United States v. Kelli Prather, 138 F.4th 963

Kelli Prather was convicted by a jury of bank fraud, wire fraud, aggravated identity theft, and making a false statement on a loan application related to fraudulent PPP and EIDL loans during the COVID-19 pandemic.
Prather applied for over $1.2 million in relief via loan applications for several non-operational businesses, fraudulently using her nephew D.P.’s identity for some applications.
Bank employees and investigators noticed irregularities, triggering a federal investigation which confirmed the vast majority of Prather’s businesses were non-existent.
The district court sentenced Prather to 84 months in prison: concurrent 60-month terms for most counts, plus a consecutive 24 months for identity theft.
Prather appealed her convictions and sentence, raising evidentiary, instructional, and sentencing issues, including whether she could be convicted of aggravated identity theft for using D.P.’s information with his consent, and whether recent Supreme Court rulings undercut the sentencing guidelines applied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for aggravated identity theft	Prather argued there was insufficient proof she used D.P.’s identity “without lawful authority” since D.P. consented.	Government argued Prather used D.P.'s identity to commit fraud and, under circuit law, consent does not confer lawful authority for illegal acts.	Conviction affirmed; consent does not bar aggravated identity theft if used fraudulently.
Admission of lay/expert testimony	Prather claimed Special Agent Reier’s opinion was impermissible lay (or expert) testimony and prejudiced her.	Government countered the testimony was cumulative, not outcome-determinative, and similar evidence was admitted without objection.	No plain error; substantial evidence supported the outcome apart from contested testimony.
Admission of past bad acts evidence (Rule 404(b))	Prather: her ex-fiancé’s testimony on prior unrelated fraud was improper character evidence.	Government: Even without advance notice, evidence had minimal impact due to overwhelming evidence of guilt.	No plain error; any error was harmless.
Sentencing enhancements and definition of "loss"	Prather argued court erroneously applied Guidelines commentary and recent Supreme Court precedent undermined deference to such commentary.	Government maintained circuit precedent still required deference to the Guidelines commentary as applied.	Sentence affirmed; no error in relying on commentary or applying vulnerable victim enhancement.

United States v. Sherer, 770 F.3d 407 (6th Cir. 2014) (manifest miscarriage of justice standard for unpreserved sufficiency challenges)
United States v. Lumbard, 706 F.3d 716 (6th Cir. 2013) (identity misuse can be "without lawful authority" even with consent)
United States v. Mobley, 618 F.3d 539 (6th Cir. 2010) (fraudulent use of one’s own SSN can be “without lawful authority”)
Kisor v. Wilkie, 588 U.S. 558 (2019) (Auer deference for agency interpretations)
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) (overruled Chevron but not Auer deference)
United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (limits judicial deference when commentary adds to Guidelines)
Neder v. United States, 527 U.S. 1 (1999) (wire fraud statute’s interstate element is jurisdictional)