the offense involves 250 or more

victims. The guidelines commentary defines a “victim” as “any person who

sustained any part of the actual loss determined under subsection (b)(1).” Id. §

2B1.1, cmt. n.1. The commentary defines “actual loss” as “reasonably foreseeable

pecuniary harm that resulted from the offense.” Id. cmt. n.3(A)(i). Reasonably

foreseeable pecuniary harm means monetary harm that “the defendant knew or,

under the circumstances, reasonably should have known, was a potential result of

the offense.” Id. cmt. n.3(A)(iii)–(iv). Pursuant to a recent update to the

commentary for Subsection (b)(2), a “victim” is also defined as “any individual

                                          3
whose means of identification was used unlawfully or without authority” when the

offense involves a means of identification. Id. cmt. n.4(E); id. supp. to app. C,

amend. 726. A “means of identification” includes an account number. 18 U.S.C.

§§ 1028(d)(7)(D), 1029(e)(1); U.S.S.G. § 2B1.1, cmt. n.1.

      We have previously concluded that the Guidelines allow a district court to

find that a reimbursed party has suffered a loss, and thus to treat that party as a

victim. Lee, 427 F.3d at 895. In Lee, the defendants were convicted of mail fraud

after writing checks on closed bank accounts. Id. at 884-85. While some check

recipients were able to recoup their losses, other payees did not recover their

losses. Id. at 885–86. In sentencing the defendants, the district court applied a

two-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A)(i), finding that the

offense involved ten or more victims. Lee, 427 F.3d at 894. On appeal, the

defendants challenged the enhancement, arguing that the district court erred in

determining the number of victims because some of the check recipients were able

to offset their losses, and therefore, those individuals should not have been

considered victims under the enhancement. Id. We rejected that argument and

held that the district court properly imposed the two-level enhancement because

reimbursed victims nonetheless suffer an initial loss. Id. at 895.

      Upon review of the record and upon consideration of the parties’ briefs, we

                                           4
affirm. Our decision in Lee is binding and has not been overruled by the Supreme

Court or this Court sitting en banc, and we are thus bound by it. Furthermore, our

holding in Lee is consistent with the recently updated commentary for § 2B1.1,

which defines a “victim” without regard to whether an individual is subsequently

reimbursed. See U.S.S.G. § 2B1.1, cmt. n.4(E); id. supp. to app. C, amend. 726.

Appellants’ request for oral argument is denied.

      AFFIRMED.




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