*2 NYGAARD, Circuit Judges.
OPINION OF THE COURT RENDELL, Cirсuit Judge. Brian appeals from his sentence imposed plea after a guilty to two counts of mail fraud in violation of 18 1341. He was sentenced to a term of 78 imprisonment. months’ argues that the District Court improperly calculated applicable range. Guideline agree We and will vacate the sentence imposed by the District Court and remand for resentencing. History
I. Facts Procedural Brian Hawes registered was a invest- ment advisor and owner president two advisory services, investment Finan- cial Management Advisory Services (“FMAS”) Management Financial Ser- vices, (“FMS”). Inc. he became an authorized representative Fidelity Investments Investment Group Advisors (“Fidelity”). from one client ac- would transfer funds Hawes used through
From FMAS, Through another. he count to advisor as an investment position his provide statements they had would then issue monies that his clients of defraud the trans- report his clients that did not agree pur- him. He would entrusted *3 clients, falsely the value of the fers and overstated of his but on behalf annuities chase Having ensured that personal Fidelity accounts. money for keep would instead ac- would not receive accurate but his clients annuities as instructed buy the use or Fidelity, statements from Hawes use. To count them for his own liquidate later from his clients. was to hide the fraud theft, false account able he creаted conceal his statements, account bal- indicating higher death, 2003, Hawes’ In after his father’s his clients. ances, them to and submitted had been steal- mother discovered that he had entrusted ing money parents that his 1998, a number persuaded
In Hawes submitting him investment and into invest- with for their assets clients to move his falsely to them that reflected by Fidelity. For statements offered products ment accounts, purchased that annuities had been Fideli- product these investment money. threatened to earning were She regu- mail account statements ty would money was report his crime unless directly to a client’s residence intervals lar a total 2002, agreed repay and Hawеs repaid, Hawes choice. Until or address of $780,000 payment sched- pursuant to his clients also issue statements would service, payment In order to make the first advisory ule. investment through his mother, $125,000 from his Hawes stole FMAS, accurately the Fidel- reflected advisor, other clients’ accounts. a financial he investments. As ity use his clients’ social authorized to was 31, 2003, fraud was Hawes’ On October identifying in- security numbers and frozen. and his accounts On uncovered Fidelity accounts to access their formation 9, 2004, a information was April two-count of busi- regular course and did so filed, of mail fraud alleging two counts ness. 1341. On violation 18 U.S.C. date, guilty to both 2002, however, pleaded Hawes used samе
Beginning 4, 2004, was sen- August he his counts. On accounts without access to client his imprison- months’ tenced to a term of 98 changed the ad- permission and clients’ period of ment, three-year Fidelity ac- followed clients’ to which his dresses release, pay and ordered supervised In some were mailed. count statements $2,601,961.60. in the amount of instances, change of address restitution he mailed Supreme Court’s deci- Investments, In the wake of the indicating Fidelity forms Booker, 543 U.S. sion in United States should be sent that future statements (2005), 738, 220, L.Ed.2d 621 others, he accessed S.Ct. address. his office summary remand Hawes filed a motion for changed online accounts his clients’ 9, 2005, 2005, and, 3, August May on his on Hawes then notifiеd the addresses. Hawes’ conviction affirmed longer no this Court Fidelity would clients that The trial resentencing. remanded that FMAS paper statements and issuing January sentencing hearings on held paper account court to issue would continue 29, App. 78- March and June reflecting their balances statements Fidelity. hearings, course of the During the and transfer began then to divert Banta, Angelica heard from District Court person- for his funds into an account
client prepared who theft, probation officer he discovery of his To avoid al use. that, prevent She testified her had stolen and to her report- PSR.1 an enhancement un- opinion, theft him to the authorities. 2Bl.l(b)(9)(C)(i) рrop- der U.S.S.G. The District by chang- Court ruled that security er because Hawes used the social clients, ing the addresses of his Hawes did change numbers of his clients to their ad- illegally use a means of identification “to dresses so that he would receive the state- produce duplicate or alter means of identi- indicating ments the real balances of their applied fication” and a two-level enhance- Obtaining change investment accounts. 2Bl.l(b)(9)(C)(i). ment under U.S.S.G. regarded by of address was Ms. Banta as The District applied Court also a vulnera- obtaining another form identification— ble victim enhancement under U.S.S.G. and, therefore, subject *4 his clients’ mail— 3Al.l(b) § upon finding that some of the theft enhancement. Coun- persons victims were with whom Hawes government argued sel for a relationship had close and others were name and address was a means of identifi- retired, elderly suffering and from Al- cation changing pro- an address was zheimer’s. calculated Guideline ducing another means of identification. Range was 70 to imprisonment. 87 months’ Hawes testified that his willingly clients ultimately Hawes was sentenced to 78 provided information, him with certain in- imprisonment, months’ by followed a name, address, cluding security social three-year release, period supervised number, birth, number, phone date of $2,276,565.31 pay and ordered to in restitu- assigned unique were a identification num- tion to timely his victims. Hawes appeal- by ber the financial institution. He fur- ed his sentence. discretionary ther testified that he had prior control over the accounts and au- II. Discussion engage any thorization to transaction objections Hawes raises a number of necessary. Moreover, he deemed after (1) his sentence: that the District Court changed online, a client’s address erroneously applied a “identity two-level fax, by email, Fidelity or would send theft” enhancement to his Base Offense change confirmation of the of address to § 2Bl.l(b)(9)(C)(i); Level under U.S.S.G. the client’s former address. (2) that the District erroneously ap- Court At the sentencing hearings, govern- plied a two-level “vulnerable victim” en- presented ment testimony appro- as to the hancement to his Base Offense un- Level priateness of a vulnerable victim sentence (3) 3A1.1(b)(1); der U.S.S.G. that his 3Al.l(b). enhancement under U.S.S.G. unreasonable; (4) sentence is Clients defrauded elderly, Hawes were District Court did not consider the factors ill, unsophisticated. 399, App. set forth in 18 U.S.C. 3663 determin- particular, testimony showed that Hawes ing the amount of restitution. $87,500 diverted from an account belong- ing Dorothy who, McKinney as he was We will consider each of these aware, in nursing arguments home and suffered in turn. We review the Dis from Alzheimer’s disease. He application did so trict Court’s оf the Guidelines order to repay his mother for the funds he to the facts for abuse of discretion. Unit- part sentencing hearing The relevant portions and both the PSR and other of the transcript “Angelica refers to her as Can- sentencing hearing transcripts identify the However, appears vann.” that this was a probation Angelica officer as Banta. error, 6, transcription Appellant's Br. n. 13 information, identify specific 324, 327-28 F.3d Cooper, 437 v. ed States individual, including any- Cir.2006). that Hawes (3d the extent To made argues (A) number, name, security date social interpretation in its error legal birth, government or official State plenary review. license or identification issued driver’s Newsome, 439 F.3d v. States United See number, number, gov- registration alien (3d Cir.2006); v. 181, 184 number, employer or passport ernment Cir.2004). (3d Moorer, F.3d number; taxpayer identification not pre- Hawes did to contentions (B) data, fin- such as unique biometric Court, we use serve im- retina or iris gerprint, print, voice See error standard. exacting plain more physical represen- age, unique or other Merlino, F.3d tation; Cir.2003). (3d (C)unique electronic identification address, code; number, routing Identity Enhancement Theft A. The (D)telecommunication identifying infor- in con- that his conduct contends (as defined mation or access device for a qualify his fraud does cealing *5 1029(e))3 section under U.S.S.G. enhancement two-lеvel 2Bl.l(b)(9)(C)(i). changing determine whether that “the act of To Hawes contends § interpreting engaging is not person’s erred address District Court any to include or use of means enhancement ‘unauthorized transfer identity theft addresses, or du unlawfully clients’ to alter changing of his of identification hybrid language of alternate by looking [an] or assemble begin plicate statutory using ref- a means language of identification’ or and the means Guideline an altered du ‘produce therein. of identification erenced Appel identification.’” means of plicate en- a two-level Under (quoting lant’s Br. Offense Base to a defendant’s hancement (3d Newsome, Cir. F.3d 185-86 in- where the offensе appropriate is Level 2006)). or use of transfer “the unauthorized volved unlawfully to stat asking of identification whether the any begin by means We of iden- any ques other means precise or obtain address the produce plain terms ute’s 2Bl.l(b)(9)(C)(i).2 § address con changing U.S.S.G. an tification.” of whether tion “any to 18 U.S.C. other obtaining refers or producing The Guideline stitutes 1028(d)(4) (now codified at 18 U.S.C. § of identification.” means 1028(d)(7)), that: ob provides has § which the Ninth Circuit Appeals for rather awk served, “the enhancement identification” “means of term v. Melen wardly written.” may any name or number
means
Cir.2004).
(9th
drez,
389 F.3d
any
used,
conjunction
with
alone or
1028(d)(4),
means of identifi-
except that such
2002 edition of
is to the
2. This citation
fictitious)
Manual,
(i.e., not
an actual
Sentencing
cation shall be of
Guidelines
Federal
individual,
probation
person
Court and
defendant or
than the
was used
other
Hawes;
sentencing
this section is
is accounta-
office
for whose
2Bl.l(b)(10)(C)(i).
§
U.S.S.G.
now at
at
§
is not
1B1.3. This
U.S.S.G.
ble” under
means of identifica-
case as the
in this
issue
pro-
§ 2B1.1
Commentary to U.S.S.G.
3. The
individuals, Hawes'
actual
were of
tion used
"
has the
of identification’
that:
'Means
vides
clients.
given
term in 18
meaning
at
“Means of identification”
defined both in
183. The district court held that “New-
general
“any name or
terms as
number
illegally
some had
one means of iden-
used
used,
conjunction
or in
may be
alone
another,”
produce
tification to
and we
information,
any
identify
other
agreed
properly
that the enhancement was
specific
specific
individual” and
terms as
allowed.
Id. at
The fraud
victim’s
particular
an extensive list of
means of
name,
date,
li-
birth
driver’s
information —
1028(d)(7).
identification.
18 U.S.C.
number,
employee
cense
identification
text, however,
is ambiguous as to
un-
number —was means
identification
changing
whether
an address falls within
1028(d)(7).
ques-
der 18 U.S.C.
Id. The
its
clear is that
ambit. What is
the statute
tion was whether the information on the
does not include mail or an address within
“any
new drivers’
constituted
oth-
licenses
identification;
the list of means of
nor are
er means of identification.” Newsome ar-
examples easily analogized
piece
to a
gued that
existing
what he did was use an
of mail
anor
address.
cash,
means of identification to obtain
identification,
to obtain a new means of
is a
paucity
helpful
There
case
like a social security number or a loan
law, largely
this sentencing
because
en
disagreed,
account
reasoning
number. We
only
hancement
enacted in
2000. Nei
(b)(9)(C)(i)
that U.S.S.G.
2B1.1
can be
any
ther we nor
court
has had occa
read as requiring the enhancement
sion to
the issue of
address
whether
“the unauthorized transfer or
of any
use
changing an
obtaining
address constitutes
means of
unlawfully
identification
to alter
producing
or
new means
identification.
duplicate
any
hy-
assemble
alternate
Auguste, however,
United States v.
brid means of identification.”
Id.
*6
where the
had
defendant
added herself to
person’s
another
credit card account
aas
Newsome,
However, in
of
means
secondary
changed
cardholder and had
license,
a
produced,
identification
driver’s
account’s address in order to receive the
specifically
is
in the
mentioned
commen-
card,
secondary
enhancement applied
tary
Furthermore,
to the Guideline.
not
changed
because she had
the address
“breeding”
involved the sort of
of means of
but because she had taken an account
targeted by
identification that is
the en-
it,
number
her
and added
own name to
186;
hancement.
Id. at
see Commentary
thereby creating a new
of
means
identifi
2B1.1,
to
Background (noting
U.S.S.G.
(11th
cation. 392 F.3d
1267-68
Cir.
principally
enhancement “focuses
2004).
aggravated
on an
of identity
form
theft
only
We have issued
one decision inter-
identity
known as ‘affirmative
theft’ or
Guideline,
preting this
”).
‘breeding’
aspects here,
Neither
Newsome,
(3d Cir.2006),
count information Fleet Bank of customers enhancement, theft have courts looked to produce used it to drivers’ licenses application notes, which set forth ex- with photographs of defendants and the information, amples of of conduct they types victims’ which to which then used to withdraw applies funds from accounts. Id. the identification enhancement to obtain another of iden- turn to card means Accordingly, we apply.4 not tification. *7 apply, not the enhancement does of when exam-
that name. In this individual’s any addi- generated has not means the card is the othеr ple, credit engaged identifying information or tional ob- that has been of identification by enhance- “breeding” targeted the in the unlawfully. tained ment. (iii) of Nonapplicability Subsection (b)(10)(C)(i). Examples of easily is not analo- Changing an address — (b)(10)(C)(i) not
which subsection examples application gous are apply as follows: in other to the facts comparison notes. (I) cases, seems closer to card Hawes’ conduct A uses a credit defendant examples of conduct a Note’s Application to make only a wallet from stolen theft, identity such case, not constitute a defen- that does In such purchase. or cash- existing an crеdit card stealing credit as has not used the stolen dant reasoning See, (looking notes and application F.3d e.g., Auguste, 392 4. ''[njeither perfectly 1266, Cir.2004) examples of (11th set (looking first to 1268 crime, conclude but we plain lan matches Melendrez’s then application notes and first like in the his actions are more those v. Me guage guideline); United States of the Cir.2004) lendrez, (9th examples.”). set of 835 389 F.3d 252 existing specifically identify par- an account. uniquely a check from bank one applica-
Discussing examples Accordingly, ticular individual. when these ad- notes, Appeals dressing argument tion Court of for the that bank accounts identification, that “while the use are meаns of Sixth Circuit observed not the Court pur- credit card to make of for the Circuit Appeals Eighth someone’s found it offense, nature of punishable chase is a determinative that “a account num- bank different the harm from that re- a unique ber is identification number.” Scott, (8th United States v. identifying in- using sults from someone’s F.3d 1040 Cir.2006). Unit- new formation to establish credit.” Williams, 893, 900 ed States v. 355 F.3d sentencing, At government argued (6th Cir.2003). Similarly, steal- although that the name and was a address means of ing from accounts he authorized client was way identification because it “the was deserving manage punishment, Fidelity identified clients this case.” harm by caused Hawes was not the breed- App. From a common sense stand- ing оf new identification information or point, find argument this difficult to credit, running up new but rather the theft accept. identify Financial institutions change funds to him. The entrusted clients, by their not name address of, discovery address was to thwart the not (which identifiers), non-unique can be but enable, activity. the illicit by rather account number. Hawes tes- tified, We Fidelity conclude Hawes’ conduct does given was certain informa- qualify not theft enhance- tion an up about clients to set account and piece ment. An way Fidelity address of mail does “[t]he identified a client after not seem to fit the Guideline’s definition of App. account number.” govern- “means of identification.” The suggests genеral ment definition legis Our conclusion is bolstered of “means of identification” includes a history Identity lative Theft and name plus any piece of information Assumption Act of Deterrence plus and thus a name an includes address. 105-318, (1998) No. Pub.L. Stat. To government’s argument take the to its (“ITADA”).5 The ITADA was enacted to conclusion, logical plus a name size or shoe “fraud in make connection with identifica hair color constitute a of iden- could means tion just [not identification information statute, tification. We believe 105-274, S.Rep. documents] crime.” No. the language suggests, requires that (1998), Cong. U.S.Code & Ad that,
means just of identification be 1998, p. (“Today, min.News criminals identification, means mеrely not an at- necessarily do need document to identity. tribute of one’s identity; an they just assume often need *8 The examples enumerated in the 18 information itself to facilitate ... 1028(d)(7) unique are identifi- means of can keep pace crimes.... statute [T]his cation, advances.”). primarily numbers. A secu- social with criminals’ technological rity number, number, account the oth- provided although The ITADA that “there er examples provided fraud,” within the statute identity exists no clear definition of unclear, (1992) statutory meaning (stating statutory Because the 519 that resort legislative history discerning the can aid us in history appropriate language where stat- of purpose thе interpreting Guideline’s it ambiguous confusing); ute is or United States Shumate, appropriately. See Patterson v. 504 Pollen, 78, (3d Cir.1992). v. 978 F.2d 85 753, 761, 2242, U.S. 112 S.Ct. L.Ed.2d 119
253
per
absurd or unintended results “de-
‘stealing’
produce
another
typically
“involves
monstrably
...
of
identifying information
odds with
intentions
personal
son’s
credit,
up
run
drafters.”
v. Ocean-
fraudulently
statute’s]
establish
[the
Griffin
Contractors, Inc.,
564, 571,
financial
debt,
existing
458 U.S.
or
take over
ic
(1982). Here,
3245,
Commentary to U.S.S.G. Guideline Calculation Newsome, As “Con- ground. we said pun- provide wanted to increased gress urges us to hold government identity theft involved ishment iden application of the erroneous identifi- of means of counterfeit creation of tity theft enhancement calculation plain type rather than the vanilla cation Range harmless. Hawes’ Guidelines identity person that occurs of theft when v. Our recent decision credit person uses B’s A steals and (3d Cir.2008), con Langford, F.3d multiplication of means card.... This analysis us to our of this issue.6 For trols theft type identification is sentence, “it clear must be uphold Congress greater deserved believed not affect district the error did Newsome, at 186. 439 F.3d punishment.” imposed.” selection of sentence court’s observed, appeals other courts of have defending the party at 215. As the Id. harm’ to be meant ‘naturе “[t]he imposed, government bears sentence is, in part, targeted this enhancement court of “persuading] the burden using someone’s ‘that results have district court would appeals new identifying information establish the er the same sentence absent imposed ” Oates, v. 427 F.3d credit.’ United States v. United factor.” Williams roneous (8th Cir.2005) 1086, (quoting 1112, 193, 203, States, 112 S.Ct. 503 U.S. (6th Williams, 893, 900 355 F.3d (1992). 117 L.Ed.2d Cir.2003)). case, enhancement, on the In the based present purpose Given enhancement, identity theft apply the Guideline to we will read level the total offense changing calculated the addresses Court Hawes’ conduct in a which resulted instead statements lest on his clients’ account *9 differently another. Langford the Guidelines Although con- of error at issue in 6. the error, may Regardless nature of the of the a of the criminal histo- cerned miscalculation level, the range the chosen there is affect Guideline ry the offense level rather than ultimately imposed. type sentence of miscalculation no reason to treat one Range of 70 im- The Guideline to 87 months’ miscalculation of the Guideline prisonment, rather than 57 to months. range by District the Court also affected acknowledged The the advisory Court that arguments the parties the made at range of Guideline 70 to 87 months was the sentencing. After the Court decided that starting any point sentence she would the enhanсement apply would and the impose. judge The indicated her belief months, range 70 to would be defense advisory guide- that “a sentence within the argued counsel for a sentence the bot- line range appropriately concern and Guidelines, is, tom of the a 70-month of the of sentencing” address all concerns range, sentence. the Under correct coun- her intention stated to “sentence with- sel urged impose would have the Court range.” App. On the 411. basis a 57-month sentence instead. 3553(a) factors, § its of the evaluation the harmless, Because error was not we imposed Court then sentence of 76 will remand to the District Court for re- months in the middle to end low sentencing light foregoing. advisory range Guidelines it had calculat- ed.7 objections remaining C. Hawes’ government has not met its burden his sentence showing the error was harmless. Because will we remand for resentenc- by It “unambiguous” is no means ing, we must address the other errors that Hawes’ sentence would same re- alleges Hawes were committed the Dis- gardless of whether the theft en- trict Court in calculating his Guideline applied. Langford, hancement See range. F.3d at 217. It is clear from the record sentencing court intended to and 1. Vulnerable victim enhancement did in fact select Hawes’ sentence from the challenges range. calculated Hawеs’ sentence was in Court’s impose decision to a two-level en lowpoint mid- to calculated 3Al.1(b)(1), § hancement under U.S.S.G. range. Because the enhancement was er- provides for such enhancement roneously applied, imposed “[i]f the Court the defendant knew or should have known sentence outside the proper Guideline that a victim of the range offense was vulnera of 57 to 71 In months. order to ” ble A sentence, victim.... impose a vulnerable victim 76-month the Court (A) “means a person who a victim depart would have had to upward from the offense of any conviction and reasoning through 3553(a) § for which factors explaining why is accountablе un (Relevant (B) Conduct); der greater defendant merited a term 1B1.3 of im- prisonment unusually who contemplated than that age, vulnerable due to Here, by contrast, physical condition, Guidelines. or mental Court or who is made clear that a range particularly otherwise susceptible within-Guidelines was appropriate for based 3A1.1(b)(1), on its criminal conduct.” U.S.S.G. 3553(a) analysis. Application Note that, Langford, possibility noted "imposing] avoided a sentence that would miscalculation, based on a disparities a District among people result in who might compare However, a defendant engaged others who have in like conduct.” actually higher pos- given have proper range, offense levels. That she sentence im- here, sibility reality posed became as the disparity resulted she was seek- Court indicated that the imposed sentence she to avoid.
255 ly by to him friends or argues that referred rela- Hawes victims, in regards decision tives. one of his comply to with our Doro- Court failed (3d Iannone, v. thy McKinney, F.3d 214 that United States Hawes knew she was Iannone, Cir.1999). suffering In we set forth in a home nursing from Alzheim- Third, to determine whether legally three-factor test er’s and was blind. there application of the vul conduct merits the vulnerability was a nexus between victim enhancement: nerable the victims and the continued success (1) The suscepti- his fraud. vulnerable status of Ms. particularly the victim was particular in McKinney con- made easier to ble to the criminal or vulnerable (2) duct; Specifically, knew or continue the fraud. when should or vul- Hawes’ mother had susceptibility have known of this discovered Hawes (3) vulnerability nerability; this stolen hundreds of thousands dollars $125,000 repay facilitated the and demanded that he im- susceptibility defendant’s manner; is, mediately, there Hawes the bulk of this procured crime some account, McKinney’s victim’s vul- from Ms. know- was “a nexus between the sum particular suc- nerability the crime’s ultimate her vulnerabilities made likely it more go theft would undetect- cess.” Taking money ed. this to his pay mоther (quoting at 184 F.3d prevent family to his from was meant re- Monostra, (3d Cir.1997)). 183, 190 125 F.3d porting theft and allow it to continue. Dis particular, argues find “a trict that there was Court failed We, therefore, find that the District vulnerability” between the victim’s nexus in enhancing Court did not err and the of his fraudulent scheme. 3Al.l(b) success offense level under and affirm application of the vulnerable victim en- its not cite Iannone
The District Court did hancement. en- finding the vulnerable victim Its applied. failure use hancement 2. Failure consider U.S.C. case name open court during sentencing entering order the restitution not, however, appli- indicate contends that the District cation of the enhancement wаs error. re failed to consider “the financial Indeed, supports the record defendant, the financial sources of finding quali- that Hawes’ offense Court’s defendant, ability earning needs and First, vic- fied this enhancement. for dependents, and the such defendant’s for tims of Hawes’ fraud met the standard appropri as other factors the court deems vulnerability. The District Court referred required ate” “the impact victims’ statements and 3663(a)(1)(B)(i)(II). The parties agree the Defendant personal relationship close objection raise this that Hawes failed to clients, only has of his had some We, therefore, or review the sentencing. suscep- parents, could not be more his who plain Fed. error. der restitution tible, he to other clients who but also Lloyd, 52(b); States v. R.Crim.P. who personally knew or were referred Cir.2006). (3d 319, 320 469 F.3d App. him and relatives.” friends plain no error on record “many these individu- We find It also found that plea agree- into a retired, suffering here. Hawes entered elderly, some als were Second, pursuant the government Hawes ment with App. diseases.” to the amount of vulnerability. Many parties agreed which the knew of his victims’ restitution. Second Adden- personal- known to him loss and of his clients were *11 Report computation may dum to the Presentence included a be neutralized the overarching scrutiny required by agreed-tо the sen- spreadsheet reflecting tencing application court’s was adopted amounts and 3553(a). Court when it issued the restitution order. During hearing, the Court sentencing substantively is The sentence here rea- that, exception
was informed with the sonable. The set District Court out victims, the had parties “agreed two to detail the factors affected the sen- agreed and ... what the restitution is to tence. In her remarks from the bench what the amount of to loss attributable said, hearing, judge part, each victim cur- App. is.” law I requires impose “The ability rent or to restitution pay future was sentence is sufficient to but not Although never before the District Court. greater neсessary than to fulfill the pur- required accept the Court was not to sentencing.... pose of restitution, parties’ agreement all, First nature and serious- plain accept- Court committed no error Quite ness frankly, offense. it. will therefore affirm the order We is offense awful. It’s awful. To ruin of restitution. lives, peoples’ be held trust and to betray. These are serious offenses.... 3. Reasonableness of Hawes’ sentence very offense, is a [T]his serious argues Hawes also that his sentence was just punishment is required under the unreasonable because the District Court you law. Because have done such a gave presumptive weight guidelines thing many people terrible to so you imposed greater a sentence than nec- have to be deterred and others have essary purposes to meet the of sentencing. be might deterred who consider engag- Because we find that the miscalculation of like ing in conduct. is a There need range the Guideline not protected any harmless er- be additional crimes ror, you might we cannot review sentence for commit and do that it you Langford, my provided See is belief that reasonableness. 516 F.3d at should 214-15, 220. We correctional treatment are confident that can effectively help you most give will to understand presumptive not what it is you have weight to on dоne and what the Guidelines remand as the repercussions consequences are. Supreme recently Court has made clear States, any that this starting point is error. Gall United The sentence — U.S.-,-, 586, 597, advisory range ... guideline S.Ct. (2007). which I you have indicated to L.Ed.2d 445 a level category 70-87 months.” III. Conclusion It is obvious that the in- judge district reasons, For the foregoing will va- tended to impose substantial sentence. cate Hawes’ sentence and remand explained, She “I then believe that a sen- resentencing. District Court for advisory range tence guideline within the appropriately concern all and address WEIS, Circuit Judge, concurring. of the concerns of that I sentencing hаve agree I that the identification enhance- mentioned this afternoon.” ment should have been into factored view, my ruling our that the Guide- the Guidelines calculation. lines calculation was erroneous has created advisory, Guidelines are not man- uncertainty substantial over the District datory, and an error intent in If sentencing Guidelines Court’s defendant. *12 believed, performing after judge 3553(a) a review, sen- that under
overall appropriate of 76 months was
tence regardless of whether
punishment range, came within the Guidelines
number On the be affirmed. should sentence hand, judge if the believed within the must be
appropriate sentence range, whatever Guidelines
correct be,
may not mean deviate did
it, would seem to precedents of this Court
require a remand. may have believed
The District Court under appropriate sentence 3553(a) impris- a term of 76-months and, coincidentally, concluded that
onment Guide- within the erroneous figure was ambigu- The record is cоmputation.
lines point. this
ous on advisory they can override the
Because carefully judges should district arriving at a their rationale
articulate 3553(a) calculus in under the
sentence unnecessary resentencing.
order avoid I on the us am
Because record before sentencing judge’s
unable determine
intention, join I in the order to remand. COMPANY, COAL
SEWELL
Petitioner,
DIRECTOR, OF WORKERS’ OFFICE PROGRAMS;
COMPENSATION Dempsey, Respondents.
William
No. 06-1592. Appeals,
United States Court
Fourth Circuit. 29, 2008.
Argued: Jan. 22, 2008. April
Decided: Smoot, Douglas Allan Jack-
ARGUED: Charleston, P.L.L.C., West Kelly, son & notes The application guidance. for them (II) indi- forges A defendant another provide: to signature vidual’s cash a stolen (b)(10)(C)(i) (i) In General.—Subsection another Forging check. individual’s of means case which a a applies signature producing is not another than an individual other of identification means of identification. (or person a for whose un- 9(C) accountable conduct the defendant 2B1.1. Application Note U.S.S.G. Conduct)) (Relevant with- is used der 1.3 are con- Application examples The Note unlaw- authorization out that individual’s idеn- meaning to a common sense of fined means fully produce or obtain another of tity through breeding theft new means identification. examples of when identification. (ii) Examples. Examples conduct produc- involve the applies enhancement — (b)(10)(C)(i) are applies subsection identifying infor- specific tion of a form follows: mation, improper used which is then for (I) i.e., individual’s A obtains an taking defendant another’s purposes, security from number first example, name and social one’s In the use as own. mail piece (e.g., a source the victim’s name and so- defendant uses mailbox) loan, individual’s security taken from the to obtain a cial number bank indi- loan in that and obtains a bank In the the “means of identification” bred. In this example, name. example, vidual’s the defendant uses second of the bank loan apply account number name and address victim’s card, of identification unique the other means obtain credit another unlawfully. has been obtained courts “means identification.” Where applies to guideline have held that (II) A individu- defendant obtains an examples, these contained a source and address from al’s name closely analogous the facts have been in a stolen (e.g., from a driver’s license Melendrez, See, e.g., examples. wallet) obtains, for, applies contrast, examples By F.3d at 829. card subsequently uses credit