                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                      December 15, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-10344


                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                versus

                         DEBORAH KAY KLOUSE,

                                                   Defendant-Appellant.



           Appeal from the United States District Court
                for the Northern District of Texas
                           (4:05-CR-173)


Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     At issue are: whether Deborah Kay Klouse’s plea-agreement for

use of unauthorized access devices had a sufficient factual basis;

and whether the district court erred in its loss-calculation

method, including whether its denial of Klouse’s corresponding

subpoena request violated her Sixth Amendment right to compulsory

process.   AFFIRMED.




     *
       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this opinion should not be published and is not precedent except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.
                                    I.

      While employed by American Airlines (AA), Klouse became aware

of   unused   “Travel    Authorization   Certificates”   (certificates),

typically issued to travel agencies for promotional purposes.

Klouse used them to have travel tickets fraudulently issued for

free interstate and international airline travel on AA flights for

friends and family members.        Between February 2001 and January

2004, Klouse provided 26 individuals with airline tickets, many of

which were for first-class travel, for at least 88 different AA

flights.

      Klouse pleaded guilty to use of unauthorized access devices,

in violation of 18 U.S.C. § 1029(a)(2).       Based on the market value

of the airline tickets (using the lowest applicable fare), the

Presentence Investigation Report (PSR) determined        AA’s total loss

to be $166,603.75 and recommended restitution in this amount.

Klouse filed objections to the PSR, contending, inter alia, the

loss calculation should be based on AA’s internal valuation of the

certificates for tax-and-insurance purposes.          Along that line,

Klouse sought to subpoena AA to provide information regarding this

valuation.    The request was denied by the district court as seeking

irrelevant information and being unduly burdensome.

      At   sentencing,    in   determining   the   advisory   Guidelines

sentencing range, the district court:          overruled Klouse’s PSR

objections; adopted the PSR’s loss calculation; and used that


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calculation     to   impose    a   seven-level       amount-of-loss   increase,

pursuant   to   U.S.S.G.      §    2F1.1(b)(1)(H)      (2000).     After    other

adjustments, Klouse’s advisory sentencing range was 15-21 months.

She was sentenced, inter alia, to 15-months imprisonment and

restitution in the amount of $166,603.75.

                                        II.

                                        A.

      “Before entering judgment on a guilty plea, the court must

determine that there is a factual basis for the plea.”                     FED. R.

CRIM. P.   11(b)(3).          Klouse   did    not,    however,   challenge      the

sufficiency of the factual basis in district court.                Instead, she

raises the issue for the first time on appeal.                   Therefore, our

review is only for plain error.          E.g., United States v. Palmer, 456

F.3d 484, 489 (5th Cir. 2006).          Under such review, Klouse must show

a clear or obvious error that affected her substantial rights.

E.g., United States v. Alvarado-Santilano, 434 F.3d 794, 795 (5th

Cir. 2005), cert. denied, 126 S. Ct. 1812 (2006).             Generally, plain

error will be corrected only when it “has a serious effect on the

fairness, integrity, or public reputation of judicial proceedings”.

Id. (citation omitted).

      Klouse maintains the factual basis was insufficient because

the   certificates     are    neither    specifically      enumerated      in   the

statutory definition of “access device” nor subject to access-

device status as an “other means of account access”.                18 U.S.C. §


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1029(e)(1).      Further, she contends the certificates, even if

assumed arguendo to be “access devices”, are not “unauthorized”,

pursuant to 18 U.S.C. § 1029(e)(3).

     Our     court     has     not    previously      addressed   whether    such

certificates qualify as “unauthorized access devices” for the

purposes of § 1029(a)(2).             Nonetheless, we have recognized the

scope of the statutory definition of “access device” may encompass

devices not specifically enumerated.             United States v. Brewer, 835

F.2d 550, 553 (5th Cir. 1987) (recognizing the definition is “broad

enough to encompass technological advances”, our court “read long

distance access codes into the [definition]” (quotation omitted)).

In addition, “misuse of [an access device] serve[s] as further

evidence of an unauthorized access device”.                   United States v.

Inman,   411    F.3d    591,    594    (5th    Cir.   2005)   (emphasis     added)

(examining     whether       access   device   was    “unauthorized”      under   §

1029(e)(3)’s “obtained with intent to defraud” prong). Klouse does

not contend she did not misuse the certificates.

     In short, the factual basis of Klouse’s plea-agreement does

not give rise to a “clear” or “obvious” error.                Therefore, under

the applicable plain-error standard of review, this claim fails.

                                         B.

                                         1.

     Klouse also challenges the district court’s loss-calculation

method for the purposes of both the amount-of-loss enhancement and


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restitution.     The court used the market value of the airlines

tickets.

     A challenge to the method of calculation, which implicates a

Guidelines application, is reviewed de novo.              E.g., United States

v. Randall, 157 F.3d 328, 330 (5th Cir. 1998).                The propriety of a

restitution award is reviewed for abuse of discretion.                    E.g.,

United States v. Onyiego, 286 F.3d 249, 256 (5th Cir.), cert.

denied, 537 U.S. 910 (2002).

     Klouse maintains the loss should be based on AA’s internal

tax-and-insurance valuation of the certificates.                   “Ordinarily,

[however,] when property is taken ... the loss is the fair market

value of the particular property at issue”.             U.S.S.G. § 2B1.1 cmt.

n.2 (2000) (emphasis added); see also Onyiego, 286 F.3d at 255.

Where,   as   here,   market   value       is    difficult    to   determine,   a

sentencing court may use “other reasonable means to ascertain the

level of loss to the victim”.       Onyiego, 286 F.3d at 256 (citation

omitted); see also U.S.S.G. § 2F1.1 cmt. n.9 (2000) (“[t]he court

need only make a reasonable estimate of the loss, given the

available information”).       The district court did not err in its

loss-calculation method.

                                       2.

     Concomitantly, because the loss-calculation method did not

constitute error, the denial of Klouse’s subpoena request, which

sought   information    regarding      an       alternative    loss-calculation

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method, did not violate her Sixth Amendment right to compulsory

process.   United States v. Soape, 169 F.3d 257, 268 (5th Cir.)

(“when requesting a ... subpoena ..., a defendant has the duty to

demonstrate the necessity of the [information sought]”), cert.

denied, 527 U.S. 1011 (1999).

                                III.

     For the foregoing reasons, the judgment is

                                                     AFFIRMED.




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