United States v. Marites Barrogo

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-10228

Plaintiff-Appellee, D.C. No. 1:20-cr-

00012-FMTG-1

v.

MARITES M. BARROGO, OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the District of Guam

Frances Tydingco-Gatewood, Chief District Judge,

Presiding

Argued and Submitted October 13, 2022

Honolulu, Hawaii

Filed February 2, 2023

Before: Mary M. Schroeder, Johnnie B. Rawlinson, and

Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress

2 UNITED STATES V. BARROGO

SUMMARY *

Criminal Law

The panel affirmed a criminal judgment in a case in

which the defendant pleaded guilty to conspiracy to use,

transfer, acquire, alter or possess Supplemental Nutrition

Assistance Program benefits without authorization, in

violation of 7 U.S.C. § 2024 and 18 U.S.C. § 371.

Considering principally whether the district court

properly imposed a two-level sentencing enhancement under

U.S.S.G. § 2B1.1(b)(11)(A)(ii) for the defendant’s misuse of

an “authentication feature,” the panel held that a personal

identification number associated with a debit-type card is an

“authentication feature” under the Sentencing Guidelines

and the statutory provisions they reference.

The panel held that the defendant did not demonstrate

error in the district court’s order requiring her to pay

$18,752.30 in restitution, and rejected the defendant’s

argument that the government’s breach of the plea

agreement constituted plain error.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. BARROGO 3

COUNSEL

Kathryn A. Young (argued), Deputy Federal Public

Defender; Cuauhtemoc Ortega, Federal Public Defender,

Federal Public Defender’s Office, Los Angeles, California;

for Defendant-Appellant.

Benjamin K. Petersburg (argued), Assistant United States

Attorney; Shawn N. Anderson, United States Attorney,

Office of the United States Attorney, Hagatna, Guam; for

Plaintiff-Appellee.

OPINION

BRESS, Circuit Judge:

In this criminal case involving the unauthorized use of

federal food stamp benefits, we principally consider whether

the district court properly imposed a two-level sentencing

enhancement for the defendant’s misuse of an

“authentication feature.” U.S.S.G. § 2B1.1(b)(11)(A)(ii).

We hold that a personal identification number (PIN)

associated with a debit-type card is an “authentication

feature” under the Sentencing Guidelines and the statutory

provisions they reference. We also reject the defendant’s

other assignments of error and affirm her conviction and

sentence.

I

The Supplemental Nutrition Assistance Program

(SNAP), formerly known as the Food Stamp Program, is a

federal program that “permit[s] low-income households to

obtain a more nutritious diet through normal channels of

4 UNITED STATES V. BARROGO

trade by increasing food purchasing power for all eligible

households who apply for participation.” 7 U.S.C. § 2011;

see also Hall v. U.S. Dep’t of Agric., 984 F.3d 825, 831 (9th

Cir. 2020) (describing the SNAP program). States and

territories are provided funding to administer SNAP

benefits. 7 U.S.C. § 2013(a).

In Guam, SNAP is administered through the Guam

Department of Public Health and Social Services (DPHSS).

DPHSS provides SNAP recipients with an Electronic

Benefits Transfer (EBT) card, which is like a debit card that

can be used at authorized stores to buy certain food products.

Each EBT card has a card number imprinted on it. And each

cardholder has a PIN that, like a debit card PIN, must be

entered at the point of sale to complete the transaction.

Marites Barrogo, who was not a SNAP beneficiary, was

the owner and operator of Laguna Best Restaurant and

Catering in Harmon, Guam. From 2015 to 2020, Barrogo

bought SNAP benefits from various individuals at a

substantial discount, and then used those benefits to buy bulk

food items for her restaurant.

Barrogo used two different methods to traffic SNAP

benefits. From 2015 to 2018, Barrogo regularly purchased

SNAP benefits from co-defendant Stephanie Muna.

Approximately once a month, Muna would give Barrogo her

EBT card and PIN and Barrogo would purchase bulk food

items for Laguna Best. Barrogo would typically use $600

worth of SNAP benefits each month, for which she would

pay Muna $400 in cash. During this period, Muna recruited

at least four other SNAP beneficiaries to sell their benefits

to Barrogo.

In June 2018, the DPHHS Investigation and Recovery

Office began investigating Barrogo. When investigators

UNITED STATES V. BARROGO 5

visited her restaurant and questioned her, Barrogo admitted

that she had been paying Muna cash in exchange for SNAP

benefits. Barrogo also provided investigators with a signed

statement acknowledging her transactions with SNAP

beneficiaries. Following this interview, DPHSS

permanently disqualified Muna from receiving SNAP

benefits. Muna’s trafficked SNAP benefits ultimately

totaled $15,625.

Notwithstanding the DPHSS investigation, Barrogo

continued to traffic SNAP benefits with at least three other

SNAP beneficiaries, except now using a more surreptitious

method. Instead of using the EBT cards herself, she gave

shopping lists to SNAP beneficiaries who then purchased

food for the restaurant in exchange for cash.

In December 2019, the DPHSS Investigation and

Recovery Office received a call from an informant who

reported that two men were delivering food items to Laguna

Best using their vehicle. The informant provided photos of

the men, one of whom was later identified as A.M. Using

video footage from stores, the investigators concluded that

A.M. and his common law spouse, J.D., had been using their

SNAP benefits to make two to three purchases per month of

the same bulk food items, including large sacks of rice,

boxes of frozen meats, vegetables, and a whole pig. These

items were clearly not intended for personal household

consumption. Between the video footage and the

informant’s photos of A.M. delivering bulk food items to

Laguna Best, investigators were able to link these purchases

to Barrogo.

Based on EBT card receipts reflecting suspected

trafficked items, DPHSS concluded that A.M. and J.D. had

provided a total of $21,317.67 in SNAP benefits to Barrogo

6 UNITED STATES V. BARROGO

between 2018 and 2020. Following another anonymous tip,

DPHSS identified a fourth individual, A.T., with whom

Barrogo had trafficked another $561.53 in SNAP benefits.

The informant reported that on November 4, 2019, A.T.

delivered ten sacks of rice and five boxes of spareribs to

Laguna Best.

A grand jury indicted Barrogo on two counts of the

unauthorized use of SNAP benefits, in violation of 7 U.S.C.

§ 2024, and one count of conspiracy to use, transfer, acquire,

alter or possess SNAP benefits without authorization, in

violation of 7 U.S.C. § 2024 and 18 U.S.C. § 371. Barrogo

pled guilty to the conspiracy count. As part of her plea

agreement, Barrogo stipulated to a two-level authentication

feature enhancement under U.S.S.G. § 2B1.1(b)(11)(A)(ii),

which was based on her use of EBT cards and PINs to

purchase food. The other two charges in the indictment were

dismissed as part of the plea.

With a two-level increase for use of an authentication

feature, the advisory Sentencing Guidelines range was 10–

16 months in prison. The district court sentenced Barrogo to

ten months’ imprisonment and three years of supervised

release. The court also ordered Barrogo to pay $18,752.30

in restitution. Barrogo timely appealed.

II

We first address whether the district court properly

applied the two-level authentication feature enhancement

based on Barrogo’s use of the SNAP beneficiaries’ EBT

cards and PINs. Generally, we review the district court’s

interpretation of the Sentencing Guidelines de novo. United

States v. Parlor, 2 F.4th 807, 811 (9th Cir. 2021). Because

Barrogo failed to object below, however, we review here for

plain error. United States v. Wang, 944 F.3d 1081, 1085 (9th

UNITED STATES V. BARROGO 7

Cir. 2019). Regardless, the outcome would be the same

under any standard of review because the district court

correctly applied the enhancement. 1

U.S.S.G. § 2B1.1(b)(11)(A)(ii) provides for a two-level

increase if the offense involved “the possession or use of

any . . . authentication feature.” Three layered statutory

definitions are relevant to the proper interpretation of this

enhancement. First, the Sentencing Guidelines incorporate

the definition of “authentication feature” found in 18 U.S.C.

§ 1028(d)(1). See U.S.S.G. § 2B1.1 cmt. 10(A). Section

1028(d)(1) defines an “authentication feature” as

any hologram, watermark, certification,

symbol, code, image, sequence of numbers or

letters, or other feature that either

individually or in combination with another

feature is used by the issuing authority on an

identification document, document-making

implement, or means of identification to

determine if the document is counterfeit,

altered, or otherwise falsified[.]

18 U.S.C. § 1028(d)(1) (emphasis added).

Second, the statute defines “means of identification” as

“any name or number that may be used, alone or in

conjunction with any other information, to identify a specific

individual.” Id. § 1028(d)(7). This includes a long list of

standard “means of identification” such as social security

1

Although Barrogo has now been released from prison, her counsel

clarified at oral argument that the authentication feature issue is not moot

because if it were resolved in Barrogo’s favor, that could provide a basis

for the district court to revisit Barrogo’s supervised release.

8 UNITED STATES V. BARROGO

and drivers’ license numbers. Id. § 1028(d)(7)(A)–(C). But

“means of identification” also includes any “access device

(as defined in section 1029(e)).” Id. § 1028(d)(7)(D)

(emphasis added).

Lastly, an “access device” is then defined as

any card, plate, code, account number,

electronic serial number, mobile

identification number, personal identification

number, or other telecommunications

service, equipment, or instrument identifier,

or other means of account access that can be

used, alone or in conjunction with another

access device, to obtain money, goods,

services, or any other thing of value, or that

can be used to initiate a transfer of funds

(other than a transfer originated solely by

paper instrument)[.]

Id. § 1029(e)(1) (emphasis added). Taken together, the

statutory scheme thus defines “authentication feature” to

mean certain qualifying features (such as letters, numbers, or

symbols) used on a “means of identification,” and an “access

device” is such a “means of identification.”

We interpret both statutes and the Sentencing Guidelines

using traditional tools of statutory construction. United

States v. Cox, 963 F.3d 915, 920 (9th Cir. 2020); United

States v. Valenzuela, 495 F.3d 1127, 1133 (9th Cir. 2007).

Although the interrelated provisions are here somewhat

complex, lacing them together shows that the district court

properly imposed the enhancement in Barrogo’s case.

UNITED STATES V. BARROGO 9

There is no question that a PIN satisfies the first part of

the “authentication feature” definition: it is a “code” or

“sequence of numbers.” 18 U.S.C. § 1028(d)(1). Nor is it

contested that the Guam DPHSS is an “issuing authority.”

See id. § 1028(d)(6)(A) (defining “issuing authority” as “any

governmental entity or agency that is authorized to issue

identification documents, means of identification, or

authentication features”); United States v. Kirilyuk, 29 F.4th

1128, 1139 (9th Cir. 2022). Lastly, an EBT card is an

“access device”—and therefore a “means of

identification”—because it is a “card . . . that can be

used . . . to obtain money, goods, services, or any other thing

of value.” 18 U.S.C. § 1029(e)(1). An EBT card is also

associated with an account number, and that too is an “access

device” as the statute defines it. Id.

We can now put the various pieces together. A PIN

number (a “code” or “sequence of numbers”) is an

“authentication feature” because it is “used by the issuing

authority [(DPHHS)] on . . . [a] means of identification”—

the EBT card or account number, which are “access

devices”— “to determine if the document is counterfeit,

altered, or otherwise falsified.” See 18 U.S.C. § 1028(d)(1).

Put another way, a “sequence of numbers” that is “used by

the issuing authority on . . . [a] means of identification”—

such as a “card . . . that can be used . . . to obtain . . . any

thing of value”—qualifies as an “authentication feature.” Id.

§§ 1028(d)(1), 1029(e)(1).

A possible source of ambiguity in this case is the

requirement that the authentication feature—here, the PIN—

be “used by the issuing authority on . . . [a] means of

identification.” Id. § 1028(d)(1) (emphasis added). Barrogo

argues that a PIN does not count as an authentication feature

because its numbers are not physically “on” the EBT card.

10 UNITED STATES V. BARROGO

While this argument has some superficial appeal, it is not

consistent with either the statutory text considered as a

whole or our precedent.

A reading requiring the authentication feature to be

physically “on . . . [a] means of identification” would be

inconsistent with the plain language of § 1028(d)(7), which

defines “means of identification.” As we have noted, the

statute defines “authentication feature” to include a sequence

of numbers used on a “means of identification,” the latter of

which includes “access devices.” Id. § 1028(d)(7)(D). And

“access devices” is defined to include both physical

elements, such as a “card” or “plate,” and non-physical

elements, such as a “code, account number, electronic serial

number, mobile identification number, [or] personal

identification number.” Id. § 1029(e)(1).

The statute therefore contemplates someone using a non-

physical “authentication feature,” like a PIN, “on” a non-

physical “means of identification,” like an account number.

Id. § 1028(d)(1). This reading is consistent with dictionary

definitions of the word “on,” which indicate that it can

describe non-physical relations between subjects. See, e.g.,

10 Oxford English Dictionary 793 (2nd ed. 1989) (defining

“on” as “[o]f local position outside of, but close to or near,

any surface. Primarily of things physical, but also of non-

physical things treated as having extension.”) (emphasis

added); American Heritage Dictionary 1263 (3rd ed. 1994)

(noting that “on” can be “[u]sed to indicate [a] figurative or

abstract position”). This definition of “on” is also consistent

with common parlance, in which we regularly speak (for

example) of the number or name “on” an account.

The statutory scheme therefore contemplates that an

“authentication feature” need not be a physical thing affixed

UNITED STATES V. BARROGO 11

to or imprinted on another physical thing because a “means

of identification” need not itself be a physical thing. A non-

physical association between the “authentication feature”

and the “means of identification” can therefore be sufficient.

The rest of the definition of “means of identification”

supports this, as well. That definition includes types of

personal identifying information—including “biometric

data,” such as voice or retina information, and “unique

electronic identification number[s], address[es], or routing

code[s]”—that are not necessarily tangible in nature, but

which are nonetheless used “to identify a specific

individual.” 18 U.S.C. § 1028(d)(7)(B)–(C). Barrogo’s

reading of “on” would render various parts of the statutory

definition non-operative.

The fact that certain authentication features, such as

“hologram[s]” or “watermark[s],” must by their nature have

some physical relationship with the means of identification

does not change our analysis. 18 U.S.C. § 1028(d)(1). We

do not “construe a statute by reading related clauses in

isolation or taking parts of a whole statute out of their

context.” Westwood Apex v. Contreras, 644 F.3d 799, 804

(9th Cir. 2011). Because the statute here includes both

physical and non-physical “means of identification,” we

think that the far more reasonable interpretation of

“used . . . on” in § 1028(d)(1) includes the use of non-

physical authentication features that are naturally associated

with a physical or non-physical “means of identification.”

Here, that is a PIN “on” an account or associated card.

Our interpretation also finds considerable support in our

leading precedent in this area, United States v. Sardariani,

754 F.3d 1118 (9th Cir. 2014). In that case, the defendant

argued that the authentication feature enhancement did not

apply to his use of forged notary seals and signatures on

12 UNITED STATES V. BARROGO

deeds because the deeds themselves were not “identification

documents.” We rejected this argument, noting that “the

statute does not require that an authentication feature appear

on an identification document” but also encompasses

features used “on . . . [a] means of identification.” Id. at

1121 (quoting 18 U.S.C. § 1028(d)(1)). Since a signature is

a “means of identification,” we concluded that “the forged

notary seals were used on a means of identification,” without

focusing on the exact physical relationship between the two.

Id. at 1121–22 (emphasis added); see also id. at 1122 (“The

notary seals were, therefore, authentication features applied

to means of identification [(the signatures)].”) (emphasis

added). Sardariani is hard to square with Barrogo’s more

limited reading of “on . . . [a] means of identification” as

meaning only a physical inscription on a physical document

or device.

It is true, however, that § 1028(d)(1) does use the phrase

“the document” in addition to “means of identification,”

stating that “authentication feature” means a qualifying

feature (here a code or sequence of numbers) that “is used

by the issuing authority on an identification document,

document-making implement, or means of identification to

determine if the document is counterfeit, altered, or

otherwise falsified.” The word “document” is not defined in

the statute, but it is not limited to something like a piece of

paper. Instead, “document” traditionally means

“[s]omething tangible on which words, symbols, or marks

are recorded.” Document, Black’s Law Dictionary (11th ed.

2019). That would of course include the prototypical

identification “document”: the government-issued ID. See

18 U.S.C. § 1028(d)(3) (defining “identification

document”). We have no occasion to decide whether “the

document” in § 1028(d)(1) should be limited to tangible

UNITED STATES V. BARROGO 13

items (in context, the phrase “the document” appears to refer

also to “means of identification,” which, as have noted, are

not necessarily tangible). But for present purposes, it is

sufficient to conclude that the EBT card is a tangible item on

which information is recorded, and so clearly qualifies as a

“document.”

Barrogo makes one final argument. Pointing out that the

purpose of an “authentication feature” is “to determine if the

document is counterfeit, altered, or otherwise falsified,” id.

§ 1028(d)(1), Barrogo argues that the authentication feature

enhancement should not apply to her because the EBT cards

in this case were genuine. In her view, the purpose of a PIN

is not to establish that the card was authentic, but to prevent

unauthorized persons from accessing SNAP benefits.

We find this argument unpersuasive. Although Barrogo

is of course correct that one purpose of a PIN is to prevent

use of a card by an unauthorized person, a PIN also serves

as a check against the counterfeiting, alteration, or

falsification of the document itself. A wrongdoer’s inability

to provide a PIN is, in other words, a way of “determin[ing]

if the document is counterfeit, altered, or otherwise

falsified.” Id. And regardless, the phrase “otherwise

falsified” broadens the reach of the provision beyond

counterfeiting or formally altering a document. Barrogo

presented a “falsified” EBT card and PIN when she falsely

represented herself as a SNAP beneficiary. Someone who

falsely signs a check purporting to represent the account

holder falsifies the check. Similarly, someone who falsely

uses a PIN and EBT card to access SNAP benefits falsifies

the “means of identification” and, here, the underlying

request for government-subsidized food. Barrogo thus falls

within both the text and objective of the authentication

feature enhancement.

14 UNITED STATES V. BARROGO

In sum, the “authentication feature” here is the PIN (the

“sequence of numbers”) used by DPHSS (the “issuing

authority”) on the EBT card or account number (“access

devices” that are a “means of identification”) to determine if

that EBT card (“the document”) is counterfeit, altered, or

otherwise falsified. That is a sensible reading of the statute,

and one that gives the text its full effect. The district court

therefore correctly imposed the two-level authentication

feature enhancement.

III

We next consider whether the record adequately

supports the district court’s $18,752.30 restitution order. We

review the legality of a restitution order de novo and related

factual findings for clear error. United States v. Kaplan, 839

F.3d 795, 800 (9th Cir. 2016). We find no error in the

restitution order.

The government requested $18,752.30 in restitution for

the DPHSS. It calculated this amount based on $15,625 in

trafficked benefits from Stephanie Muna, $21,317.67 from

A.M. and J.D., and $561.93 from A.T. The total trafficked

benefits amounted to $37,504.60. The government then

sought restitution for half that amount, representing what it

regarded as Barrogo’s fair share of the liability.

Barrogo conceded that she was responsible for the SNAP

benefits trafficked with Muna and A.T., totaling $16,186.

But she argued that the government did not sufficiently

prove that she was responsible for the $21,317.67 in benefits

trafficked with A.M. and J.D. Though she admits to having

made improper transactions with these individuals, she

claimed that the total amount of trafficked benefits was

lower than what the government claimed.

UNITED STATES V. BARROGO 15

In ordering restitution, a district court must comply with

the procedures in 18 U.S.C. § 3664, which require the court

to resolve “[a]ny dispute as to the proper amount . . . of

restitution . . . by the preponderance of the evidence.” Id.

§ 3664(e). The government bears the “burden of

demonstrating the amount of the loss sustained by a victim.”

Id. We have previously held that Ҥ 3664(e) requires both

that a district court set forth its reasons in resolving a dispute

over restitution and that a restitution award, if one issues, be

adequately supported by evidence in the record.” United

States v. Tsosie, 639 F.3d 1213, 1222 (9th Cir. 2011). At the

same time, “district courts possess ‘a degree of flexibility in

accounting for a victim’s complete losses.’” Id. at 1223

(quoting United States v. Waknine, 543 F.3d 546, 557 (9th

Cir. 2008)).

The district court satisfied its responsibilities here. The

court held a hearing devoted to restitution, at which it played

an active role. At the hearing, the district court heard

testimony from Ruben Carandang, an investigator with the

DPHSS Division of Public Welfare. Carandang testified that

SNAP purchases are maintained as records, and that his

office calculated the amount of SNAP benefits trafficked

with A.M. and J.D. based on receipts from their EBT

purchases from 2018 to 2020. Using these receipts,

investigators looked for large “repeated[]” bulk purchases of

items that Barrogo was known to use in her restaurant, such

as sacks of rice, frozen meats, vegetables, lumpia wrappers,

and certain spices. Carandang further explained that A.M.

and J.D. were purchasing the same bulk items “2 to 3 times

in a month,” which is “very unusual” and not consistent with

“consumption [for] the household.”

In addition to the receipts, Carandang testified that his

office had a photo of A.M. and J.D. delivering carrots to

16 UNITED STATES V. BARROGO

Barrogo’s restaurant and video surveillance footage of the

two purchasing bulk items. Carandang’s office had also

found a photo of a whole pig on Barrogo’s Facebook page

that coincided in time with A.M. or J.D. using SNAP

benefits to purchase a whole pig. Despite Barrogo’s

objections, the district court determined that Carandang was

“an incredibly solid” and “very credible” witness, and that

the government had proven its requested restitution amount

by a preponderance of the evidence.

Barrogo has not demonstrated error in the district court’s

determination, and her various arguments are either

speculative, overstated, or effectively assume that the

government and the district court were required to meet

heightened standards of proof that our law does not impose

in this context. Here, a “very credible” investigator

explained his method of calculation, which was based on

receipts and other evidence, in the context of a case in which

the defendant admitted her wrongdoing. This was sufficient.

And Barrogo’s argument that the restitution order was

improper because it was not proven to a jury beyond a

reasonable doubt is foreclosed by our precedent. See United

States v. Green, 722 F.3d 1146, 1149 (9th Cir. 2013).

Accordingly, we uphold the district court’s order requiring

Barrogo to pay $18,752.30 in restitution. 2

2

We also reject Barrogo’s argument that the government’s breach of the

plea agreement constituted plain error, requiring resentencing. Although

the government concedes that it erroneously recommended two years of

supervised release when it had agreed to recommend just one, Barrogo

did not object below and there is not “a reasonable probability that the

error affected the outcome” of the proceedings. United States v. Marcus,

560 U.S. 258, 262 (2010). The district court did not accept the

government’s recommendation of two years’ supervised release, and

UNITED STATES V. BARROGO 17

* * *

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.

instead went with three years. The district court had elsewhere

commented on the severity of Barrogo’s conduct and the fact that she

persisted in it even after DPHSS began investigating her. We conclude

that “[t]he record establishes that the district court conducted its own

independent evaluation of the propriety of the stipulated sentence.”

United States v. Gonzalez-Aguilar, 718 F.3d 1185, 1187 (9th Cir. 2013).

There is no non-speculative basis to conclude that the government’s

breach of the plea agreement affected the district court’s sentencing

decision. See id. at 1189 (“Mere ‘possibility’ is insufficient to establish

prejudice.”).