Aggregate value of credit limits for individual credit cards establishes amount of loss for sentencing purposes for crime of access device fraud

SENTENCING United States v. Lin, No. 04-6011, ___ F.3d ___ (10th Cir. Jun. 7, 2005)(W.D. Oklahoma). Appeal of sentence for using or causing others to use altered or counterfeit access devices in violation of 18 U.S.C. § 1029. HELD: (1) Under plain error analysis, constitutional Booker error resulting from use of judge-found sentencing facts did not seriously affect fairness, integrity, or public reputation of proceedings. Therefore, error does not warrant reversal. (2) Title 18 U.S.C. § 1029 is statute that punishes access device/credit card fraud scheme, not simply taking of money. Once defendant has engaged in scheme, culpability is established, and for sentencing purposes, only potential scope of scheme need be determined. Scope is properly inferred from aggregate credit limits of credit cards made part of scheme, not actual amount of loss caused by defendants. Read the opinion here.