In U.S. v. Cruz, No. 11-12568 (March 26, 2013), the Court, for an offense involving aggravated identity theft, upheld (1) the imposition of a sentence enhancement under U.S.S.G. § 2B1.10(b)(1) for the use of device-making equipment, and (2) a sentence enhancement under § 3B1.3 for abuse-of-trust.
The offense involved the fraudulent use of credit card numbers obtained through a waitress at a restaurant who used a credit card skimmer. Cruz claimed that he should not be subject to the § 2B1.10(b)(1) use-of-device-making-equipment enhancement, because another Guideline provided that this enhancement was inapplicable when a defendant, like Cruz, was already subject to the mandatory term of imprisonment under 18 U.S.C. § 1028A for aggravated identity theft. Rejecting this argument, the Court held that the Guideline only precluded an additional enhancement based on “the transfer, possession, or use of a means of identification,” not based on the use of device-making equipment.
The Court also rejected the argument of a cashier at a Target store that her position as a mere cashier did not create the kind of trust that triggered an “abuse of trust” sentence enhancement. The Court found that the cashier abused the authority of her position at Target to help co-conspirators use credit cards without authorization.