First, in United States v. Gainza, --- F.3d ---, No. 19-10430 (9th Cir. 2020), the Court vacated the defendants' sentences for conspiracy to possess unauthorized access devices, access device fraud, and aggravated identity theft.
The case arose from the installation of cameras and skimmers at
ATMs.
The Court found that the district court clearly erred in calculating loss based on the total number of people who visited the ATMs at the relevant times: "The government offered insufficient evidence that the
defendants obtained or used 852 account numbers. And
while the government showed how many people used the
ATMs while the skimmers were installed, it did not provide
any evidence of the skimmer success rate, either for these
transactions or even for hypothetical transactions. Without
this evidence, the record cannot support a finding that
Gainza and Gabriele-Plage obtained information 'that can
be used to initiate a transfer of funds' from each ATM
customer. 18 U.S.C. § 1029(e)(1)."
The Court explained: "And while it is true that
the sentencing judge “need only make a reasonable estimate
of the loss,” U.S.S.G. § 2B1.1 cmt. n.3(C), that estimate
must be based on facts, not conjecture. This is not to say that
the estimate requires mathematical precision; rather, a
“reasonable estimate” can be derived from a reasonable
evaluation of the evidence."
Second, in United States v. Sineneng-Smith, --- F.3d ---, No. 15-10614 (9th Cir. 2020), the Court affirmed the defendant's convictions on two counts of encouraging and inducing an
alien to remain in the United States for the purposes of
financial gain (8 U.S.C. §§ 1324(a)(1)(A)(iv) and
1324(a)(1)(B)(i)).
If the case sounds familiar, it is. This was the case where the Ninth Circuit held the statute unconstitutional under the First Amendment. The Supreme Court vacated on other grounds (because the issue was not raised by the parties) and remanded “for
reconsideration shorn of the overbreadth inquiry.”
On remand, the panel rejected the defendant's various claims. But it "express[ed] no opinion about whether Subsection (A)(iv) is
facially overbroad in violation of the First Amendment." So this is still an open issue.
