United States v. A.M., 927 F.3d 718

In 2014 A.M. used ATM skimmers and PIN-pad overlays to capture customers' account numbers and PINs, then made counterfeit debit cards to withdraw cash and purchase goods.
He pleaded guilty to one count of bank fraud (underlying felony) and one count of aggravated identity theft under 18 U.S.C. § 1028A.
The district court applied a two-level Sentencing Guidelines enhancement for use of "device-making equipment" to the bank-fraud count (U.S.S.G. § 2B1.1(b)(11)(A)(i)).
The court separately imposed the statutory mandatory consecutive two-year sentence for aggravated identity theft (18 U.S.C. § 1028A), declining to depart below the statutory minimum because the government did not move under 18 U.S.C. § 3553(e).
The government moved under U.S.S.G. § 5K1.1 to reduce A.M.'s bank-fraud sentence for substantial assistance, but expressly declined to move under § 3553(e) for the identity-theft count.

Issue	A.M.'s Argument	Government/District Court Argument	Held
Whether a conviction for aggravated identity theft bars a Guidelines enhancement for use of device-making equipment in the underlying fraud count	§ 2B1.6 (and its comment) precludes enhancements based on conduct tied to identity theft; device-making equipment copies means of identification, so the enhancement is barred	§ 2B1.6 bars enhancements only for possessing, transferring, or using a "means of identification"; device-making equipment is not itself a means of identification, so enhancement is permissible	Enhancement for using device-making equipment stands; § 2B1.6 does not preclude it
Whether the district court could depart below the statutory minimum for aggravated identity theft without a government motion under 18 U.S.C. § 3553(e)	The plea agreement and the government’s § 5K1.1 motion for the bank-fraud count impliedly obligated or authorized the court to depart below the statutory minimum for the identity-theft count	A § 3553(e) motion by the government is required to permit a below-statutory-minimum sentence; no such motion was made and the government expressly declined to seek it	Court lacked authority to depart below the mandatory two-year term; denial of downward departure affirmed

United States v. Jones, 792 F.3d 831 (7th Cir.) (holds device-making-equipment enhancement valid alongside aggravated-identity-theft conviction)
United States v. Cruz, 713 F.3d 600 (11th Cir.) (same conclusion regarding device-making equipment)
United States v. Sharapka, 526 F.3d 58 (1st Cir.) (same)
United States v. Jenkins-Watts, 574 F.3d 950 (8th Cir.) (discusses related enhancements)
United States v. Lyons, 556 F.3d 703 (8th Cir.) (addresses access-device enhancements)
Melendez v. United States, 518 U.S. 120 (Supreme Court) (a § 5K1.1 or similar acknowledgment is not a substitute for a § 3553(e) government motion to permit below-statutory-minimum sentencing)
United States v. Torres, 251 F.3d 138 (3d Cir.) (standard of review: legal questions reviewed de novo)