Case 1:18-cr-00024-DLF Document 29 Filed 10/09/18 Page 1 of 6

Jeremey I. Lessem
Lessem, Newstat & Tooson, LLP
3450 Cahuenga Blvd., Unit 102
Los Angeles CA, 90068
Telephone: (818) 582-3087
Facsimile: (818) 484-3087
Attorney for Richard Pinedo

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

V.

RICHARD PINEDO

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Case No.: 18-CR-24

DEFENDANT’S SUPPLEMENTAL SENTENCING MEMORANDUM REGARDING THE
APPLICATION OF USSG 2B1.1(b)(2)(A)(i)

I.

PROCEDURAL BACKGROUND

Richard Pinedo is before the Court as a result of pleading guilty to a violation of Title 18
USC Section 1028, commonly referred to as identity fraud. The plea was negotiated preindictment and included an agreement to cooperate with the Office of the Special Counsel in its
ongoing investigation. Sentencing is scheduled to take place on October 10, 2018. On October
4, 2018, the Honorable Judge Dabney L. Friedrich requested that the parties, through
supplemental briefings, address whether section 2B1.1(b)(2)(A)(i) of the U.S. Sentencing
Guidelines applies in the instant matter.
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Mr. Pinedo, by and through defense counsel, argues that this section does not apply and
cannot be used to further enhance his total offense level (which currently stands at 13). The basis
for this position is that the number of victims in this case is not known by either party, and any
effort to determine such a number would be speculative. Further, the Defendant has not agreed to
or acknowledged any specific number of victims in this case as part of the plea agreement or
Statement of the Case. Finally, the defense believes that any contention contained within the
Government’s Sentencing Memorandum pertaining to the number of victims was either stated in
error, or constitutes an assertion being made for the first time that lacks corroboration.

II.
A.

ARGUMENT

INTRODUCTION
Section 2B1.1(b)(2) of the U.S. Sentencing Guidelines provides for enhancements to the

total offense level if a certain number of victims were impacted by the offense. Subsection (A)(i)
of section 2B1.1(b)(2) provides that if the offense, “involved 10 or more victims . . . increase by
2 levels. . .”
The application notes to §2B1.1 define “victim” to include any person who sustained
“actual loss” in the form of “reasonably foreseeable pecuniary harm.” However, effective
November 1, 2009, an amendment to the application notes broadened the definition of victims in
cases of identity theft. When a “means of identification” is involved, a victim is defined as “any
individual whose means of identification was used unlawfully or without authority.” This
definition does not require any “actual” or pecuniary loss.

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B.

THE NUMBER OF VICTIMS CANNOT BE DETERMINED BY A
PREPONDERANCE OF THE EVIDENCE
If the government seeks an enhancement based on the number of victims, it must prove

the number by a preponderance of the evidence. United States v. Arnaout, 431 F.3d 994, 999 (7th
Cir. 2005); United States v. Showalter, 569 F.3d 1150, 1160 (9th Cir. 2009)(citing to United
States v. Burnett, 16 F.3d 358, 361 (9th Cir. 1994)). Moreover, “[t]he Guidelines do not, allow a
district court to ‘estimate’ the number of victims to enhance a sentence under § 2B1.1(b)(2).
[citation].” Showalter, 569 F.3d at 1160 (9th Cir. 2009).
In Showalter, the Ninth Circuit Court held that the District Court for the Central District
of California erred when it enhanced defendant Showalter’s sentence by four points for “50 or
more” victims. Id. at 1160. Showalter objected and conceded that he had stipulated to at least ten
victims, but never to 50 or more. Id. The government, at that point, was obliged to put on “some
evidence to support its contention that there were 50 or more victims.” Id.
The Ninth Circuit held that relying solely on the Presentence Report statement regarding
a phone call to the bankruptcy trustee indicating the number of victims in the case, and a list of
victims attached to the Presentence Report was insufficient. Id. at 1161. There was no indication
as to how the bankruptcy trustee arrived at the number of victims, and there was no explanation
as to the source or accuracy of the list of victims attached to the Presentence Report. Id.
In the instant matter, both the Presentence Report, paragraph 24, as well as the Statement
of the Case, paragraph 6, state, “[i]n total defendant Pinedo knowingly transferred, possessed,
and used without lawful authority, hundreds of bank account numbers...” (Presentence Report,
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October 2, 2018, page 7, paragraph 24)(emphasis added). In this case the word “hundreds”
modifies “bank account numbers”. There is no admission by the defendant, nor any other
indication whatsoever, that hundreds of people were affected.
We simply do not know how many different identities were used to open these hundreds
of accounts. Indeed, at the outset, Mr. Pinedo used his own identity to open dozens of accounts
in his own name. Later, he utilized a total of two sources he found online to provide additional
bank account numbers. These bank account numbers were completely anonymous. There were
no names or other identifying information connected to these accounts. Therefore, Mr. Pinedo
had no information as to whether the accounts he was purchasing belonged to one or more
specific individuals. In short, the number of bank accounts involved simply does not correlate to
the number of victims.
Moreover, when Mr. Pinedo proffered to the Special Counsel’s Office, he specifically
stated that he had no knowledge as to how the wholesalers of these bank account numbers
obtained the information he was purchasing. Mr. Pinedo stated he didn’t know to whom these
accounts belonged, or whether they belonged to more than one person. As a result, the language
in the Statement of the Case was chosen carefully, to coincide with the Defendant’s proffered
testimony, that “hundreds of bank account numbers” were involved, while intentionally
remaining silent on the issue of the number of victims.
In its October 4, 2018 Minute Order, this Court quoted the Government’s Sentencing
brief, specifically highlighting the sentence, “Mr. Pinedo sold hundreds of persons' bank account
numbers to anonymous customers on the internet.” (Government's Sentencing Memorandum at
3, Dkt. 24)(emphasis added). This quoted language in the Government’s brief is the first time the
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Government has brought up an allegation regarding the number of victims effected. This
language is uncorroborated, unproven, and goes beyond anything the defendant has agreed or
admitted to in any court record or document. Specifically, this language is not present in the plea
agreement, Presentence Report or the Statement of the Case. It is the Defendant’s belief that the
word “persons,” was likely included in the Government’s brief in error and is not an attempt to
allege facts outside the scope of the agreement between the parties. To the extent that the
Government may believe this case involves “hundreds of persons,” that allegation is
unsubstantiated by the known facts and uncorroborated by the defense.

III.

CONCLUSION

For the foregoing reasons, the enhancement described in 2B1.1(b)(2)(A)(i) of the U.S.
Sentencing Guidelines is not applicable in the instant matter and should not be used to increase
Mr. Pinedo’s offense level. No evidence has been, or can be presented, to prove by a
preponderance of the evidence that Mr. Pinedo’s actions effected ten or more victims.

Respectfully Submitted,

/S/ Jeremy Lessem
LESSEM, NEWSTAT & TOOSON, LLP
Attorney for Richard Pinedo

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