United States v. Neftali Esau Billy Oquendo

Case: 14-14462 Date Filed: 01/19/2016 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 14-14462 Non-Argument Calendar ________________________

D.C. Docket No. 6:14-cr-00114-GKS-GJK-2

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

NEFTALI ESAU BILLY OQUENDO,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(January 19, 2016)

Before WILLIAM PRYOR, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:  Case: 14-14462 Date Filed: 01/19/2016 Page: 2 of 3

Neftali Esau “Billy” Oquendo appeals his sentence of 90 months of

imprisonment, which the district court imposed after he entered a plea of guilty to

conspiring to commit access device fraud. 18 U.S.C. § 1029(b)(2). Oquendo

challenges the procedural and substantive reasonableness of his sentence. We

affirm.

We review the reasonableness of a sentence under a deferential standard for

abuse of discretion. United States v. Azmat, 805 F.3d 1018, 1047 (11th Cir. 2010).

We ensure that the district court committed no significant procedural error, such as

failing to calculate the guideline range or to explain the chosen sentence, and then

we examine whether the sentence is substantively reasonable in the light of the

totality of the circumstances. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,

597 (2007). The abuse of discretion standard “allows a range of choice for the

district court, so long as that choice does not constitute a clear error of judgment.”

United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quoting

United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc)). We will

not disturb the sentence unless “we are left with the definite and firm conviction

that the district court committed a clear error of judgment in weighing the

§ 3553(a) factors by arriving at a sentence that lies outside the range of reasonable

sentences dictated by the facts of the case.” Id. at 1190 (internal quotation marks

and citation omitted).

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Oquendo’s sentence is procedurally and substantively reasonable. Oquendo

downloaded to a laptop the credit card data of retail customers that a coconspirator

copied onto a skimming device; stored blank credit cards and access device

equipment at his home; and was compensated with counterfeit credit cards encoded

with stolen identity information. Oquendo argues that the district court failed to

explain its chosen sentence, but the district court explained at sentencing and in its

statement of reasons that it imposed the maximum statutory penalty to punish

Oquendo’s “onerous and terrible crime,” which involved 2,100 victims and losses

exceeding $1.2 million, and to deter future “access fraud and skimming.” See 18

U.S.C. § 3553(a). The district court reasonably determined that a variance three

months above the high end of Oquendo’s guideline range of 70 to 87 months was

required to impose adequate punishment, to promote respect for the law, and to

protect the public. See United States v. Rodriguez, 628 F.3d 1258, 1264–65 (11th

Cir. 2010). The district court did not abuse its discretion by sentencing Oquendo to

90 months of imprisonment.

We AFFIRM Oquendo’s sentence.

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