Case: 12-14250   Date Filed: 09/05/2013   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14250
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:12-cr-20070-PAS-2



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

DELVIS BERMUDEZ,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (September 5, 2013)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Delvis Bermudez appeals his total 75-month sentence after pleading guilty

to (1) conspiracy to commit access device fraud, in violation of 18 U.S.C. §

1029(b)(2); (2) possession of access device making equipment, in violation of 18

U.S.C. § 1029(a)(4); and (3) six counts of aggravated identity theft, in violation of

18 U.S.C. § 1028A(a)(1). Bermudez was involved in a conspiracy to skim credit

card numbers and transfer them to fraudulent credit cards, which he then used to

make purchases for himself. He admitted to recruiting his girlfriend, Maite

Hernandez, and to providing skimming devices to Sergio Diego, Hernandez’s

brother, among other individuals. He further admitted that, after the skimming

devices had captured credit card numbers, he would download those numbers onto

his computer. He also installed skimming software onto one of Diego’s

computers, though no numbers were later found on that computer. In addition, he

admitted that Diego and Hernandez worked at his behest. There were 180 victims,

consisting of 163 individuals and 17 financial institutions, and the district court

held him responsible for the actual loss amount of $124,000. The district court

also applied a leadership role enhancement pursuant to U.S.S.G. § 3B1.1(a).

      On appeal, Bermudez argues that the district court committed two errors.

First, he asserts that the district court erred in applying the leadership role

enhancement. Second, he argues that the court erred in determining the loss




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amount as the loss amount was only $81,500. After careful review, we affirm

Bermudez’s sentence.

                         I.     Leadership Role Enhancement

      We review the district court’s decision to apply a leadership role

enhancement for clear error. United States v. Barrington, 

, 1200

(11th Cir. 2011), cert. denied, __ U.S. __, 

(2012). Under this

standard, we do not reverse unless left with a “definite and firm conviction that a

mistake has been committed.” United States v. Poirier, 

, 1035 (11th

Cir. 2003) (quoting Coggin v. Commissioner, 

, 860 (11th Cir. 1996)).

Facts contained in a presentence investigation report (“PSI”) are deemed admitted

and may be used to support a guideline enhancement unless a defendant objects to

the facts before the sentencing court. United States v. Beckles, 

, 844

(11th Cir. 2009).

      The government must prove the existence of an aggravating role by a

preponderance of the evidence. United States v. Yates, 

, 1182 (11th

Cir. 1993). Section 3B1.1 of the Sentencing Guidelines provides for a four-level

aggravating role enhancement “[i]f the defendant was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise

extensive.” U.S.S.G. § 3B1.1(a). Factors that should be considered in determining

if a defendant was an organizer or leader include


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      the exercise of decision making authority, the nature of participation
      in the commission of the offense, the recruitment of accomplices, the
      claimed right to a larger share of the fruits of the crime, the degree of
      participation in planning or organizing the offense, the nature and
      scope of the illegal activity, and the degree of control and authority
      exercised over others.

(n.4).

      The district court did not clearly err in applying a leadership role

enhancement. Because Bermudez asserted at sentencing that the PSI did not

contain any factual inaccuracies, the facts contained in the PSI are deemed

admitted. Bermudez exercised decision making authority as Hernandez and Diego

worked at the behest of Bermudez. Bermudez recruited Hernandez, used the stolen

credit cards to fund his lifestyle, provided skimming devices to Diego, and used his

own computer to retrieve the numbers from the skimming devices. Based on these

facts and others contained in the PSI, the court did not clearly err in determining

that Bermudez was an organizer or leader under § 3B1.1(a).

                               II.   Loss Determination

      We review the district court’s loss determination for clear error. United

States v. Woodard, 

, 1087 (11th Cir. 2006). For offenses involving

fraud, the Guidelines provide for an increase to a defendant’s offense level

depending on the amount of loss that resulted from the fraud. U.S.S.G.

§ 2B1.1(b)(1). The offense level is increased by ten levels when the amount of

loss is greater than $120,000, but less than $200,000. 

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“When calculating loss for sentencing purposes, the district court looks to the

‘greater of actual loss or intended loss.’” United States v. Willis, 

,

1250 (11th Cir. 2009) (quoting U.S.S.G. § 2B1.1, comment. (n.3(A))). When a

case involves counterfeit credit cards, the “loss includes any unauthorized charges

made with the counterfeit access device or unauthorized access device and shall be

not less than $500 per access device.” U.S.S.G. § 2B1.1, comment. (n.3(F)(i)).

      Bermudez argues that the loss amount should be $500 times the number of

compromised accounts, and therefore that the evidence only establishes a loss

amount of $81,500. We disagree. Under the Guidelines, the loss amount is the

actual amount charged to the counterfeit cards, which could be over $500. Only if

the actual amount charged to a card is less than $500 does the court increase the

loss amount to $500 for that card. The PSI indicated—and Bermudez admitted—

that the actual loss on many of the credit cards was greater than $500.

Accordingly, the court correctly found that the loss amount would have been at

least the actual amount charged to the cards.

                                   III.   Conclusion

      Based on a thorough review of the record on appeal, and after consideration

of the parties’ briefs, we affirm Bermudez’s sentence.

      AFFIRMED.




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