United States v. Rhymer , 299 F. App'x 378 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 12, 2008
No. 08-10055
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CARLA LOUISE RHYMER
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CR-105-2
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Carla Louise Rhymer pleaded guilty to possession
of stolen mail in violation of 18 U.S.C. §§ 1708 and 2. Rhymer was sentenced to
57 months of imprisonment and a three-year term of supervised release.
Rhymer now appeals, challenging only her sentence. She does so on two
grounds.
First, Rhymer contends that the district court erred in determining the
intended loss amount for purposes of U.S.S.G. § 2B1.1. Specifically, Rhymer
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 08-10055
contends that the aggregate credit limit of four unused credit-card convenience
checks should not have been included. This is especially so, she asserts, because
the credit limit was not used in determining the intended loss amount related
to an unused credit card in Rhymer’s possession at the time of her arrest.
Rhymer insists that the two devices are functionally equivalent and that they
should have been treated the same.
Our decision in United States v. Sowels, 998 F.2d 249 (5th Cir. 1993), is
applicable here. In Sowels we upheld the use of the aggregate credit limit of the
unused stolen credit cards to determine the intended loss amount. Sowels, 998
F.2d at 250-52. As Rhymer was arrested before she ended or withdrew from the
offense, the fact that the checks were unused does nothing to rebut the evidence
that she intended to access the credit limits available via the unused stolen
convenience checks. See id. at 251. Under Sowels, the district court also could
have used the credit limit to determine the intended loss amount relative to the
unused credit card to which Rhymer refers. The fact that it chose not to do so,
however, does not justify or require reducing the intended loss amount relative
to the unused credit card convenience checks. The district court did not clearly
err in determining the intended loss amount for purposes of § 2B1.1. See United
States v. Messervey, 317 F.3d 457, 464 (2002).
Second, Rhymer contends that the district court improperly applied a two-
level enhancement under U.S.S.G. § 2B1.1(b)(10)(C)(i). That enhancement
applies when the offense involves “the unauthorized transfer or use of any
means of identification unlawfully to produce or obtain other means of
identification.” Id. It is undisputed that Rhymer used another woman’s
personal information to obtain a false identification card that bore Rhymer’s
photograph and a name slightly different from the name of the woman whose
information was stolen. It is also undisputed that Rhymer intended to negotiate
a third party’s check using that false identification card.
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No. 08-10055
Rhymer nevertheless asserts that § 2B1.1(b)(10)(C)(i) is inapplicable
because she obtained the woman’s personal information legally, and the
Guideline requires that the victim’s identifying information be obtained through
unlawful means. Although there is no caselaw addressing this point, the plain
text of the Guideline does not support Rhymer’s contention. As Rhymer’s use of
the woman’s personal information to obtain an identification card bearing a false
name was not authorized, the enhancement applies on its face. See
§ 2B1.1(b)(10)(C)(i) and cmt. n.9(C)(i), (ii)(I) and (II).
Rhymer further contends that § 2B1.1(b)(10)(C)(i) is inapplicable because
she did not use the false identification card in the commission of the instant
offense. The Sentencing Guidelines define the term “offense” more broadly than
does Rhymer. An offense generally includes the offense of conviction and any
relevant conduct under U.S.S.G. § 1B1.3. § 1B1.1 cmt. n.1(H). Here, Rhymer
used the false identification card in an attempt to avoid detection or
responsibility for the offense of conviction, and the false identification card was
used in connection with an ongoing series of offenses involving stolen mail.
Thus, Rhymer’s acquisition and use of the card were properly considered as
conduct relevant to the offense. See § 1B1.3(a)(1) and (2); United States v.
Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). The district court did not err in
applying the two-level enhancement pursuant to § 2B1.1(b)(10)(C)(i). See United
States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006).
AFFIRMED.
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