United States District Court, D. New Mexico
C. Anderson United States Attorney Nicholas Jon Ganjei
Kimberly A Brawley Assistant United States Attorneys United
States Attorney's Office Albuquerque, New Mexico
Attorneys for the Plaintiff
R Esquibel The Barnett Law Firm, P.A Albuquerque, New Mexico
Attorneys for the Defendant
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendant Shawn
Torrez's Objections to Presentence Investigation Report
¶ 8, at 3, filed July 19, 2018 (Doc.
28)(“Objections”). The primary issue is whether
Defendant Shawn Dale Torrez' charged offense involved ten
or more victims, and thus warrants a 2-level increase
pursuant to United States Sentencing Guidelines
(“U.S.S.G.”) § 2B1.1(b)(2)(A) and U.S.S.G.
§ 2B1.1 Application Note 4(C). Torrez argues that §
2B1.1(b)(2)(A) and § 2B1.1 Application Note 4(C) do not
apply, because “[t]here do not seem to be more than ten
victims in this case.” Objections ¶ 8, at 3.
Moreover, Torrez asserts that, “[i]f probation is
alluding to Application Note 4(C) discussion of stolen mail,
there is no information that the Special Rules of 4(C)(ii)(1)
apply.” Objections ¶ 8, at 3. Plaintiff United
States of America filed a response. See United
States' Response to Defendant's Objections to
Presentence Investigative Report, filed August 17, 2018 (Doc.
33)(“Response”). In the Response, the United
States asserts that “the parties have conferred and
come to an agreement regarding the restitution”;
however, the United States does not address whether the
parties agree that the Court should apply a 2-level increase
pursuant to § 2B1.1(b)(2)(A) and § 2B1.1
Application Note 4(C). Response ¶ 3, at 1. The United
States further asserts that the “total offense level
should be reduced to 11, ” Response ¶ 6, at 2, and
that “the parties have communicated this agreement to
the United States Probation Office and understand that either
an addendum to the presentence report or a re-disclosed
report will be prepared, ” Response ¶ 6, at 2.
Finally, the United States requests that the Court:
“(1) find that Defendant's objections to the
presentence report are moot given the parties' agreement,
” and “(2) honor the parties'
agreement.” Response ¶ 7, at 2. The United States
Probation Office filed a Second Presentence Report.
See Second Presentence Report, filed October 16,
2018 (Doc. 36)(“Second PSR”). The Second PSR
reflects that the parties agreed upon changes to the loss
amounts, but includes the 2-level increase, pursuant to
§ 2B1.1(b)(2)(A), for an offense involving ten or more
victims, see Second PSR ¶ 33, at 9, and
concludes that Torrez' Total Offense Level is 11,
see Second PSR ¶ 40, at 9. The Second PSR
further identifies more than ten victims in this case.
See Second PSR ¶¶ 15-23, at 6-9. Hence,
the Court will apply the 2-level increase.
§2B1.1(b)(2)(A) provides that “[i]f the offense .
. . (i) involved 10 or more victims; (ii) was committed
through mass-marketing; or (iii) resulted in substantial
financial hardship to one or more victims, increase by
2 levels, ” U.S.S.G. §
2B1.1(b)(2)(A) (emphasis in original), and U.S.S.G. §
2B1.1 Application Note 4(C) provides:
In a case in which undelivered United States mail was taken,
or the taking of such item was an object of the offense, or
in a case in which the stolen property received, transported,
transferred, transmitted, or possessed was undelivered United
States mail, “victim” means (I) any victim as
defined in Application Note 1; or (II) any person who was the
intended recipient, or addressee, of the undelivered United
U.S.S.G. § 2B1.1 Application Note 4(C). Application Note
4(C)'s Special Rule dictates that the 2-level enhancement
for ten or more victims applies to cases involving “a
United States Postal Service relay box, collection box,
delivery vehicle, satchel, or cart” or “a housing
unit cluster box or any similar receptacle that contains
multiple mailboxes.” U.S.S.G. § 2B1.1 Application
Note 4(C)(ii). U.S.S.G. defines “victim” as
“any person who sustained any part of the actual loss
determined under subsection (b)(1); or (B) any individual who
sustained bodily injury as a result of the offense.
‘Person' includes individuals, corporations,
companies, associations, firms, partnerships, societies, and
joint stock companies.” U.S.S.G. § 2B1.1
Application Note 1.
§ 2B1.1(b)(2)(A)'s 2-level increase applies to
Torrez' offense, because the Second PSR identifies more
than ten victims. The Second PSR states that, on March 15,
2018, “the defendant pled guilty to a four count
Indictment.” Second PSR ¶ 2, at 5. Counts 1 and 3
discuss loss to Shelton Jewelers that Torrez effected using
N.C. 's identity. See Second PSR ¶ 14, at 6.
Counts 1 and 3 involve loss to Sandia Credit Union,
see Second PSR ¶ 15, at 6, Wells Fargo, and
Capital One effected using N.C and E.M.'s identity,
see Second PSR ¶ 16, at 6. The Second PSR's
discussion of Counts 2 and 4 also references a postmarked
retirement “packet” that the unnamed intended
recipient did not receive. Second PSR ¶ 16, at 6-7.
Furthermore, Counts 1 and 3 reference loss to, among others,
Community Bank, Zale's Gem, Bank of America, Conn's
Consumer Credit, Lending Club/WesBank, Rich Ford, and
Discover Card effected using N.C. 's identity.
See Second PSR ¶ 15, at 6. The Second PSR
summarizes Torrez' “scheme and artifice” as
Torrez obtaining stolen mail which contained personal
identifying information of individuals. Torrez used said
information to alter checks, create fraudulent checks and
create a counterfeit driver's license extension. . . .
Torrez subsequently submitted fraudulent online applications
for lines of credit and for credit cards in the names of
others, including but not limited to, N.C., E.C., and E.M. .
. . Torrez used fraudulently obtained personal information to
access E.M.'s checking account and used said account to
make payments against fraudulent lines of credit obtained by
Second PSR ¶ 23, at 9.
Second PSR thus identifies the following victims as intended
recipients or addressees of undelivered United States mail:
N.C., EC, EM., and the unnamed recipient of E.M.'s
retirement packet. See Second PSR ¶ 23, at 9.
The Second PSR further identifies the following victims as
people who sustained actual loss: Shelton Jewelers, Capital
One, Wells Fargo, Sandia Credit Union, Community Bank,
Zale's Gem, Bank of America, Conn's Consumer Credit,
Lending Club/WesBank, Rich Ford, and Discover Card.
See Second PSR ¶ 15, at 6. Hence, the Court
concludes that Torrez' offense involved more than ten
victims, and the Court will therefore apply §
2B1.1(b)(2)(A)'s 2-level increase.
IS ORDERED that the objection to application of
U.S.S.G. § 2B1.1(b)(2)(A)'s 2-level increase in the
Defendant Shawn Torrez's Objections to Presentence
Investigation Report ¶ 8, at 3, filed July 19, 2018
(Doc. 28), is overruled.