USA v. Andrew Smith

Filing

Opinion issued by court as to Appellant Andrew Smith in 15-13066, Appellant Julius C. Appling in 15-14044, Appellant Taj J. Tillison in 15-15047. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions. [15-13066, 15-14044, 15-15047]

Case: 15-13066

Date Filed: 09/26/2016

Page: 1 of 5

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13066
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cr-00405-TWT-JSA-5

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDREW SMITH,
a.k.a. Dru,
Defendant - Appellant.
________________________
No. 15-14044
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cr-00405-TWT-JSA-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus

Case: 15-13066

Date Filed: 09/26/2016

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JULIUS C. APPLING,
Defendant - Appellant.
________________________
No. 15-15047
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cr-00405-TWT-JSA-2

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TAJ J. TILLISON,
Defendant - Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(September 26, 2016)
Before HULL, MARCUS, and EDMONDSON, Circuit Judges.
PER CURIAM:
Andrew Smith, Julius Appling, and Taj Tillison appeal their sentences of 33
months, 56 months, and 51 months, respectively, imposed after pleading guilty to
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Case: 15-13066

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one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344,
1349. Smith, Appling, and Tillison argue that the district court erred by enhancing
their sentences when it incorrectly counted, as victims, persons who voluntarily
provided access to their debit card information, which Smith, Appling, and Tillison
then used to cash fraudulent checks.
We review a district court’s application and interpretation of the Guidelines
de novo and its factual findings for clear error. United States v. Lee, 427 F.3d 881,
892 (11th Cir. 2005).
Pursuant to § 2B1.1(b)(2) of the Sentencing Guidelines, a two-level
enhancement is applied if the offense involved 10 or more victims; a four-level
enhancement is applied if the offense involved more than 50 but fewer than 250
victims. U.S.S.G. § 2B1.1(b)(2)(A), (B). Thus, the appropriate enhancement
calculation depends on the number of “victims” involved. A “victim” means a
person who sustained an actual loss or a bodily injury as a result of the offense. Id.
comment. (n.1). In cases involving “means of identification,” Application Note
4(E) provides that a “victim” also includes “any individual whose means of
identification was used unlawfully or without authority.” Id., comment. (n. 4(E));
U.S.S.G. App. C. vol. III, Amend. 726.
“Means of identification” has the meaning given by 18 U.S.C. § 1028(d)(7),
“except that such means of identification shall be of an actual (i.e., not fictitious)
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individual, other than the defendant or a person for whose conduct the defendant is
accountable under §1B1.3 (Relevant Conduct).” U.S.S.G. § 2B1.1, comment. (n.
1). The “means of identification” include “any name or number that may be used,
alone or in conjunction with any other information, to identify a specific
individual, including any . . . unique electronic identification number, address, or
routing code.” 18 U.S.C. § 1028(d)(7)(C).
We apply traditional statutory construction rules to interpret the language of
Sentencing Guideline enhancements. United States v. Hall, 704 F.3d 1317, 1321
(11th Cir. 2013). We will first give the language in the guideline its plain and
ordinary meaning. We will consider, not only the bare meaning of the word, but
also its placement and purpose in the guidelines; “[w]e will not rewrite the
guidelines by reading definitions more broadly than their plain language indicates.”
Id.
We have addressed similar language in the aggravated identity theft statute,
which provides that anyone who “knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another person shall . . . be
sentenced.” See 18 U.S.C. § 1028A(a)(1). We determined that to establish the
“without lawful authority” element of aggravated identity theft, the government
was not required to show that the defendant obtained another person’s
identification documents by stealing. United States v. Hurtado, 508 F.3d 603, 607
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(11th Cir. 2007), abrogated by on other grounds by Flores-Figueroa v. United
States, 556 U.S. 646, 129 S. Ct. 1886, 173 L. Ed. 2d 853 (2009). We noted that the
plain language of this phrase indicated “Congress’s intent to prohibit more than
just the defendant’s transfer, possession, or use of identification that was obtained
by theft by that defendant.” Id. We explained that “our reading of the plain
language to prohibit the possession or use of another person’s identification that
was obtained by methods other than stealing does not lead to absurd results”
because “[i]t is not absurd to conclude that Congress also intended to deter the
purchase of identification documents by money.” Id. at 608 n. 6.
The district court did not err by enhancing Smith’s, Appling’s, and Tillison’s
sentences because it correctly counted the number of victims. The district court
correctly counted, as victims, persons who voluntarily provided access to their
debit card information, which Smith, Appling, and Tillison then used to cash
fraudulent checks: Smith, Appling, and Tillison used the debit card information in
an unlawful way, regardless of whether Smith, Appling, and Tillison had authority
to have the debit card information.
AFFIRMED.

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