*1158 OPINION
Introduction
This appeal addresses access device fraud under 18 U.S.C. § 1029 and, specifically, whether the Government must prove the usability of an expired credit card number in order for a district court to enhance a sentence. We find evidence of usability is required and vacate the sentence because the Government failed to carry its burden.
Background
In May 2009, postal agents conducted a search of Defendant-Appellant Leslie Onyesoh’s (“Defendant”) home resulting in the discovery of, among other things, stolen mail, credit cards, and a spreadsheet containing 500 expired credit card numbers. Defendant pled guilty to possession of stolen mail and access device fraud, including the knowing possession of “fifteen or more ... unauthorized access devices” with the intent to defraud. 18 U.S.C. § 1029(a)(3). An unauthorized access device is defined as “any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud.” § 1029(e)(3). Under the statute’s definition of “access device,” the device must be capable of obtaining “money, goods, services, or any other thing of value.” § 1029(e)(1).
The presentence report concluded that the 500 expired credit card numbers were unauthorized access devices and recommended a 12-level enhancement under U.S. Sentencing Guidelines § 2B1.1(b)(1)(G) for a loss greater than $200,000. The report arrived at this dollar figure because Application Note 3(F)(i) assesses a minimum loss of $500 per device. As explained in the report:
[Defendant] possessed credit cards belonging to at least 14 different account holders ($7,000), 19 credit card profiles, including credit card account numbers ($9,500), a typed spread sheet containing victim profiles and credit card account numbers of approximately 500 different individuals ($250,000), and one check for $1,096.57. Onyesoh also caused an actual loss of $43,098.92 to three victims. Considering these figures, the total loss is approximately $310,695.49. Accordingly, a 12-level increase applies.
The enhancement was the focus of the sentencing hearing, where Defendant objected to the loss calculation. Defendant conceded that expired credit cards could be unauthorized access devices, but only if their usability was also shown. The Government countered that such proof was not required and, in any event, there was “no doubt” expired credit card numbers could provide a credit history or help establish a new credit account. The district court applied the enhancement, accepting the Government’s argument that the expired credit card numbers were unauthorized access devices without requiring further proof of usability.
The additional loss calculated from the 500 expired credit card numbers increased the Guidelines range from 18-24 months to 37-46 months. Defendant was sentenced to 46 months. This appeal followed.
Jurisdiction and Standard op Review
The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. The district court’s interpretation of the criminal statute is reviewed
de novo. See United States v. Carranza,
*1159 Discussion
Usability Requirement
Our analysis begins with the language of the statute. An “unauthorized access device” must be an “access device,” which itself must be capable of obtaining “money, goods, services, or any other thing of value.” 18 U.S.C. § 1029(e)(1) and (e)(3). The statute’s language is clear and we give it full effect — unauthorized access devices are a subset of access devices, and therefore must be capable of obtaining something of value.
See TRW Inc. v. Andrews,
The statute is intended to target major fraud operations instead of individual use of “an expired or revoked card,” and the statute was written broadly in order to “encompass future technological changes.”
See
H.R.Rep. No. 98-894, at 19-20 (1984), 1984 U.S.C.C.A.N. 3689, 3705;
see also United States v. Dabbs,
No court, in this or any other circuit, has read usability out of the statute. In
United States v. Nguyen,
the defendant possessed 110 blank credit cards and was convicted of access device fraud.
On strikingly similar facts to the instant case, a district court found that expired credit card numbers were unauthorized access devices.
United States v. Jones,
In
United States v. Brewer,
a case heavily relied on by the Government, the court held long distance telephone service access codes were access devices even though many of the numbers were non-working.
We hold that unauthorized access devices must be usable. This conclusion gives effect to the entire statute and is consistent with its plain language.
Proof of Usability
Defendant’s sentence was enhanced because the district court found the expired credit card numbers in his possession were unauthorized access devices. In order for the district court to make this finding, the Government had to prove the usability of the expired credit card num *1160 bers by a preponderance of the evidence. See United States v. Cazares, 121 F.3d 1241, 1248 (9th Cir.1997) (holding a sentence enhancement was improper when the government failed to prove a fact by a preponderance).
Of course, the amount of proof necessary will depend upon the access device at issue. For some types of access devices— e.g., credit card and bank account numbers — usability may be self-evident. But while a working credit card can clearly be used to obtain value, the usability of other types of access devices may not be readily apparent.
Presented at appellate oral argument with a hypothetical of credit card numbers that had expired 35 years ago and were useless, the Government conceded such numbers would not be covered under the statute. Here, Defendant’s credit card numbers had been expired for some three years, yet the Government argued these numbers required no further proof of usability because the evidence was “overwhelming” Defendant used, or could have used, these numbers. We have carefully reviewed the record in this case and found no evidence of usability, let alone “overwhelming” evidence. There was no crossover between Defendant’s victims and the list of expired numbers, and there was no showing Defendant ever took steps or attempted to use the expired numbers, or that Defendant possessed them before their expiration.
In short, the Government needed to show some usability of these expired numbers. For example, the Government could have offered expert testimony to establish usability.
See United States v. Yellowe,
Conclusion
For an unauthorized access device whose usability is not readily apparent, such as an expired credit card number, some proof of usability is required when the defendant does not concede the fact or when the defendant challenges the enhancement. For the foregoing reasons, the sentence is vacated, and this case is remanded for further proceedings to allow the district court to hear evidence of usability.
VACATED and REMANDED.