                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 01 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10182

             Plaintiff - Appellee,               D.C. No. 1:08-cr-00043-1

  v.
                                                 MEMORANDUM *
NATARAJAN GURUMOORTHY,

             Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Guam
            Frances Tydingco-Gatewood, Chief District Judge, Presiding

                     Argued and Submitted February 11, 2010
                               Honolulu, Hawaii

Before: FARRIS, D.W. NELSON and BEA, Circuit Judges.

       Natarajan Gurumoorthy appeals the sentence imposed following his guilty

plea to one count of possession of more than fifteen counterfeit and unauthorized

access devices, 18 U.S.C. § 1029(a)(3), and one count of possession of device-

making equipment, 18 U.S.C. § 1029(a)(4).



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Gurumoorthy’s Guidelines sentencing range was calculated at 24-30

months’ imprisonment. That range was based in part on a 10-level offense level

enhancement per U.S.S.G. § 2B1.1(b)(1)(F), for the actual and potential pecuniary

loss. The government requested a 24-month upward departure (for a total of 54

months’ imprisonment) based on U.S.S.G. § 5K2.21, Dismissed and Uncharged

Conduct. The government argued that it could have charged Gurumoorthy with

multiple counts of aggravated identity theft pursuant to 18 U.S.C. § 1028A(a)(1), a

statute that requires a minimum consecutive two-year sentence in these

circumstances. Relying on U.S.S.G. § 5K2.21 and 18 U.S.C. § 3553(a), the district

court imposed a sentence of 54 months’ imprisonment. In doing so, the district

court stated that it knew about Gurumoorthy’s life, had read all of the documents in

the file, and had listened to Gurumoorthy’s attorney’s “very strong argument

regarding [Gurumoorthy’s] conduct and how the court should proceed.” The court

emphasized the seriousness of the offense and of potential identity theft. It

concluded that the sentence imposed took into consideration § 5K2.21 and 18

U.S.C. § 3553(a) factors, achieved the purposes of sentencing, and considered the

advisory Sentencing Guidelines.

      Gurumoorthy argues that the district court violated 18 U.S.C. § 3553(c) by

failing to state adequately the reasons for its sentencing decision. Whether the


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district court provided an adequate statement of reasons for the sentence it imposed

is a question of law that we review de novo. United States v. Miqbel, 444 F.3d

1173, 1176 (9th Cir. 2006). Since Gurumoorthy failed to make this objection in

the district court, we review for plain error. Id.

      The district court’s statement of reasons did not constitute error. The district

court conducted two hearings concerning § 5K2.21. At sentencing, the court

explained its reasoning and highlighted three of the seven sentencing factors listed

in 18 U.S.C. 3553(a): (1) the nature of the offense and the history and

characteristics of Gurumoorthy; (2) the need for the sentence to reflect the

seriousness of the offense; and (3) Gurumoorthy’s sentencing range. Although the

district court did not list all of the 18 U.S.C. § 3553(a) factors, this court presumes

district judges know the law and understand their obligation to consider all of the

18 U.S.C. § 3553(a) factors. See United States v. Carty, 520 F.3d 984, 992 (9th

Cir. 2008) (en banc).

      The record contains sufficient factual findings to support the 24-month

sentencing increase. Gurumoorthy does not specify the factual findings that he

claims were missing. There were no factual disputes at sentencing. See Fed. R.

Crim. P. 32.




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      Gurumoorthy next argues that the application of § 5K2.21 was improper

double counting since the harm to victims of his actions was counted both in the

calculation of the Guidelines range per § 2B1.1(b)(1)(F), and in the application of

§ 5K2.21. “Impermissible double counting occurs when one part of the Guidelines

is applied to increase a defendant’s punishment on account of a kind of harm that

has already been fully accounted for by application of another part of the

Guidelines.” United States v. Stoterau, 524 F.3d 988, 1001 (9th Cir. 2008)

(citation omitted). However, the total magnitude of financial loss regards a

different harm than the harm described by the total number of actual or potential

victims. See United States v. Pham, 545 F.3d 712 (9th Cir. 2008). Here, the

district court considered one type of harm—the amount of the intended loss—when

it enhanced Gurumoothy’s offense level under § 2B1.1(b)(1)(F). It considered a

separate type of harm—the number of intended victims of identity theft—when it

granted the government’s motion for an upward departure under § 5K2.21. The

grief that identity theft visits upon individuals is a different injury from a purely

monetary loss. There was no impermissible double counting.

      Gurumoorthy also argues that the clear language of § 5K2.21bars the 24-

month increase imposed by the district court. He argues that the 24-month

“departure” per § 5K2.21 was improper because it was based on conduct that


                                            4
entered into the determination of the applicable Guidelines range. However, a

close reading of 18 U.S.C. § 1028A supports the application of § 5K2.21. Section

1028A penalizes a person who “knowingly transfers, possesses, or uses, without

lawful authority, a means of identification of another person,” while 18 U.S.C. §

1029(a)(3), penalizes only those who “knowingly and with an intent to defraud

possess[]” certain access devices. The separate conduct that supports an upward

departure for the uncharged § 1028A violation is Gurumoorthy’s transfer or use of

the credit cards, not merely his possession thereof with intent to defraud.

      But even if the district court had incorrectly applied § 5K2.21, we can

uphold the 24-month increase as a discretionary variance per 18 U.S.C. § 3553(a).

Since “Booker, the scheme of downward and upward departures has been replaced

by the requirement that judges impose a reasonable sentence.” United States v.

Tankersley, 537 F.3d 1100, 1113 (9th Cir. 2008). “Where, as here, a district court

frames its analysis in terms of a downward or upward departure, we treat the

so-called departure as an exercise of post-Booker discretion to sentence a

defendant outside of the applicable guidelines range . . . .” Id. at 1113-14 (internal

quotation marks omitted). We need not determine whether the district court

correctly applied the § 5K2.21 departure provision. Id. at 1114.




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      The district court was understandably concerned by the gravity of

Gurumoothy’s conduct. In its non-Guidelines sentence, the court considered the

number of counterfeit accounts that Gurumoorthy possessed and intended to use to

defraud individuals. See United States v. Pham, 545 F.3d 712, 727 (9th Cir. 2008)

(Fisher, J., concurring in part and concurring in the judgment). The court also

found that Gurumoorthy could have been charged with aggravated identity theft, a

conviction that would have resulted in a minimum consecutive sentence of 24

months’ imprisonment. Gurumoorthy’s sentence was less than half of the statutory

maximum 10-year sentence. A 54-month sentence was not an abuse of discretion.

      AFFIRMED.




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