USA v. Yaigel Hernandez Pestana

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12304
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20611-UU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YAIGEL HERNANDEZ PESTANA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 14, 2016)
Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Yaigel Hernandez Pestana appeals his 84-month sentence after pleading
guilty to one count of fraud in connection with access devices, in violation of 18
U.S.C. § 1029(a)(2); one count of possession of fifteen or more unauthorized
access devices, in violation of 18 U.S.C. § 1029(a)(3); and three counts of
aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). Pestana’s
charges arose from him misappropriating personal credit card information from
unwitting third parties, creating fraudulent credit cards using such information, and
subsequently purchasing numerous Walmart gift cards totaling $211,358.82 with
those credit cards.
On appeal, Pestana argues that his sentence is procedurally unreasonable
because the district court erred in imposing a two-level enhancement based on his
role as a leader or organizer under U.S.S.G. § 3B1.1(c).1 After reviewing the
record and considering the parties’ briefs, we conclude that the district court did
not commit reversible error in sentencing Pestana. Accordingly, we affirm.
1 Pestana also contends that the district court erred because it improperly relied on a two-
level enhancement for obstruction of justice. Specifically, he asserts that by not ruling on the
enhancement, the court took it into account. This argument is without merit. At sentencing, the
district court adopted the Presentence Investigation Report’s (PSI) calculated offense level,
which did not include the obstruction of justice enhancement. Because the calculated offense
level did not apply that enhancement, and the Government explicitly stated at sentencing that it
found the enhancement unnecessary, the district court’s silence on the issue did not amount to
reversible error affecting the ultimately-imposed sentence. Thus, we find no reversible error
based on the court’s failure to explicitly rule on the obstruction enhancement.
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I
The district court’s determination of a defendant’s role in an offense is a
factual finding that we review for clear error. See United States v. Moran, 778
F.3d 942, 979 (11th Cir. 2015). “For a factual finding to be clearly erroneous, we
must be left with a definite and firm conviction that a mistake has been
committed.” Id.
To apply a role enhancement under § 3B1.1(c), “the defendant must have
been the organizer, leader, manager, or supervisor of one or more other
participants.” U.S.S.G. § 3B1.1 cmt. n.2. A “participant” need not be convicted of
the offense, but is criminally responsible for its commission. Id. § 3B1.1 cmt. n.1.
The court should consider the following factors in evaluating Pestana’s role in the
offense:
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.
Id. § 3B1.1 cmt. n.4. However, not all factors need suggest a lead role in order to
find the enhancement applicable. See United States v. Ramirez, 426 F.3d 1344,
1356 (11th Cir. 2005) (per curiam).
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II
The district court did not clearly err in applying a two-level enhancement
for Pestana’s role in the offense under § 3B1.1(c). In executing his fraudulent
scheme, Pestana co-opted Walmart cashiers by offering them gift cards in
exchange for allowing him to swipe numerous fraudulent credit cards. Pestana
also exercised control over the frequency and magnitude of the fraudulent
transactions, and arranged the transactions to coordinate with the cashiers’ shifts.
He proactively recruited the first cashier to participate in the scheme, and kept a
dominant share of the criminal proceeds. These facts support a finding that
Pestana “had decision-making authority and exercised control” over the scheme
and its participants.2 See Ramirez, 426 F.3d at 1355. Therefore, the district court
did not clearly err in finding Pestana to be a leader or organizer under § 3B1.1(c).
See United States v. Jennings, 599 F.3d 1241, 1254 (11th Cir. 2010) (holding that
the district court did not err in finding the defendant was a leader in light of his
“extensive involvement in the development and operation of the scheme.”).
Because we find no reversible error by the district court in determining
Pestana’s sentence, we AFFIRM.
2 Pestana does not dispute that the cashiers are criminally responsible under the scheme
and therefore can be considered “participants” for purposes of § 3B1.1(c).
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