12-134-cr
United States v. Smith
                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
     st
the 1 day of March, two thousand thirteen.
PRESENT:  DENNY CHIN,
          CHRISTOPHER F. DRONEY,
                    Circuit Judges,
          JANE A. RESTANI,*
                    Judge.
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UNITED STATES OF AMERICA,
                    Appellee,

                        -v.-                                  12-134-cr

NATASHA SMITH,
                        Defendant-Appellant.

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FOR APPELLEE:                        Paul A. Murphy, Sandra S. Glover,
                                     Assistant United States Attorneys,
                                     for David B. Fein, United States
                                     Attorney for the District of
                                     Connecticut, New Haven,
                                     Connecticut.

FOR DEFENDANT-APPELLANT:             Todd A. Bussert, Frost Bussert LLC,
                                     New Haven, Connecticut.

            Appeal from the United States District Court for the

District of Connecticut (Hall, J.).

      *
          The Honorable Jane A. Restani, of the United States
Court of International Trade, sitting by designation.
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Defendant-appellant Natasha Smith was convicted,

following a plea of guilty, of one count of conspiracy to commit

access device fraud, in violation of 18 U.S.C. § 1029(b)(2).

During her plea allocution, Smith admitted that she agreed with

others to steal credit card numbers from patrons of a restaurant

where she worked by using a skimming device, and that she could

foresee that those credit card numbers would be used by her

coconspirators in an unauthorized manner.   The district court

sentenced her to three years' probation and ordered her to pay

restitution in the amount of $135,888.04, to be paid jointly and

severally with any other defendants convicted of the same

conspiracy, at a rate of $400.00 per month.

          On appeal, Smith challenges the restitution order

entered against her.   She argues that the district court erred by

(1) ordering her to pay restitution for losses caused by the

actions of her coconspirators, and (2) improperly failing to

apportion the loss in light of her indigence and lesser role in

the offense.   We assume the parties' familiarity with the

underlying facts, the procedural history of the case, and the

issues presented for review.

          Ordinarily, "[i]n the case of restitution orders, we

review issues solely of law de novo, findings of adjudicative
fact for clear error, and the multi-factor balancing aspects of

such an order for abuse of discretion."   United States v. Cadet,

664 F.3d 27, 34 (2d Cir. 2011) (citation omitted).   Where "a

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defendant fails to object to the restitution order at the time of

sentencing," however, our review is for plain error.    United

States v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012).

          The Mandatory Victims Restitution Act of 1996 (the

"MVRA"), 18 U.S.C. § 3663A, applies to all offenses, like

Smith's, involving fraud or deceit where an identifiable victim

sustained a loss.   See 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii),

(c)(1)(B).   The MVRA defines the term "victim" as:

          a person directly and proximately harmed as a
          result of the commission of an offense    . .
          . including, in the case of an offense that
          involves as an element a scheme, conspiracy,
          or pattern of criminal activity, any person
          directly harmed by the defendant's criminal
          conduct in the course of the scheme,
          conspiracy, or pattern.

18 U.S.C. § 3663A(a)(2).   "If the court finds that more than 1

defendant has contributed to the loss of a victim, the court may

make each defendant liable for payment of the full amount of

restitution or may apportion liability among the defendants to

reflect the level of contribution to the victim's loss and
economic circumstances of each defendant."   Id. § 3664(h).   In

United States v. Boyd, 222 F.3d 47 (2d Cir. 2000) (per curiam),

we held that the district court could impose restitution holding

the defendant liable for the "reasonably foreseeable acts of all

co-conspirators," even where the jury had acquitted the defendant

as to some aspects of the conspiracy.   Id. at 51.    In particular,

we noted that "[w]here . . . a conspiracy has multiple victims,
the [MVRA] allow[s] the sentencing court to order a single

defendant to pay restitution for all losses caused by the actions

of that defendant as well as by the actions of that defendant's

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co-conspirators, or, in its discretion, to allocate restitution

proportionately among culpable parties."   Id. at 50.

            Because Smith was convicted of a conspiracy to commit

access device fraud, the district court properly ordered

restitution for all losses caused by Smith, as well as by the

reasonably foreseeable actions of her coconspirators.   See id. at

50-51.   Smith stipulated in her plea agreement that the total

losses sustained as a result of the charged conspiracy were

$135,888.   Although she reserved the right to seek to have the
restitution obligation arising from those losses apportioned

among her and her coconspirators, and she requested the court to

impose restitution only for the losses resulting from credit

cards she personally swiped, she did not contest that the full

amount of losses resulting from the conspiracy were $135,888.

Further, the record demonstrates that -- as the district court

found -- Smith was aware that her coconspirator also was stealing

credit card information, making it reasonably foreseeable that

the conspiracy would cause substantial losses to card holders.
Accordingly, we conclude that the district court did not err in

holding Smith responsible for losses resulting from the actions

of her coconspirators in furtherance of the conspiracy.

            Further, the district court correctly noted that it had

the discretion to apportion liability among Smith and her

coconspirators or to hold Smith jointly and severally liable for
the full loss caused by the conspiracy.    See 18 U.S.C. § 3664(h).

In exercising its discretion, the court properly considered

Smith's level of contribution to the victims' losses and her


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economic circumstances.   See id.   The court offered Smith an

opportunity to argue that her financial resources rendered her

incapable of repaying the full amount of loss, and even ordered

Smith to pay a lesser monthly restitution payment than Smith

represented she could make.   Accordingly, we conclude that the

district court did not abuse its discretion in holding Smith

jointly and severally liable for the full amount of losses

suffered by victims of the conspiracy rather than apportioning

the restitution liability among Smith and her coconspirators.

          We have considered Smith's remaining arguments and
conclude that they lack merit.    Accordingly, we AFFIRM the

judgment of the district court.

                                 FOR THE COURT:
                                 Catherine O'Hagan Wolfe, Clerk




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