UNITED STATES of America, Plaintiff-Appellee, v. Anca Morari SONI, Defendant-Appellant, 231 F. App'x 612

MEMORANDUM Petitioner Anca Morari Soni appeals the calculation of her sentence under § 2B1.1 of the United States Sentencing Guidelines. The district court’s construction of the Guidelines is reviewed de novo, and its factual findings are reviewed for clear error. United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir.2006); see also United States v. Scrivener, 189 F.3d 944, 949 (9th Cir.1999) (a district court’s determination of the amount of loss is reviewed for clear error). The district court’s application of the Guidelines to the facts of the case is reviewed for abuse of discretion.

Cantrell, 433 F.3d at 1279. If the district court erred in its construction of the Guidelines, its findings of fact, or its application of the Guidelines to the facts, and that error is not harmless, the case will be remanded to the district court for resentencing. Id. The district court clearly erred in applying the three sentencing enhancements challenged by Ms. Soni because it lacked sufficient evidence to support the application of those enhancements. Specifically, the district court lacked sufficient evidence to find that Ms. Soni intended $53,216.48 in total loss.

The district court also lacked sufficient evidence to find that Ms. Soni’s offense involved the use of sophisticated means that were more complex than an ordinary credit card fraud case. Finally, the district court lacked sufficient evidence to find that Ms. Soni either possessed or used any device-making equipment or produced or trafficked in any unauthorized access device or counterfeit access device. REVERSED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.