The opinion of the court was delivered by: JAMES F. HOLDERMAN
Defendant Castellano Dear disagrees with the Government and the Probation Office as to the amount of financial loss attributable to him for sentencing purposes. For the reasons set forth below, the court finds that defendant Dear must be held accountable for losses totalling $ 171,139.39 resulting from his involvement in the credit card fraud conspiracy to which he has pleaded guilty.
The Government charged defendant Castellano Dear with violations of 18 U.S.C. Section 371 (conspiracy to commit an offense against the United States) and 18 U.S.C. Section 1029(b)(1) (attempt to commit credit card fraud). (Plea Agreement, P1.) Defendant Dear pleaded guilty to Count One of the indictment brought against him -- the conspiracy charge. (Id., P5.)
In January 1990 co-defendant Victor Woods during more than one conversation told Dear that he, Woods,had a lot of blank credit cards and that he, Woods, was trying to set up a deal to sell the cards. In early to mid-March 1990 Woods told Dear that he, Woods, had located a machine at a suburban YMCA that could be used to emboss the blank credit cards. (Hearing, Dec. 13, 1991.)
From March 25, 1990 to June of 1990, Dear knowingly participated in a conspiracy with co-defendants Woods, William Russell, Bryant Theodile, and Anne Hemesath to commit certain offenses against the United States. Those offenses included possession, use, and distribution of stolen credit cards. (Id.)
In furtherance of this conspiracy, on March 25, 1990, Dear accompanied Woods and Theodile to the YMCA in Des Plaines, Illinois. Woods instructed Dear to break into the YMCA and steal a credit card embossing machine. Using a hammer wrapped in a towel, Dear broke into the YMCA through a window and stole an Elliott credit card embossing machine. (Id.)
At the time that Dear stole the credit card embossing machine, he knew that Woods had a supply of blank credit cards and intended to obtain valid credit card account numbers and use the machine to produce counterfeit credit cards. (Id.) In fact, before stealing the embossing machine, Dear knew that Woods had obtained "a carton of blank credit cards." (Defendant's Version of the Offense at 1.)
Ultimately, Woods obtained valid credit card numbers and began to produce counterfeit credit cards. (Plea Agreement, P5.) Woods gave Dear five of the phony credit cards. (Defendant's Version of the Offense at 3.) On three occasions, Dear used or attempted to use the counterfeit credit cards to make purchases. Those purchases totalled at least $ 1,834.36. (Plea Agreement, P5.)
Dear understood that the counterfeit credit cards would be used for "joy-shopping." (Defendant's Version of the Offense at 2; Hearing, Dec. 13, 1991.) The amount of unauthorized charges made with the counterfeit credit cards produced by Dear's co-conspirators ultimately totalled $ 171,139.39. (Plea Agreement, P5.)
Defendant Dear's objections to the application of the guidelines boil down to two issues: (1) whether the extent of the unauthorized charges were reasonably foreseeable; and (2) whether Dear withdrew from the conspiracy. The court will address each issue.
A. The Reasonable Foreseeability Issue
Section 2F1.1 of the Sentencing Guidelines, which governs offenses involving fraud and deceit, controls calculation of the offense level for the credit card fraud conspiracy to which defendant Dear has pleaded guilty. Under Section 2F1.1(a), the base offense level for such a crime is Level 6. Under Section 2F1.1(b), however, the base offense level must be increased depending upon the amount lost by the victims of the specific fraud. ...