                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 14-4059


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAYLE MENDEZ,

                Defendant – Appellant.



                            No. 14-4093


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANIESKY PAYROL SUAREZ,

                Defendant - Appellant.



                            No. 14-4094


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RENEE RODRIGUEZ,
                Defendant - Appellant.



Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District   Judge.    (1:13-cr-00259-CCE-1; 1:13-cr-00259-CCE-2;
1:13-cr-00259-CCE-4)


Submitted:   October 31, 2014            Decided:   November 7, 2014


Before KING, GREGORY, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kathleen A. Gleason, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, LLP, Greensboro, North Carolina; Don D. Carter, DON D.
CARTER, ATTORNEY AT LAW, PLLC, Greensboro, North Carolina;
Thomas H. Johnson, Jr., GRAY & JOHNSON, LLP, Greensboro, North
Carolina, for Appellants.   Ripley Rand, United States Attorney,
Frank   J.  Chut,   Jr.,   Assistant   United  States  Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            Jayle      Mendez,       Daniesky        Suarez,        and   Renee    Rodriguez

pled guilty to conspiracy to possess counterfeit access devices,

in violation of 18 U.S.C. § 1029(b)(2) (2012).                            Mendez also pled

guilty to aggravated identity theft, in violation of 18 U.S.C.

§ 1028A (2012).            The district court sentenced Mendez to fifty-

four    months’        imprisonment,            Suarez         to     forty-six     months’

imprisonment,          and         Rodriguez            to        thirty-seven       months’

imprisonment.

            On      appeal,       Appellants        raise      multiple     challenges     to

their   Guidelines          calculations            and      contest      the    substantive

reasonableness of the sentence.                     They assert that the district

court   erred       when   it:     (1)    applied       a    two-level      enhancement    to

their   base      offense        levels    for      use      of     sophisticated       means,

pursuant     to       U.S.        Sentencing         Guidelines           Manual    (“USSG”)

§ 2B1.1(b)(10) (2013); (2) miscalculated the total loss amount,

resulting      in    an     eight-level         enhancement,           pursuant    to     USSG

§ 2B1.1(b)(1)(E); (3) miscalculated the total number of victims,

resulting      in     a     four-level          enhancement,          pursuant     to     USSG

§ 2B1.1(b)(2)(B);           (4)     applied         a       two-level      enhancement      to

Suarez’s    and      Rodriguez’s         base    offense       levels      for   leadership,

pursuant to USSG § 3B1.1(c); and (5) declined to vary downward.

For the reasons that follow, we affirm.



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            We review a sentence for reasonableness, applying a

“deferential       abuse-of-discretion               standard.”           Gall    v.    United

States, 552 U.S. 38, 52 (2007).                      We first consider whether the

sentencing      court      committed         “significant              procedural      error,”

including       improper      calculation              of    the       Guidelines         range,

insufficient      consideration         of       the   18    U.S.C.      § 3553(a)        (2012)

factors,    and    inadequate      explanation              of   the    sentence       imposed.

Id. at 51; see United States v. Lynn, 592 F.3d 572, 575 (4th

Cir. 2010).        In assessing Guidelines calculations, we review

factual findings for clear error, legal conclusions de novo, and

unpreserved       arguments       for    plain         error.           United    States     v.

Strieper, 666 F.3d 288, 292 (4th Cir. 2012).                            We will find clear

error only when, “on the entire evidence[,] [we are] left with

the    definite     and    firm    conviction            that      a    mistake     has    been

committed.”       United States v. Cox, 744 F.3d 305, 308 (4th Cir.

2014) (internal quotation marks omitted).

            If we find the sentence procedurally reasonable, we

also consider its substantive reasonableness under the totality

of the circumstances.             Lynn, 592 F.3d at 578.                     The sentence

imposed must be “sufficient, but not greater than necessary, to

comply with the purposes” of sentencing.                           18 U.S.C. § 3553(a).

We    presume     on   appeal     that       a       within-Guidelines           sentence    is

substantively reasonable, and the defendant bears the burden to

“rebut the presumption by demonstrating that the sentence is

                                                 4
unreasonable       when    measured    against        the   § 3553(a)      factors.”

United    States    v.    Montes-Pineda,     445     F.3d   375,    379    (4th    Cir.

2006) (internal quotation marks omitted).

            We     first     address    Appellants’         argument       that     the

district court erred in applying the two-level enhancement for

sophisticated       means.       The    sophisticated         means       enhancement

applies     when    a     defendant     employs       “especially      complex       or

especially intricate offense conduct pertaining to the execution

or concealment of an offense.”           USSG § 2B1.1 cmt. n.9(B).                While

the   scheme       must    involve     “more        than    the    concealment       or

complexities inherent in fraud,” United States v. Adepoju, 758

F.3d 250, 257 (4th Cir. 2014), courts can find that a defendant

used sophisticated means even where he did “not utilize the most

complex means possible to conceal his fraudulent activit[y].”

United States v. Jinwright, 683 F.3d 471, 486 (4th Cir. 2012).

Moreover,      a    defendant’s       individual       actions      need     not    be

sophisticated so long as the scheme as a whole is sophisticated.

Adepoju, 756 F.3d at 257; Jinwright, 683 F.3d at 486.

            Appellants’ scheme was sufficiently complex to support

this enhancement.         They not only obtained 198 stolen credit card

account numbers, but also disguised their fraudulent purchases

by encoding stored-value cards with the stolen account numbers,

making    their     purchases     appear       as     legitimate      transactions.



                                         5
Appellants’        assertions        regarding         relocation     are    unpersuasive

because the totality of the offense was otherwise sophisticated.

              Moreover,        the   district         court’s    application      of   this

enhancement        did   not    result      in       impermissible      double   counting.

“Double counting occurs when a provision of the Guidelines is

applied to increase punishment on the basis of a consideration

that has been accounted for by application of another Guideline

provision or by application of a statute.”                              United States v.

Reevey,      364   F.3d   151,       158    (4th      Cir.   2004).       “[T]here     is    a

presumption that double counting is proper where not expressly

prohibited by the guidelines.”                       United States v. Hampton, 628

F.3d       654,    664    (4th       Cir.        2010).         Here,       neither    USSG

§ 2B1.1(b)(10) nor (b)(11) contains language prohibiting double

counting as to the provisions applied to Appellants.                             Further,

as   discussed       above,      the       sophisticated        means    enhancement        is

supported by factors beyond the mere possession of device-making

equipment and production of counterfeit access devices.

              We next address Suarez’s and Rodriguez’s argument that

the district court incorrectly calculated the total loss figure. *

       *
       Appellants contend that Mendez did not object to the loss
calculation at sentencing and, therefore, waived appellate
review.   A review of the record, however, reveals that Mendez
objected to the loss enhancement in a written submission and at
sentencing. From Appellants’ brief, it appears that Mendez does
not assert this issue on appeal; however, even if he did, Mendez
would not be entitled to relief as explained above.


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The district court “need only make a reasonable estimate of the

loss.”    United States v. Cloud, 680 F.3d 396, 409 (4th Cir.

2012) (internal quotation marks omitted).                 Generally, “loss is

the greater of actual loss or intended loss.”                 USSG § 2B1.1 cmt.

n.3(A); see USSG § 2B1.1 cmt. n.3(A)(i) (defining “actual loss”

as “reasonably foreseeable pecuniary harm that resulted from the

offense”).      Special rules govern determinations of loss in cases

involving stolen or counterfeit credit cards and access devices.

USSG § 2B1.1 cmt. n.3(F)(i).            In such cases, “loss includes any

unauthorized      charges      made     with     the    counterfeit . . .     or

unauthorized access device and shall be not less than $500 per

access device.”     Id.

           We    find     no   clear     error     in   the   district   court’s

calculation of total loss.            In adopting the PSRs, the court used

the $500-per-device multiplier in accordance with USSG § 2B1.1

cmt. n.3(F)(i), resulting in a loss that reflected both the loss

from used cards and the reasonably foreseeable loss from unused

cards.   This was a reasonable estimate based on a preponderance

of the evidence.

           We next address Suarez’s and Rodriguez’s argument that

the district court incorrectly calculated the total number of

victims, resulting in a four-level enhancement.                  A review of the

record reveals that this issue was not preserved below; thus, we

review   for    plain   error.         Strieper,    666   F.3d    at   292.   To

                                         7
establish        plain    error,     an    appellant    must    show    “(1)    that    the

district court erred, (2) that the error is clear or obvious,

and (3) that the error affected his substantial rights, meaning

that     ‘it       affected     the        outcome     of      the     district       court

proceedings.’”           United States v. Webb, 738 F.3d 638, 640-41 (4th

Cir. 2013) (quoting United States v. Olano, 507 U.S. 725, 732-34

(1993)).          Suarez and Rodriguez fail to satisfy their burden.

Even assuming they adequately establish that the district court

erred, they make no assertions that such error was clear or

obvious or affected their substantial rights.                           See Lynn, 592

F.3d   at    580     &   n.5   (requiring         appellant     to   show     that    error

affected       his   substantial          rights).     Therefore,       we    discern    no

reversible error in the district court’s victim calculation and

resulting enhancement.

                 We next address Suarez’s and Rodriguez’s challenge to

the    leadership        enhancement.          To    qualify     for    the    two-level

enhancement, a defendant must have been “an organizer, leader,

manager, or supervisor in any criminal activity” that involved

fewer than five participants and was not otherwise extensive.

USSG § 3B1.1(c).           “Leadership over only one other participant is

sufficient as long as there is some control exercised.”                              United

States      v.    Rashwan,     328    F.3d    160,     166   (4th    Cir.     2003).     A

preponderance of the evidence supported the finding that Suarez

and Rodriguez exercised some degree of control over both the

                                              8
operation        and        the        activities           of    the       others       involved.

Accordingly, we conclude that the district court did not err by

applying the two-level enhancement.

               Finally,         we     address     Appellants’           argument        that   the

district court erred by not imposing downward variant sentences.

Having determined that there is no significant procedural error,

we    consider       the     substantive          reasonableness            of    the    sentence,

“taking into account the totality of the circumstances.”                                      Gall,

552     U.S.    at     51.           We    apply       a    presumption          of   substantive

reasonableness             to        sentences         within         properly          calculated

Guidelines ranges.              See United States v. Susi, 674 F.3d 278, 289

(4th Cir. 2012).             Nothing in the record overcomes the appellate

presumption          of     reasonableness             afforded         Appellants’        within-

Guidelines sentences.                  Therefore, we conclude that the district

court     did    not       commit         any    substantive          error      in     sentencing

Appellants.

               Accordingly, we affirm the district court’s judgments.

We    dispense       with       oral      argument         because    the    facts      and   legal

contentions      are       adequately           presented        in   the    materials        before

this court, and argument would not aid the decisional process.



                                                                                          AFFIRMED




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