United States v. Anthony Minor
831 F.3d 601
5th Cir.2016Background
- Katrina Thomas, a Fannie Mae employee, misappropriated PI for ~1,107 individuals and gave it to Anthony Minor. Minor used that information to impersonate victims and attempt to transfer funds into accounts he controlled.
- A search warrant for Minor’s vehicle (based on an affidavit by Agent Albert Moore referencing a hotel security director’s observations) led to evidence used at trial.
- A jury convicted Minor of multiple counts including bank fraud, conspiracy, unauthorized access device offenses, and aggravated identity theft; the district court sentenced him to 192 months (below Guidelines).
- The district court applied a six-level enhancement under U.S.S.G. § 2B1.1(b)(2)(C) for 250+ victims (finding 361 victims) and an 18-level loss enhancement under § 2B1.1(b)(1)(J) based on an intended-loss calculation of $3,151,629.
- Minor appealed arguing (1) entitlement to a Franks hearing, (2) error in the 250+ victims enhancement, (3) error in the intended-loss calculation, and (4) that he should be resentenced under the 2015 Guidelines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to a Franks hearing to challenge warrant affidavit | Minor argued affidavit contained false statements because hotel security testimony contradicted Agent Moore’s affidavit | Government: Minor conceded no intentional or reckless falsity by the affiant; therefore no Franks showing | Denied — defendant failed to make the substantial preliminary showing of intentional or reckless falsehood required by Franks v. Delaware; proposed exception rejected |
| 250+ victims enhancement under U.S.S.G. § 2B1.1(b)(2)(C) | Minor contended only ~150 accounts were successfully breached, so victims should be limited to successful breaches | Court (and government): ‘‘victim’’ includes any person whose means of identification was unlawfully used or attempted to be used | Affirmed — attempted unlawful use constitutes a ‘‘use’’; 361 individuals counted as victims (citing analogous Eleventh Circuit authority) |
| Calculation of intended loss for § 2B1.1(b)(1) enhancement | Minor urged using average loss per successfully breached account (~$284.66) times intended targets, yielding a lower total and lower enhancement | District court used average actual loss of successfully breached accounts (~$2,847) multiplied by total intended targets (1,107), producing $3,151,629 | Affirmed — district court’s methodology was a reasonable estimate and bore a reasonable relation to intended harm; 18-level enhancement appropriate |
| Remand for resentencing under 2015 Sentencing Guidelines | Minor asked resentencing under the revised 2015 Guidelines | Government relied on controlling precedent foreclosing remand | Denied — argument foreclosed by controlling Fifth Circuit precedent; sentence affirmed |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (1978) (Franks hearing required when defendant makes substantial preliminary showing of intentional or reckless falsehood in warrant affidavit)
- United States v. Adeife, [citation="606 F. App'x 580"] (11th Cir. 2015) (unlawful use or attempted use of an identity converts an individual into a victim for Guidelines enhancement)
- United States v. Chappell, 6 F.3d 1095 (5th Cir. 1993) (approving assignment of average value to unrecovered instruments to estimate intended loss)
- United States v. Garcia-Carrillo, 749 F.3d 376 (5th Cir. 2014) (foreclosing remand for resentencing based on later Sentencing Commission amendment)