United States v. Zerry Feaster, 798 F.3d 1374

Feaster, a VA employee with a government purchase card, purchased prepaid gift cards for personal use from Feb 2010–Feb 2012 and concealed the purchases by creating fictitious purchase orders in the VA’s VISTA/IFCAP system.
She converted $88,264.47 of VA funds into gift cards and other personal expenditures, and admitted sole responsibility.
A grand jury indicted Feaster on seven counts of theft of public money (18 U.S.C. § 641), each alleging $400 or less, and four counts of making false statements (18 U.S.C. § 1001). She pled guilty to all counts.
The PSR treated all § 641 counts as felonies, calculated loss-based enhancements under U.S.S.G. § 2B1.1(b)(1)(E), and recommended a two-level sophisticated-means enhancement under U.S.S.G. § 2B1.1(b)(10)(C), yielding an offense level of 13 and a Guidelines range of 12–18 months.
The district court applied the sophisticated-means enhancement, sentenced Feaster to 13 months’ imprisonment, 3 years’ supervised release, and ordered restitution of $88,264.47 and special assessments.
On appeal Feaster argued (1) each § 641 count charging ≤ $1,000 should be a misdemeanor (rather than felony) and (2) the sophisticated-means enhancement was wrongly applied or clearly erroneous.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether each § 641 count charging ≤ $1,000 is a misdemeanor independent of aggregate loss	Feaster: Each individual count alleging theft ≤ $1,000 should be treated as a misdemeanor.	Government: § 641’s plain language makes all violations felonies unless the aggregate value of property in all § 641 counts of conviction is ≤ $1,000, in which case the convictions are misdemeanors.	Court: Affirmed gov’t. § 641 is a felony statute with a narrow mitigation clause; counts are felonies because aggregate loss > $1,000.
Whether sophisticated-means enhancement (U.S.S.G. § 2B1.1(b)(10)(C)) was properly applied	Feaster: District court applied wrong legal standard and clearly erred; her acts were not the kinds of concealment the Application Note describes.	Government: The enhancement may be applied based on the totality of the scheme; repeated deceptive steps, use of inside position, multi-year concealment, and affirmative steps to hide transactions support the enhancement.	Court: Affirmed. District court used permissible “totality of the scheme” approach and did not clearly err in finding sophisticated means based on repeated coordinated concealment, use of position, multiple concealment steps, and two-year undetected scheme.

United States v. Lagrone, 773 F.3d 673 (5th Cir. 2014) (interpreting § 641’s aggregation language and rejecting contrary reasoning)
United States v. Venti, 687 F.3d 501 (1st Cir. 2012) (affirming felony § 641 convictions despite multiple small-count allegations)
United States v. Tupone, 442 F.3d 145 (3d Cir. 2006) (describing structural pattern of felony statute with narrow misdemeanor exception)
United States v. Campbell, 491 F.3d 1306 (11th Cir. 2007) (upholding sophisticated-means enhancement where concealment used non‑offshore methods like straw accounts and campaign funds)
United States v. Ghertler, 605 F.3d 1256 (11th Cir. 2010) (endorsing consideration of totality and multi‑year concealment in applying sophisticated-means enhancement)