U.S. Court of Appeals for the Second Circuit, 2006

United States v. Arce-Aldana

United States v. Arce-Aldana
U.S. Court of Appeals for the Second Circuit · Decided May 16, 2006 · Feinberg, Hall, Sotomayor
180 F. App'x 293

United States v. Arce-Aldana

Opinion of the Court

SUMMARY ORDER

Defendant-appellant Julio Armando Arce-Aldana appeals from a judgment entered on September 22, 2005, after a guilty plea, sentencing him principally to fifteen months’ imprisonment, two years of supervised release, and a special assessment of $100 for knowingly and with the intent to defraud possessing fifteen or more counterfeit access devices in violation of 18 U.S.C. § 1029(a)(3). We assume the parties’ familiarity with the facts of this case, its relevant procedural history, and the issues on appeal.

Arce-Aldana contends that his sentence was unreasonable because the district court incorrectly applied a two-level enhancement for “trafficking” in unauthorized access devices pursuant to U.S.S.G. § 2Bl.l(b)(10)(B). Although Guideline § 2B1.1 does not define the word “traffic,” the statute under which Arce-Aldana was convicted states that “the term ‘traffic’ means transfer, or otherwise dispose of, to another, or obtain control of with intent to transfer or dispose of.” 18 U.S.C. § 1029(e)(5). On appeal, Arce-Aldana asserts that the district court should not have looked to the statute of conviction when defining “traffic,” but to the ordinary meaning of the word; he contends that “traffic” is ordinarily understood to mean “engage in commercial activity” or “trade or deal in.” We need not reach the question of which definition applies because Arce-Aldana’s conduct constitutes “trafficking” under both definitions. When he received $600 in exchange for delivering counterfeit credit cards to his accomplice, Arce-Aldana was clearly engaged in commercial activity. The fact that he intended to profit not only from the delivery of the *294counterfeit credit cards to his accomplice but also from his accomplice’s fraudulent use of the cards in no way alters the fact that Arce-Aldana was engaged in commercial activity when he brought the cards into this country with the intent to deliver them to his accomplice for a $600 fee.1

For the reasons stated above, the judgment of the district court is AFFIRMED.

. We need not reach the government’s argument that Arce-Aldana's claims are reviewable under a plain error standard or that they are waived, because we find his claims to be without merit.

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