United States v. Keith Carver, Jr., 916 F.3d 398

In 2015 police searched a Greenville, SC hotel room and found Carver with an encoder (overwriter), driver’s licenses in various names, 50+ gift/credit cards (many overwritten), drug paraphernalia, and a laptop; some property was later identified by a burglary victim.
Carver pled guilty in 2016 to two counts: possession of ≥15 access devices with intent to defraud (18 U.S.C. §1029(a)(2),(3)) and possession of device‑making equipment with intent to defraud (18 U.S.C. §1029(a)(2),(4)).
He later pled guilty (2017) to an Information charging aggravated identity theft (18 U.S.C. §1028A); he does not contest his earlier guilty pleas on appeal.
The PSR applied a base level plus enhancements: +2 for device‑making equipment, +4 for loss between $15,000–$40,000 (applying a $500 minimum per access device), and +2 for >10 victims; PSR initially counted 53 cards and 27 victims, later adjusted to 51 overwritten cards and 18 victims after testimony.
The district court denied Carver’s request for a §3E1.1 acceptance‑of‑responsibility reduction (finding his remorse not credible and objections not substantially warranted) and sentenced him to 33 months (Counts 1–2 concurrent) and a consecutive 24 months for identity theft.

Issue	Carver's Argument	Government's Argument	Held
Validity of guilty plea to the Information (Rule 11)	Plea colloquy had defects; plea therefore invalid	Plea colloquy was proper; Carver’s sworn statements were sufficient	Plea valid; no plain error shown
Whether overwritten cards must be currently functional to qualify as "access devices" for loss calc.	Cards must be usable now to be "access devices"; otherwise cannot count toward $500 per device rule	Statutory definition and Sentencing Guideline commentary cover devices altered/expired/etc.; current functionality not required	Rejected usability requirement; Congress intended broad definition; district court did not err
Number of victims for guideline enhancement	Names on cards/IDs are insufficient absent proof of pecuniary loss	Testimony identifying 18 victims and guideline commentary treat each device as causing ≥$500 loss per device	Carver conceded identification at sentencing; court properly counted 18 victims
Denial of acceptance‑of‑responsibility reduction (§3E1.1)	Guilty pleas and statements show acceptance of responsibility	District court’s credibility findings justified denial given delay, objections, and lack of remorse	Affirmed—district court’s credibility determination not clearly erroneous

United States v. Onyesoh, 674 F.3d 1157 (9th Cir. 2012) (held a card must be currently functional to be an access device)
United States v. Popovski, 872 F.3d 552 (7th Cir. 2017) (rejected usability requirement for access devices)
United States v. Moon, 808 F.3d 1085 (6th Cir. 2015) (rejected usability standard; upheld broad definition)
United States v. Thomas, 841 F.3d 760 (8th Cir. 2016) (discussed circuit split and no plain error for failing to assess usability)
United States v. Horton, 693 F.3d 463 (4th Cir. 2012) (standard of review: de novo for legal questions, clear error for factual findings)
United States v. May, 359 F.3d 683 (4th Cir. 2004) (defendant bears burden to demonstrate clear acceptance of responsibility under §3E1.1)