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United States v. Jesurum

United States Court of Appeals, Second Circuit

April 14, 2016

UNITED STATES OF AMERICA, Appellee,
v.
MIGUEL JESURUM, aka Miguel Argenys Jesurun Tejada, aka rommyke2000@yahoo.com, Defendant-Appellant. [1]

         Submitted February 8, 2016.

          Appeal from the November 26, 2014 written judgment of the United States District Court for the Southern District of New York (Ramos, J.) sentencing defendant Miguel Jesurum principally to a term of 96 months' imprisonment. Because the district court properly calculated the applicable Guidelines range, we affirm the oral sentence imposed by the district court. However, we remand for the district court to amend the written judgment to conform to the oral sentence.

         RANDALL D. UNGER, Bayside, NY, for Defendant-Appellant.

         GEORGE D. TURNER and ANNA M. SKOTKO, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

         Before: KEARSE, POOLER, and SACK, Circuit Judges.

          OPINION

         POOLER, Circuit Judge :

         On March 26, 2014, defendant-appellant Miguel Jesurum pleaded guilty to a two-count indictment charging him and three codefendants with wire fraud conspiracy in violation of 18 U.S.C. § § 1343 and 1349 and aggravated identity theft in violation of 18 U.S.C. § 1028A(c). At sentencing, as is relevant here, the district court applied a six-level enhancement pursuant to 2014 U.S.S.G. § 2B1.1(b)(2)(C) because the offense involved 250 or more victims and, following a Fatico hearing, applied a four-level enhancement pursuant to 2014 U.S.S.G. § 3B1.1(a) because the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. Because the district court appropriately applied those enhancements, we reject Jesurum's argument that the orally pronounced sentence was procedurally unreasonable, and affirm. We remand for the limited purpose of allowing the district court to amend the written judgment to conform it to the oral sentence.

         BACKGROUND

         I. The Criminal Scheme

         On June 20, 2012, Jesurum and three codefendants were charged by grand jury with a two count indictment. Count 1 charged Jesurum and his codefendants with wire fraud conspiracy in violation of 18 U.S.C. § § 1343 and 1349; Count 2 charged them with aggravated identity theft in violation of 18 U.S.C. § 1028A(c). On March 26, 2014, Jesurum pleaded guilty without a plea agreement.

         The basis for Jesurum's conviction was his participation in a large-scale cell phone cloning scheme, defrauding Sprint and Sprint customers. The presentence investigation report (" PSR" ) described the scheme as follows. Sprint, a cell phone provider, uses telephone towers to allow its customers to place calls. Sprint recognizes cell phones by two unique identifiers that are programmed into every cell phone that can access the Sprint network: a Mobile Station ID (" MSID" ) and an Electronic Serial Number (" ESN" ). When a customer tries to place a call using the Sprint network, the cell phone tower will look for the MSID and ESN and will only place the call if the Sprint network recognizes the MSID and ESN as belonging to a Sprint customer. Sprint tracks its customers' cell phone use by their MSID and ESN numbers and bills its customers based on their use of the network.

         In a cell phone cloning fraud, such as this one, the perpetrator of the fraud steals or fraudulently obtains the necessary information--here, a Sprint customer's MSID and ESN--to place calls on the network. He then programs a different phone with the Sprint customer's MSID and ESN, so that calls made from the cloned phone appear to Sprint to be coming from the customer's phone, and the Sprint customer is billed for the call. Jesurum and his coconspirators obtained and used MSIDs and ESNs from tens of thousands of Sprint customers' accounts. Jesurum and his coconspirators got access to the MSIDs and ESNs illicitly by, among other means, purchasing these identifiers from nine Sprint employees who had access to the Sprint database. Jesurum profited from the scheme by selling the capacity to route calls over the Sprint network via the cloned phones at rates well below the market rates charged by Sprint. As is relevant on appeal, Jesurum does not contend that he used MSIDs and EDNs from fewer than 250 Sprint customers. Rather, he contends that the evidence shows only that one person or entity--Sprint--suffered any financial harm.

         At the plea hearing, Jesurum admitted to conspiring with others to use the " cell phone identifiers of various providers' customers without the authorization to make unauthorized calls." App'x at 44. He admitted that the plan was carried out in part over interstate email and telephone. As to the identity theft charge, Jesurum stated that, between 2009 and 2012, " in order to carry out this wire fraud crime, [he] used with unlawful authority the unique cellular identifiers of telephone service providers' customers without authorization to do so." App'x at 45. He stated that he was aware that at least some of the identifiers belonged to real people.

         II. Sentencing

         Jesurum was sentenced on November 21, 2014. At sentencing, as is relevant here, the district court applied a six-level enhancement pursuant to 2014 U.S.S.G. § 2B1.1(b)(2)(C) because the offense involved 250 or more victims and, following a Fatico hearing, applied a four-level enhancement pursuant to 2014 U.S.S.G. ยง 3B1.1(a) because the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. Based on the district court's calculation, the Guidelines range for Count 1 was 151 to 188 months, and the term for Count 2 was the term required by statute--24 months' imprisonment, to run consecutively to Count 1. The district court imposed a total sentence of 96 months' incarceration: 72 months for Count 1, to be followed by a consecutive 24 months for Count 2. The district court stated that the jail time " will be followed by two years of supervised release on Count 1 and 1 year of supervised ...


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