United States v. Perry Haywood, Jr., 681 F. App'x 290

Perry J. Haywood, Jr. pled guilty (written plea) to possession of access device‑making equipment with intent to defraud (18 U.S.C. § 1029(a)(4)) and aggravated identity theft (18 U.S.C. § 1028A).
District court sentenced Haywood to 54 months total: 30 months on the access‑device count and a consecutive 24 months on the identity‑theft count.
Counsel filed an Anders brief asserting no nonfrivolous issues but challenging (1) the district court’s loss‑amount determination (which produced a 4‑level enhancement under USSG § 2B1.1(b)(1)(C)) and (2) whether applying the 2015 Sentencing Guidelines violated the Ex Post Facto Clause; Haywood filed a pro se supplemental brief raising the same points.
The plea‑agreement stipulation referenced 28 account numbers but also identified 48 plastic cards (each qualifying as an “access device”) and several skimming devices; the district court used 48 devices for loss calculation, applying the Guidelines’ $500 minimum per device rule.
The district court adopted the 2015 Guidelines (at defense request because it was favorable), applied the $500‑per‑device minimum, resulting in a $24,000 loss calculation and a four‑level enhancement.
This court reviewed the record under the abuse‑of‑discretion standard for sentencing and affirmed; it rejected both the loss‑calculation challenge and the Ex Post Facto claim and noted a separate remedy (28 U.S.C. § 2241) for any BOP computation claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court erred in computing loss amount for Guidelines (affecting 4‑level enhancement)	Haywood argued only 28 account numbers were implicated, so loss ≤ $14,000 and enhancement not warranted	Government relied on stipulation noting 48 plastic cards (each an “access device”) and applied the Guidelines’ $500‑per‑device minimum, yielding $24,000 loss	Court held loss calculation was not clearly erroneous; 48 devices × $500 supports the 4‑level enhancement
Whether use of the 2015 Sentencing Guidelines violated the Ex Post Facto Clause	Haywood contended using the later edition was improper	Defense actually requested 2015 edition because it was favorable; court granted the request; no retroactive increase in punishment alleged	Court rejected Ex Post Facto challenge as meritless; use of 2015 Guidelines acceptable

Anders v. California, 386 U.S. 738 (1967) (establishes procedure for counsel to brief frivolous appeals)
Gall v. United States, 552 U.S. 38 (2007) (standard for appellate review of sentencing reasonableness)
United States v. Miller, 316 F.3d 495 (4th Cir. 2003) (Government must prove loss by a preponderance in fraud cases)
United States v. Jones, 716 F.3d 851 (4th Cir. 2013) (appellate review of loss determinations for clear error)
United States v. Miller, 871 F.2d 488 (4th Cir. 1989) (BOP computation claims may be pursued via 28 U.S.C. § 2241)