United States v. Keyiona Marvete Wright
2017 U.S. App. LEXIS 12673
| 11th Cir. | 2017Background
- Wright rented Apartment 104 (Sept. 2014–Apr. 2015). IRS traced dozens of fraudulent tax-return submissions and hundreds more rejections to an IP address assigned to that apartment; agents executed a May 7, 2015 search and found notebooks, laptops, a smartphone, 331 debit/credit cards, and notebooks containing thousands of victims’ PII.
- Factual proffer and IRS analysis identified 14,545 compromised identities (46 accepted returns claiming $135,196; 688 rejected returns seeking $733,276; and 13,811 other PII entries). Wright pled guilty to conspiracy to commit wire fraud (Count 1) and aggravated identity theft (Count 6); other counts were dismissed.
- The PSI attributed an intended loss of $7,773,972 by applying a $500-per-access-device rule to 13,811 PII items; with 2015 Guidelines changes, offense level was recalculated to 25 (but the question whether loss exceeded $3.5M remained pivotal).
- District court denied Wright a minor-role reduction and an acceptance-of-responsibility reduction (the latter because Wright was convicted on a misdemeanor marijuana possession while on pretrial release). Court sentenced Wright to 60 months on Count 1 plus mandatory consecutive 24 months on Count 6 (84 months total), then Wright appealed.
- Eleventh Circuit: affirmed most rulings (minor role denial; denial of acceptance reduction; treatment of nolo contendere diversion as a prior sentence) but reversed and remanded on loss-amount and certain criminal-history factual findings (insufficient description of the thousands of PII to justify $500 multiplier; need factfinding on 2013 marijuana disposition and PII in containers).
Issues
| Issue | Plaintiff's Argument (Wright) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether social security numbers and other PII count as "access devices" triggering $500-per-device for loss calculation | Only some items (cards, SSNs) qualify; thousands of PII entries were unspecified and cannot be presumed as access devices | Many SSNs and 331 cards were present; $500 applies to each access device and can be applied to those items and other PII that qualify | SSNs qualify as access devices; debit/credit cards qualify; but record lacked adequate proof that the thousands of other PII were access devices—remanded for factual findings on PII types and loss amount |
| Whether court properly applied $500 multiplier to PII found in trash bag and suitcase (responsibility for containers) | Wright claimed those items preexisted her tenancy and she was not responsible | Government relied on occupancy, apartment condition testimony, and pervasive PII throughout the unit to tie containers to Wright or co-conspirators | Court found government met preponderance to attribute those containers to Wright but remanded for specific findings about the types of PII inside them |
| Whether Wright was entitled to a mitigating-role reduction under U.S.S.G. § 3B1.2 | Wright asserted lesser culpability and fear prevented identifying others | Govt emphasized Wright’s possession of thousands of PII, texts distributing PII, money-counting video, and lack of proof about other participants | Denial affirmed: Wright failed to prove by preponderance that she was less culpable than most participants |
| Whether Wright was entitled to acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1 despite marijuana conviction while on pretrial release | Wright argued she cooperated, pled guilty, and the misdemeanor should not preclude the reduction | Govt and district court relied on her post-arrest marijuana conviction while on bond as bearing on continued criminal conduct | Denial affirmed: district court properly considered subsequent unrelated criminal conduct and did not err |
| Whether prior traffic citations for driving with a suspended license constitute "intervening arrest" for criminal-history computation under U.S.S.G. § 4A1.2(a)(2) | Wright argued the citations should not be counted separately or should be consolidated | Govt treated each distinct incident as separate prior sentences | Court held a traffic citation is not an "arrest" under § 4A1.2(a)(2); two of the three suspended-license incidents counted separately due to an intervening custodial arrest, but one citation did not qualify as an arrest; remand required to resolve other prior-sentence facts (2013 marijuana disposition) |
Key Cases Cited
- United States v. Taylor, 818 F.3d 671 (11th Cir.) (credit cards are access devices)
- United States v. Baldwin, 774 F.3d 711 (11th Cir. 2014) (debit cards qualify as access devices)
- United States v. Dabbs, 134 F.3d 1071 (11th Cir. 1998) (merchant account numbers constitute access devices)
- United States v. Moran, 778 F.3d 942 (11th Cir.) (reasonable estimate of loss; conspiracy loss attribution)
- United States v. Pace, 17 F.3d 341 (11th Cir. 1994) (post-arrest unrelated criminal conduct may justify denial of acceptance-of-responsibility)
- United States v. Leal-Felix, 665 F.3d 1037 (9th Cir. en banc) (traffic citation is not an "arrest" for guideline purposes)
- United States v. Wilks, 464 F.3d 1240 (11th Cir. 2006) (intervening arrest separates prior offenses for counting)
- United States v. Rockman, 993 F.2d 811 (11th Cir. 1993) (diversionary dispositions and counting prior sentences)