UNITED STATES of America, Plaintiff-Appellee, v. David Patrick GALLAGHER, Defendant-Appellant

OVERVIEW

Defendant David Patrick Gallagher was convicted of unauthorized use of an access device in violation of 18 U.S.C. § 1029 (a)(2) and bank fraud in violation of 18 U.S.C. § 1344 , and sentenced to thirty-seven months incarceration. Defendant appeals both his conviction and the sentence imposed. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

FACTS AND PROCEDURAL HISTORY

In May 1995, defendant was awaiting sentencing on a conviction for the unauthorized use of an access device in violation of 18 U.S.C. § 1029 (a)(2) in the case United States v. Gallagher, CR 95-72-1-MA (“Gallagher I”). Gallagher I involved the theft of an automated teller machine (“ATM”) card and personal identification number (“PIN”) that defendant and his accomplices used to steal over $346,000. Defendant and his accomplices used the stolen ATM card and PIN to make fraudulent deposits at various ATM locations and, thereafter, used the ATM card and PIN to withdraw the over $346,000 from 48 different ATM locations.

The facts leading to the present case (“Gallagher II ”) are as follows:

On May 16, 1995, Donna Gustafson played golf in Eugene, Oregon. She left her purse in her locked car…