431 F. App'x 428
6th Cir.2011Background
- Gilmore pled guilty to ten counts of identity theft-related offenses and was sentenced to 42 months.
- PSR calculated total offense level 23 and criminal history I, with a 16-level enhancement under § 2B1.1(b)(1)(I) based on a $1,391,000 loss.
- Loss was computed using the $500 per access device floor for 2,782 devices (1,143 SSNs and 1,604 bank numbers) despite no unauthorized charges for some devices.
- Gilmore objected, arguing the floor/surcharge applied only to devices with unauthorized charges; district court rejected this and imposed the enhancement.
- The district court downwardly varied, finding the sixteen-level enhancement would yield an overly harsh sentence, resulting in 42 months total.
- Gilmore contends on appeal that the district court erred in loss calculation and related guideline interpretation; the court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper loss calculation under § 2B1.1(b)(1)(I)? | Gilmore argues the $500 per-device floor applies only to devices actually used. | Gilmore contends the floor should not apply to devices not used to make charges. | Floor applies per device regardless of use; calculation upheld. |
| Interpretation of Application Note 3(F)(i) in this context? | Gilmore relies on text limiting loss to charges made. | Gilmore contends the note restricts loss to charged devices only. | Note establishes floor per device; plain language supports per-device loss regardless of charges. |
| Was the district court correct to apply per-device loss to all stolen devices? | Gilmore contends some devices not used should not inflate loss. | Court correctly applied $500 per device as minimum loss per device. | Yes; court applied $500 per device to all stolen devices; no error. |
| Impact of the loss on the overall sentence and the downward variance? | Sixteen-level enhancement would be overly harsh; variance appropriate. | district court properly varied; final sentence within reason. | Court affirmed the sentence after applying variance; no reversal on this issue. |
| Mootness of the policy-studies expenses argument? | Expense inclusion as loss under § 2B1.1(b)(1) was erroneous. | Even if error, large loss makes the issue moot. | moot; no reversal on this point. |
Key Cases Cited
- Stinson v. United States, 508 U.S. 36 (1993) (Sentencing guidelines commentary controlling unless unconstitutional)
- United States v. Jarman, 144 F.3d 912 (6th Cir. 1998) (commentary to guidelines accorded controlling weight)
- United States v. Woods, 367 F. App’x 607 (6th Cir. 2010) (applies $500 per-device rule even when not all devices used)
- United States v. Little, 308 F. App’x 633 (3d Cir. 2009) ($500 per device applied to all stolen numbers)
- United States v. Camper, 337 F. App’x 631 (9th Cir. 2009) (loss computed using $500 presumed loss per device)
- United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) (standard for review of loss determinations)
- Portela, 469 F.3d 496 (6th Cir. 2006) (de novo review of sentencing guidelines interpretations)