United States v. Wahid Siddiqi

MEMORANDUM **

Wahid Siddiqi has appealed the sentence imposed by the district court following his guilty plea to multiple charges of fraud in connection with means of identification in violation of 18 U.S.C. § 1028 (a)(7) & (c)(3)(A). Among other things, Siddiqi challenges the district court’s calculation of the loss attributable to his offenses under U.S.S.G. § 2B1.1. The commentary to that Guideline defines “actual loss” to include “the reasonably foreseeable pecuniary harm that resulted from the offense.” Id. app. note 3(A)(i). “Reasonably foreseeable pecuniary harm” means “pecuniary harm that the defendant knew or, under the circumstances, reasonably should have known, was a potential result of the offense.” Id. app. note 3(A)(iv).

An employee of a bank stole personal information about bank customers. Siddi-qi obtained some of that information and sold it to a government informant. The record reflects that no customer suffered any actual harm.

Once the bank discovered the theft, it notified all of the customers in writing, established a call center where they could call to obtain more information, and offered them two years of credit monitoring at the bank’s expense. The…

dissenting.

I don’t think the district court clearly erred in finding it was reasonably foreseeable that the bank would act to protect its customers as it did in the circumstances of this case: the scale of identity theft was huge, and it included, among other things, the social security number of millions of individuals. Nor do I agree with the suggestion that foreseeability is somehow capped by prior responses to unrelated thefts of a different order of magnitude, or by regulations that establish a floor for what a banking institution must do. Instead, I would apply United States v. Pham, 545 F.3d 712, 721 (9th Cir.2008), to the loss calculation here, and affirm.

FILED

NOT FOR PUBLICATION APR 01 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 09-50211

Plaintiff - Appellee, D.C. No. 2:08-CR-00974-GAF-

v. *

MEMORANDUM

WAHID SIDDIÏI,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Gary A. Feess, Judge, Presiding

Argued and Submitted March 1, 2010 Pasadena, California

Before: RYMER and WARDLAW, Circuit Judges, and KENNELLY,** District Judge.

Wahid Siddiqi has appealed the sentence imposed by the district court

following his guilty plea to multiple charges of fraud in connection with means of

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. identification in violation of 18 U.S.C. y 1028(a)(7) & (c)(3)(A). Among other

things, Siddiqi challenges the district court's…