     Case: 10-40478     Document: 00511533272         Page: 1     Date Filed: 07/07/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                            July 7, 2011

                                       No. 10-40478                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

MARTIN PODIO,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  (7:10-CR-6-1)


Before HIGGINBOTHAM, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
        Martin Podio pleaded guilty, pursuant to a plea agreement, to the
possession of fifteen or more counterfeit access devices—in this case, credit
cards—with intent to defraud, in violation of 18 U.S.C. § 1029(a)(3). Podio
admitted that government agents found sixteen counterfeit credit cards in his
residence and a magnetic card-encoding device in his storage unit. The district
court calculated a Sentencing Guidelines range of 24 to 30 months imprisonment
and imposed a within-Guidelines sentence at the top of that range, that is, 30

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-40478

months imprisonment followed by a three-year term of supervised release. Podio
appeals his sentence, arguing that the district court erred in applying an
enhancement for an offense “involv[ing] sophisticated means.” He also argues
that the district court failed to adequately explain the reasons for his sentence
and that the sentence imposed was substantively unreasonable.
       The application of the sophisticated-means enhancement under section
2B1.1(b)(9)(C) of the United States Sentencing Guidelines Manual,1 is a “‘factual
determination’” that “‘is reviewed for clear error.’” United States v. Conner, 537
F.3d 480, 492 (5th Cir. 2008) (quoting United States v. Powell, 124 F.3d 655, 666
(5th Cir. 1997)). Podio argues that the district court’s inference that the offense
Podio committed must have involved data hacking in order to obtain the credit
card numbers encoded onto the counterfeit cards was improper. However, Podio
also acknowledges that the district court alternatively concluded that his
possession and use of a magnetic card-encoding device itself constituted
“sophisticated means.” We pretermit the question of whether the inference of
hacking was appropriate and consider only Podio’s arguments regarding the
district court’s alternative ground.
       Podio does not contend that the use of such a device was not a
sophisticated means of committing the crime; instead, he argues only that the
court could not permissibly impose the sophisticated-means enhancement on
that basis because the same conduct served as the basis for a separate
enhancement under section 2B1.1(b)(10)(A)(i) and (B)(i) for the “possession or
use of any . . . device-making equipment” or “the production or trafficking of any
. . . counterfeit access device.” Under our well-established precedent, however,
“the Sentencing Guidelines do not forbid all double counting. Double counting
is impermissible only when the particular guidelines in question forbid it.”

       1
       The district court used the 2009 edition of the Sentencing Guidelines in this case. The
numbering and wording of the section is identical in the current (2010) edition.

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                                          No. 10-40478

United States v. Godfrey, 25 F.3d 263, 264 (5th Cir. 1994)(footnote omitted).
Further, under United States v. Calbat, any such prohibition against double
counting “must be in express language.” 266 F.3d 358, 364 (5th Cir. 2001).
       Podio argues that the word “otherwise”2 in the section in question
prohibits double counting, but this argument is specious. Read in context, the
word “otherwise” refers to other matters in the same paragraph, not to the
entirety of the Guidelines. In an unpublished case, we have held that the use of
a magnetic card-encoding device does permit the application of both the (b)(9)(C)
and (b)(10) enhancements, explaining that the “[d]efendants have not pointed
to any guideline provision that forbids the application of both enhancements,
and there is no such prohibition.” United States v. Abulyan, 380 F. App’x 409,
412 (5th Cir. 2010)(per curiam)(unpublished) (emphasis added).                           We are
persuaded that this rationale is correct. Therefore, we affirm the district court’s
use of this enhancement on the alternative ground found by the district court
and do not reach the “inference of hacking” argument.3
       Podio’s remaining arguments challenge the adequacy of the district court’s
articulation of its reasons for selecting the sentence that it did and the



       2
           Subsection (b)(9) reads, in full:

       If (A) the defendant relocated, or participated in relocating, a fraudulent scheme
       to another jurisdiction to evade law enforcement or regulatory officials; (B) a
       substantial part of a fraudulent scheme was committed from outside the United
       States; or (C) the offense otherwise involved sophisticated means, increase by
       2 levels. If the resulting offense level is less than level 12, increase to level 12.


       3
          We note also that the overall scheme involved a sophisticated interstate network.
During his interview, Podio admitted that he had purchased the cards from a person he had
met in Houston. A co-defendant stated that he had purchased credit card numbers from a
friend in Miami, Florida, and provided them to a group including Podio who would encode the
numbers onto counterfeit cards. Podio’s encoding work took place in the shadow of the
international border. His efforts to paint this situation as a mere “local crime,” therefore, ring
hollow.

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                                    No. 10-40478

substantive reasonableness of the sentence imposed. Podio concedes that he
failed to preserve either of these errors in the district court and that our review
of both issues is therefore limited by this circuit’s precedent to plain error only.
See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009);
United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). “We remedy forfeited
error only when it is plain and affects the defendant’s substantial rights. Even
when these elements are met, we have discretion to correct the forfeited error
only if it ‘seriously affects the fairness, integrity, or public reputation of judicial
proceedings.’” Mondragon-Santiago, 564 F.3d at 361 (quoting United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005)(internal citation omitted)).
      As to the alleged failure to explain, the explanation offered by the district
court for the within-Guidelines sentence imposed here, though brief, is certainly
adequate under plain error review. See Mares, 402 F.3d at 519 (“When the judge
exercises her discretion to impose a sentence within the Guideline range and
states for the record that she is doing so, little explanation is required.”); see also
Rita v. United States, 551 U.S. 338, 356 (2007) (“[W]hen a judge decides simply
to apply the Guidelines to a particular case, doing so will not necessarily require
lengthy explanation.”). As to the substantive reasonableness of the sentence,
Podio has failed to rebut the “presumption of reasonableness” that we apply to
a within-Guidelines sentence, see, e.g., United States v. Garcia Mendoza, 587
F.3d 682, 688 (5th Cir. 2009)—again, particularly given that our review is
limited to plain error.
      AFFIRMED.




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