Defendant Cannot Benefit on Direct Appeal from Guideline Amendment that Became Effective after His Sentencing if Amendment Is Substantive rather than Clarifying (unless the Commission Determines that the Amendment Should Have Retroactive Effect under § 1B1.10)
In United States v. Miguel Jesurum, No. 14-4464-cr (2d Cir. April 14, 2016), the Court (op. by Pooler, joined by Kearse and Sack) rejects appellant’s argument that (1) the sentencing court erred in finding that the offense “involved more than 250 victims,” which led to a 6-level enhancement under the 2014 version of U.S.S.G. § 2B1.1(b)(2)(C); and (2) he should receive the benefit of a 2015 amendment to the same Guideline, which became effective after his sentencing and which now calls for the same enhancement only where the offense “resulted in substantial financial hardship to five or more victims.”
The first argument fails under the plain language of Commentary to the Guideline. Application Note 4(E) to § 2B1.1 states that “[f]or purposes of subsection (b)(2), in a case involving means of identification[,] ‘victim’ means . . . any individual whose means of identification was used unlawfully or without authority.” Here, appellant pled guilty to wire fraud conspiracy and aggravated identify theft; the underlying conduct involved stealing unique identifiers (so-called MSIDs and ESNs) belonging to Sprint cellphone customers, the possession of which allowed the defendants to make calls (via cloned phones using the stolen identifiers) on Sprint’s network without charge (the calls would instead be billed to customers whose identifiers were stolen). Because those identifiers were a “means of identification,” see 18 U.S.C. § 1028(d)(7) (“means of identification” includes “any . . . telecommunication identifying information,” such as an “electronic serial number [or] mobile identification number . . . that can be used . . . to obtain . . . services . . . .”) (cross referenced in Application Note 1 of § 2B1.1), and because it was not disputed that the identifiers of more than 250 Sprint customers were stolen, the Court rejected appellant’s argument that there was only one “victim” – Sprint (the only entity that sustained a financial loss) — and upheld the enhancement.
Resolution of the second argument depends on whether the 2015 amendment to § 2B1.1(c)(2) qualifies as “substantive” or merely “clarifying. While the Court will “apply [post-sentence] amendments to the Guidelines that clarify their application on direct review,” Op. at 12 (citing United States v. Colon, 961 F.2d 41, 45-56 (2d Cir. 1992)), post-sentence amendments that “embody a substantive change to the Guidelines” “may initially be applied retroactively only by a district court.” Op. at 12 (citing United States v. Kim, 193 F.3d 567, 578 (2d Cir. 1999)).
The Court ruled that the 2015 amendment was substantive, and therefore declined to apply it on Mr. Jesurum’s appeal. Under the 2014 version in effect at the time of sentencing, whether the 6-level enhancement applies depends solely on the number of victims: If the offense “involved 250 or more victims, increase by 6 levels.” U.S.S.G. § 2B1.1(b)(2)(C) (2014 edition) (bold in original). Under the new version of the Guidelines, enacted via Amendment 792 in 2015 after Jesurum’s sentencing, whether the same enhancement applies depends both on the number of victims and the impact of the offense: If the offense “resulted in substantial hardship to 25 or more victims, increase by 6 levels.” Id. (2015 edition) (bold in original).Because “[i]t is readily apparent that Amendment 792 effects a substantive change to the Guidelines and does not merely clarify the Guidelines’ application on direct review,” the Court concluded, “ we may not apply it when assessing whether the district court erred in its application of the 2014 Guidelines.” Op. at 13-14. Instead, Mr. Jesurum must “direct any request for relief under Amendment 792 to the district court in the first instance.” Id. at 14.
And since the Commission has not (at least as of yet) made Amendment 792 retroactively applicable, Mr. Jesurum will not benefit from it unless his sentence is vacated in the future (for whatever reason) and a new sentencing ordered.