NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 19 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-50301 Plaintiff-Appellee, D.C. No. 2:17-cr-00049-RGK-1 v. BRENT CHEW, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding Argued and Submitted December 10, 2019 Pasadena, California Before: WARDLAW and LEE, Circuit Judges, and KENNELLY,** District Judge. Brent Chew appeals his seventy-five-month sentence, which the district court imposed following Chew’s guilty plea to possession of fifteen or more unauthorized access devices in violation of 18 U.S.C § 1029(a)(3) and aggravated identity theft in violation of 18 U.S.C. § 1028(a)(1). We review a district court’s * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. interpretations of the Sentencing Guidelines de novo, its factual findings underlying a sentence for clear error, and its application of the Sentencing Guidelines to the facts for abuse of discretion. See United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm in part, vacate Chew’s sentence, and remand for resentencing with instructions. 1. The district court clearly erred in applying a twelve-level enhancement under U.S.S.G. § 2B1.1(b)(1)(G) because neither clear and convincing evidence nor a preponderance of the evidence established a total intended loss of $518,558.67. 1 See United States v. Onyesoh, 674 F.3d 1157, 1159–60 (9th Cir. 2012). The district court based its calculation of the intended loss on an incorrect finding that Chew possessed 1,036 access devices. Although Chew possessed a spreadsheet with information for 1,036 bank account, debit card, and credit card numbers, the government offered no evidence of the usability as to those accounts. See id. (“For an unauthorized access device whose usability is not readily apparent” to be the basis of a sentencing enhancement, the government 1 Chew argues that the district court should have applied a clear and convincing burden of proof because, he contends, the enhancement for the amount of intended loss has a disproportionate impact on his sentence. Because we find the evidence insufficient to support the district court’s determination regardless of the burden of proof, we need not address this argument. See Gonzalez-Gomez v. Immigration & Naturalization Serv., 450 F.2d 103, 105 (9th Cir. 1971). 2 must show “some proof” that the device is usable, or “capable of obtaining something of value.”). The government neither verified any of these account or card numbers nor provided evidence that any of Chew’s victims were included in the spreadsheet. See id. at 1160. Nor did Chew’s admissions regarding his possession of the information in the spreadsheet indicate that the information was usable.2 Because the district court erred in calculating the total intended loss, we ...
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