UNITED STATES of America, Plaintiff-Appellee, v. Bernadette H. SABLAN, Defendant-Appellant

Bernadette H. Sabían appeals her conviction for computer fraud under 18 U.S.C. § 1030 (a)(5) 1988, amended by Pub.L. No. 103-322, § 290001 (b), 108 Stat.2097-2099 (Sept. 13,1994), following a conditional guilty plea. Sabían argues that the district court wrongly interpreted the elements of the crime and, alternatively, that the statute is unconstitutional. Sabían also challenges the district court’s calculation of the loss attributable to her conduct, the court’s decision not to depart downward, and the restitution order. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3576 . We affirm Sablan’s conviction and her sentence. However, we reverse and remand for a recalculation of the restitution award.

FACTS

In the early hours of August 15, 1992, Sabían, a former employee of the Bank of Hawaii’s Agana, Guam branch, left a bar where she had been drinking with a friend. Sabían had recently been fired from the bank for circumventing security procedures in retrieving files. That morning, Sabían left the bar and entered the closed bank through an unlocked loading dock door. She went to her former work site (using a key she had kept) and used an old password to log into the…