e-Journal Summary

e-Journal Number : 76294
Opinion Date : 10/05/2021
e-Journal Date : 10/20/2021
Court : U.S. Court of Appeals Sixth Circuit
Case Name : United States v. Nicolescu
Practice Area(s) : Criminal Law
Judge(s) : White (except as to Section III.D), Nalbandian, and Larsen; Dissenting from Section III.D – White
Full Text Opinion

Conspiracy to damage a protected computer;18 USC §§ 1030(a)(5)(A) & (c)(4)(B); Aggravated identity theft (§ 1028A); Sentencing; USSG § 2B1.1(b)(1)(J) (enhancement for causing losses of more than $3.5 million but less than $9.5 million); § 2B1.1(b)(4) (being in the business of receiving & selling stolen property); § 3B1.1(a) (leadership-role enhancement); § 2B1.1(b)(11)(B)(i) (“trafficking” unauthorized access devices); Whether § 2B1.1(b)(11)(B)(i)’s two-level enhancement can apply to a defendant convicted of aggravated identity theft; Four-level enhancement under § 2B1.1(b)(19)(A)(ii) for being convicted of an offense under § 1030(a)(5)(A); Internet Crime Complaint Center (ICCC)


Joining other circuits, the court held that application of the two-level sentencing enhancement under § 2B1.1(b)(4) is limited to defendants who sold goods that others had stolen, as opposed to those who sold goods they had stolen. It also held that § 2B1.1(b)(11)(B)(i)’s two-level enhancement for trafficking an unauthorized access device can apply to a defendant convicted of aggravated identity theft. Defendants-Nicolescu and Miclaus ran a cyber-fraud ring (Bayrob) out of Romania. They were extradited to the U.S. and convicted of wire fraud, aggravated identity theft, and multiple conspiracy counts. Nicolescu argued that the district court erred by denying his motion for acquittal on the conspiracy to damage a protected computer charge. But he only challenged one of the three objects necessary to the charge. This left the court to “assume the evidence on the two unchallenged objects was sufficient,” which was fatal to his claim. It also rejected Miclaus’s claim that he should have received a judgment of acquittal on his aggravated identity theft charge. Sending the credit card numbers through Yahoo to see if they were valid for future use constituted “‘active employment’ of that stolen credit-card number.” As to the 18-level enhancement for causing losses of more than $3.5 million and less than $9.5 million, the court found that it was not “clearly erroneous” for the district court to rely on victim statements and ICCC complaints to reach a $3.5 million loss calculation. But it erred by applying the enhancement under § 2B1.1(b)(4) for being in the business of receiving and selling stolen property. This enhancement is limited to defendants who sell goods that others have stolen, as opposed to those who sell goods they have stolen themselves; thus, defendants’ sentences were improperly enhanced. The court noted that it had yet to decide whether “‘transfer[ring] . . . a means of identification’ as contemplated in § 1028A and Application Note 2 to § 2B1.6 is synonymous with ‘trafficking [an] unauthorized access device’ as used in § 2B1.1(b)(11)(B)(i).” The rule is that if “‘the defendant’s underlying conduct is limited to transfer, possession, or use of a means of identification of another, then the enhancement cannot apply; if the conduct is different than or in addition to such transfer, possession, or use, then the enhancement can apply.’” The court held that "Bayrob's marketing and sales of stolen credit cards constituted trafficking in unauthorized access devices.” It affirmed defendants’ convictions, vacated their sentences, and remanded for resentencing.

Full Text Opinion