I.
OVERVIEW
A jury convicted appellant Mario Taylor (Taylor) of aiding and abetting the counterfeiting of United States currency and possession of counterfeit currency in violation of 18 U.S.C. § 2 and 18 U.S.C. § 472. He was sentenced to a fifty-one month jail term followed by three years of supervised release. He appeals claiming that the district court erred in interpreting the sentencing guidelines. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal under 18 U.S.C. § 3742 аnd 28 U.S.C. § 1291. We affirm. 1
II.
BACKGROUND
Taylor was indicted for possession of counterfeit Federal reserve notes, counterfeiting and aiding and abetting counterfeiting. A jury found Taylor guilty оn both the possession and aiding and abetting counts but acquitted him of counterfeiting.
At sentencing, the district court found that Taylor had “possessed or had custody over a photocopying machine involved with these crimes,” and had “obviously produced counterfeit currency.” Based on this finding, the district court raised Taylor’s offense level to fifteen pursuant to U.S.S.G. § 2B5.1(b)(2), sentencing him to the maximum penalty of fifty-one months.
Taylor now appeals claiming that the district court erred in increasing his offense level to fifteen under section 2B5.1(b)(2) on 3 grounds: (1) application note 3 to section 2B5.1 prohibits the application of subsectiоn (b)(2) where a photocopier is the means of production of the counterfeit currency; (2) the level of sophistication of production *535 was not high enough to implicate section 2B5.1(b)(2); and (3) the district court’s application of section 2B5.1(b)(2) caused disparity in sentencing.
III.
DISCUSSION
Taylor contends that the district court erred in sentencing him at an offense level of fifteen under U.S.S.G. § 2B5.1(b)(2), inasmuch as he used a photocopier to produce the counterfeit notes.
We review a district court’s application of sentencing guidelines
de novo. United States v. Uzelac,
A. Application Note 3
U.S.S.G. § 2B5.1(b)(2) рrovides that the offense level should be increased to fifteen where the defendant manufactured or produced counterfeit obligations or hаd possession, custody or control over a counterfeiting device or materials used for counterfeiting. Application Note 3 to section 2B5.1, however, states that “[subsection (b)(2) does not apply to persons who merely photocopy notes or otherwise produce items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny.”
Taylor contends that application notе 3 reflects the Sentencing Commission’s view that the use of a photocopier does not involve the level of sophistication and planning which subseсtion (b)(2) was intended to punish. Therefore, application note 3 should apply to all situations in which a photocopier is used for counterfeiting.
This сircuit has not addressed how application note 3 is to be interpreted. The Tenth Circuit did reach the issue in
United States v. Bruning,
In this case, the district court adopted the findings of the special master that $6,970 of the counterfeit currency was potentially passable. Currency that is considered to be “potentially passable” cannot be said to be “so obviously counterfeit that they arе unlikely to be accepted even if subjected to only minimal scrutiny.” U.S.S.G. § 2B5.1 cmt. note 3 (1992). Therefore, the district court did not err in enhancing Taylor’s sentence under subsection (b)(2).
B. Level of Sophistication
Taylor, noting that the defendant in Bruning used a color copier with green ink to produce counterfeit currency, argues that even under the holding in Bruning, it was error to sentence him under subsection (b)(2) because possession of a black and white office copier does not represent the level of sophistication which subsеction (b)(2) was intended to punish. Taylor relies on the background note to section 2B5.1 which states that “[pjossession of counterfeiting devices to coрy obligations (including securities) of the United States is treated as an aggravated form of counterfeiting because of the sophistication and planning invоlved in manufacturing counterfeit obligations.”
This circuit has not addressed the level of sophistication necessary to implicate subsection (b)(2), but again we find the holdings of other circuits to be persuasive. In
United States v. Castillo,
The use of a black and white office copier clearly represents a higher level of sophistication in the production of counterfeit currency than does a $20 counterfeit detector or common paper cutter. We hold that the use of a black and white copier, as opposed to a color copier with greеn ink, is not sufficient to distinguish this case from Bruning, and therefore, subsection (b)(2) was properly applied.
C. Disparity in Sentencing
Finally, Taylor contends that enhancing his sentence pursuant to subsection (b)(2) creates disparity in sentencing between himself and Robert Grow, his co-defendant. Grow entered into a plea agreement which stipulated that “[s]ection 2B5.1(b)(2) does not apply in this case, as the counterfeit notes in question were merely photocopied.” He argues that to sentence him under different standards than were used for Grow would defeat the purpose of the guidelines by creating disparity in sentencing similarly situated defendants. This argument is meritless.
We have held “that a disparity in sentencing among co-dеfendants is not, by itself, a sufficient ground for attacking an otherwise proper sentence under the guidelines.”
United States v. Hoy,
We hold that thе application of the Sentencing Guidelines by the district court was proper. Therefore, the challenge to the sentence on the basis of disрarity must fail.
IY.
CONCLUSION
The district court properly enhanced Taylor’s sentence under U.S.S.G. § 2B5.1(b)(2) based on its findings that Taylor produced counterfeit currency which was potentially passable. Furthermore, we conclude that the use of a black and white office copier represents a level of sophistication which subsection (b)(2) was intended to punish. Finally, the fact that Taylor's co-defendant’s sentence was not enhanced under subsection (b)(2) does not constitute grounds for reversal.
AFFIRMED.
Notes
. Other issues raised by Taylor are addressed in an unpublished memorandum.