United States v. Travon Mayberry, 704 F. App'x 509

Travon Mayberry and co-conspirators purchased bulk stolen credit‑card numbers, encoded them onto cards, bought Meijer gift cards at self‑checkout, then used those to buy Apple electronics which were resold for cash.
Mayberry pleaded guilty to conspiracy and aggravated identity theft; Guidelines range (count 1) was 18–24 months (overall 42 months recommended including mandatory consecutive 24 months on count 3); district court sentenced him to 54 months (30 months on count 1 + 24 months consecutive).
Before sentencing the district court issued pre‑sentencing orders (17 days before) asking the parties to address loss calculations and inconsistencies among co‑defendants’ PSRs.
At sentencing the government and Special Agent Dobb presented testimony and evidence (texts, videos, website logins) portraying Mayberry as a principal, purchaser of card numbers, source of re‑encoded cards, coordinator of others, and a larger profit recipient.
The district court applied an upward departure under Application Note 20 to USSG §2B1.1 (two‑level departure) and/or relied on §3553(a) factors, concluding the Guidelines understated Mayberry’s culpability; Mayberry appealed asserting (1) inadequate Rule 32(h) notice of an intended upward departure and (2) that the court’s finding that he was the most culpable defendant was clearly erroneous.

Issue	Mayberry's Argument	Government's Argument	Held
Whether district court failed to give reasonable notice under Fed. R. Crim. P. 32(h) before departing upward	Mayberry: 17 days' pre‑sentencing order was insufficient; he was surprised/unable to prepare (no co‑defendant PSRs provided); thus prejudice occurred	Govt: court’s pre‑sentence orders, shared amended PSR/loss tables, and agent testimony put Mayberry on notice of loss/culpability issues; counsel had opportunity to respond	Court: Notice was reasonable under Rule 32(h); no plain error — 17‑day order + on‑the‑record discussion and opportunity to object sufficed; no prejudice shown
Whether district court’s factual finding that Mayberry was most culpable was clearly erroneous	Mayberry: court relied on pre‑/post‑offense conduct and inferences from texts/videos beyond the indictment period; factual finding not supported	Govt: district court relied on Agent Dobb’s testimony, Mayberry’s PSR admissions, and shared loss tables — permissible under Guidelines and §3553(a)	Court: Finding not clearly erroneous; departure under Application Note 20 valid and sentence procedurally and substantively reasonable (alternative §3553(a) rationale also supported sentence)

United States v. Meeker, 411 F.3d 736 (6th Cir. 2005) (Rule 32(h) notice protects due process; notice must be reasonable)
United States v. Coppenger, 775 F.3d 799 (6th Cir. 2015) (vacating sentence when court relied on detailed co‑defendant PSR information not disclosed to defendant)
Irizarry v. United States, 553 U.S. 708 (2008) (sentencing procedures must allow adequate opportunity to confront and debate issues relied upon)
United States v. Olano, 507 U.S. 725 (1993) (plain‑error review framework)
Gall v. United States, 552 U.S. 38 (2007) (reasonableness review of sentencing; procedural/substantive standards)
United States v. Simmerman, 850 F.3d 829 (6th Cir. 2017) (deferential review of district court factual findings applying Guidelines)
United States v. Erpenbeck, 532 F.3d 423 (6th Cir. 2008) (harmless‑error principle for alternative sentencing rationales)