United States v. Reginald Doss

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
REGINALD DOSS,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11-cr-00052-1 — Robert M. Dow, Jr., Judge.
ARGUED OCTOBER 30, 2013 — DECIDED DECEMBER 20, 2013
Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Reginald Doss was indicted for, and
pleaded guilty to, one count of possessing with intent to use
unlawfully or transfer unlawfully five or more identification
documents, in violation of 18 U.S.C. § 1028(a)(3); one count of
possessing, with intent to defraud, fifteen or more counterfeit
and unauthorized access devices, in violation of 18 U.S.C.
§ 1029(a)(3); and one count of aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1). The district court sen-
2 No. 13-1001
tenced Mr. Doss to seventy-eight months’ imprisonment on the
first two counts, which were grouped for sentencing purposes.
The court further sentenced him to a mandatory, consecutive
two-year sentence on count three.[1] Mr. Doss timely appealed
his sentence.[2] Although he did not raise the issue in the
district court, he now maintains that, in sentencing on the first
two counts, the district court erred in imposing a sentencing
enhancement under United States Sentencing Guideline
§ 2B1.1(b)(11)(B), which resulted in an increased sentencing
range on these grouped counts. Because we conclude that the
district court committed plain error in applying this enhance-
ment, we vacate Mr. Doss’s sentence and remand for
resentencing.
I
BACKGROUND
A. Facts[3]
Mr. Doss was the organizer of an identity-theft scheme. He
would use stolen identities to create fake identification
documents. Other individuals would purchase the fake
identification information and documents from Mr. Doss,
1
The district court had jurisdiction based on 18 U.S.C. § 3231.
2
This court has jurisdiction over the direct appeal pursuant to 28 U.S.C.
§ 1291.
3
The factual bases for Mr. Doss’s convictions were not elicited at his plea
colloquy. We therefore rely on the parties’ representation of the undisputed
facts as set forth in their briefs.
No. 13-1001 3
would obtain credit cards through the use of these materials
and then would use the credit cards to purchase goods on
Mr. Doss’s behalf. Mr. Doss then would resell the goods for
profit. Some of the profits were distributed to the individual
who had made the purchase; Mr. Doss kept the rest.
The scheme was uncovered when law enforcement officers
stopped Mr. Doss’s car on September 26, 2007. During the stop,
officers discovered that Mr. Doss possessed credit cards and
gift cards in other people’s names. He also had handwritten
notes containing the name, date of birth, Social Security
number and telephone number of another individual. The
passengers in the car similarly were in possession of false
identification. A subsequent search of an apartment in which
Mr. Doss was thought to keep his belongings uncovered
documents relating to at least forty people. These documents
included twenty-eight fake driver’s licenses, thirteen fake
Social Security cards and eighteen credit cards. Officers also
found credit reports and forms for opening credit cards. The
names on some of these documents corresponded to the names
on the false identification documents that Mr. Doss and his
passengers were carrying when they were stopped by police.
Mr. Doss again was pulled over by law enforcement
officers on December 3, 2007. At the time of this traffic stop, he
possessed a fake driver’s license, a handwritten note contain-
ing the personal information of a different individual and three
gift cards.
4 No. 13-1001
B. District Court Proceedings
A grand jury returned a three-count indictment against
Mr. Doss. Mr. Doss eventually pleaded guilty to the following
charges.
Count one charged Mr. Doss with possessing with intent to
use unlawfully or transfer unlawfully five or more identifica-
tion documents, in violation of 18 U.S.C. § 1028(a)(3). This
statute reads, in pertinent part:
(a) Whoever[] … —
…
(3) knowingly possesses with intent to use
unlawfully or transfer unlawfully five or more
identification documents (other than those
issued lawfully for the use of the possessor),
authentication features, or false identification
documents; …
shall be punished as provided in subsection (b) of
this section.
18 U.S.C. § 1028(a).
Count two charged Mr. Doss with possessing, with intent
to defraud, fifteen or more counterfeit and unauthorized access
devices, in violation of 18 U.S.C. § 1029(a)(3). This statute
reads, in pertinent part:
(a) Whoever—
…
No. 13-1001 5
(3) knowingly and with intent to defraud pos-
sesses fifteen or more devices which are counter-
feit or unauthorized access devices; …
shall, if the offense affects interstate or foreign
commerce, be punished as provided in subsection
(c) of this section.
18 U.S.C. § 1029(a).
Count three charged Mr. Doss with aggravated identity
theft, in violation of 18 U.S.C. § 1028A(a)(1). This statute reads,
in pertinent part:
(a) Offenses.—
(1) In general.—Whoever, during and in relation
to any felony violation enumerated in subsection
(c), knowingly transfers, possesses, or uses,
without lawful authority, a means of identifica-
tion of another person shall, in addition to the
punishment provided for such felony, be sen-
tenced to a term of imprisonment of 2 years.
18 U.S.C. § 1028A(a)(1).
The Presentence Investigation Report (“PSR”) grouped the
first two counts for sentencing. With respect to that group
calculation, the PSR applied the sentencing enhancement in
United States Sentencing Guideline § 2B1.1(b)(11)(B). That
guideline section provides, in relevant part: “If the offense
involved … (B) the production or trafficking of any (i) unau-
thorized access device or counterfeit access device, … increase
by 2 levels.” U.S.S.G. § 2B1.1(b)(11). Mr. Doss objected to this
increase because he had not “produce[d]” the credit cards and,
6 No. 13-1001
as he had not sold the credit cards to anyone else, he also had
not “traffick[ed]” in the credit cards.[4] Mr. Doss did not make
any other arguments against the application of
§ 2B1.1(b)(11)(B).
The district court found, and the Government agreed, that
Mr. Doss had not “produced” the credit cards. However, the
district court concluded that Mr. Doss had trafficked in the
credit cards
in the sense that he is profiting from providing all
the information [his confederates] need to get the
credit card. He could have done it himself except he
is a little more clever than that, and generally, the
person who sets it up and hires the henchman is the
clever one who doesn’t actually go in there and get
seen on the video camera, for example, perpetrating
the fraud. He is the guy who stays in the car.
But that doesn’t make it any less trafficking in my
reading of how to apply that Guideline.[5]
The district court therefore adopted the offense level calcula-
tion set forth in the PSR, including the two-level increase
pursuant to § 2B1.1(b)(11)(B).
The calculated offense level of nineteen corresponded to a
sentencing range of sixty-three to seventy-eight months. The
district court sentenced Mr. Doss to seventy-eight months’
imprisonment on counts one and two. If the district court had
4
R.73 at 11–12.
5
Id. at 26–27.
No. 13-1001 7
not applied the two-level increase, the resulting sentencing
range would have been fifty-one to sixty-three months.
With respect to count three—aggravated identity theft—the
PSR noted that it carried a statutory penalty of two years’
imprisonment, which had to run consecutively to any other
term of imprisonment. The district court accordingly imposed
a consecutive two-year term of imprisonment on count three.
Mr. Doss timely appealed his sentence.
II
ANALYSIS
Mr. Doss now argues, for the first time, that Application
Note 2 to United States Sentencing Guideline § 2B1.6 precluded
the district court from applying the two-level enhancement set
forth in § 2B1.1(b)(11)(B) for “trafficking of any … unautho-
rized access device or counterfeit access device.” Mr. Doss did
not raise this issue before the district court; our review is
therefore for plain error. We shall “reverse the determination
of a district court only when we find: (1) an error or defect (2)
that is clear or obvious (3) affecting the defendant’s substantial
rights (4) and seriously impugning the fairness, integrity, or
public reputation of judicial proceedings.” United States v.
Anderson, 604 F.3d 997, 1002 (7th Cir. 2010) (citing United States
v. Olano, 507 U.S. 725, 736 (1993)).[6]
6
In his brief, Mr. Doss asserts that “the appropriate standard of review is
de novo.” Appellant’s Br. 11. We apply plain error review, however, to
(continued...)
8 No. 13-1001
Guideline § 2B1.6 governs violations of 18 U.S.C. § 1028A
(count three). It provides that, “[i]f the defendant was con-
victed of violating 18 U.S.C. § 1028A, the guidelines sentence
is the term of imprisonment required by statute”—a two-year
sentence to run consecutively to the sentence for the underly-
ing offense. U.S.S.G. § 2B1.6. Application Note 2 also sets forth
how § 2B1.6 interacts with other guidelines; it provides:
Inapplicability of Chapter Two Enhancement.—If a
sentence under this guideline is imposed in conjunc-
tion with a sentence for an underlying offense, do
not apply any specific offense characteristic for the
transfer, possession, or use of a means of identifica-
tion when determining the sentence for the underly-
ing offense. A sentence under this guideline ac-
counts for this factor for the underlying offense of
conviction, including any such enhancement that
would apply based on conduct for which the defen-
dant is accountable under § 1B1.3 (Relevant Con-
duct). “Means of identification” has the meaning
given that term in 18 U.S.C. § 1028(d)(7).
U.S.S.G. § 2B1.6 cmt. n.2. If, therefore, Mr. Doss’s “trafficking
of any … unauthorized access device or counterfeit access
device,” U.S.S.G. § 2B1.1(b)(11)(B), as found by the district
court, also constitutes “the transfer[] … of a means of identifi-
6
(...continued)
sentencing arguments that were not made before the district court. See, e.g.,
United States v. Walsh, 723 F.3d 802, 810–11 (7th Cir. 2013) (applying plain
error review to a defendant’s claim, made for the first time on appeal, that
the district court had erred in applying a specific sentencing enhancement).
No. 13-1001 9
cation” under Application Note 2 to § 2B1.6, the district court
should not have applied the two-level enhancement under
§ 2B1.1(b)(11)(B).
To determine whether Application Note 2 precludes the
enhancement applied here, we begin with the term “[m]eans
of identification” in the text. According to Application Note 2,
“‘[m]eans of identification’ has the meaning given that term in
18 U.S.C. § 1028(d)(7).” U.S.S.G. § 2B1.6 cmt. n.2. Turning to
that statute, 18 U.S.C. § 1028(d)(7) provides:
(7) the term “means of identification” means any
name or number that may be used, alone or in
conjunction with any other information, to identify
a specific individual, including any—
(A) name, social security number, date of birth, official
State or government issued driver’s license or identifi-
cation number, alien registration number, govern-
ment passport number, employer or taxpayer
identification number;
(B) unique biometric data, such as fingerprint,
voice print, retina or iris image, or other unique
physical representation;
(C) unique electronic identification number,
address, or routing code; or
(D) telecommunication identifying information or
access device … [.]
18 U.S.C. § 1028(d)(7) (emphasis added).
10 No. 13-1001
As we have noted earlier, the district court applied the
enhancement under § 2B1.1(b)(11)(B) because Mr. Doss had
provided his cohorts with personal identification information,
such as Social Security numbers and driver’s licenses, from
which he ultimately derived a profit. Such information falls
squarely within the definition of “[m]eans of identification” for
purposes of the application note to § 2B1.6.[7]
Moreover, Mr. Doss’s “trafficking” in those devices (as
required for the enhancement under § 2B1.1(b)(11)(B)) consti-
tuted a “transfer” for purposes of Application Note 2 to
§ 2B1.6. The district court found that Mr. Doss qualified for the
trafficking enhancement under § 2B1.1(b)(11)(B) because he
had transferred information to those working for him so that
they could obtain credit cards to purchase goods. The district
court’s understanding of “trafficking” is supported by the
statutory definition. Section 1029(e)(5) of Title 18[8] provides
that “‘traffic’ means transfer, or otherwise dispose of, to
another, or obtain control of with intent to transfer or dispose
of.” (emphasis added). Additionally, the two courts of appeals
that have addressed the issue also have concluded that
trafficking necessarily involves a transfer for purposes of
§ 2B1.6. See United States v. Lyons, 556 F.3d 703, 708 (8th Cir.
2009) (holding that, “[g]iven that the plain meaning of traffick-
7
We also note that “[m]eans of identification” specifically includes “access
device,” a necessary element for the enhancement under § 2B1.1(b)(11)(B).
8
Mr. Doss’s conviction on count two was for a violation of 18 U.S.C.
§ 1029(a)(3), and subsection (e) provides the definitions for the offenses set
forth in that section.
No. 13-1001 11
ing involves a transfer, the enhancement in §
2B1.1(b)(10)(B)(i)[9] for trafficking of an unauthorized access
device is one such specific offense characteristic that cannot be
applied” under Application Note 2 to § 2B1.6); United States v.
Jones, 551 F.3d 19, 25 (1st Cir. 2008) (“Considering the plain
meaning of the words, we conclude that Jones’ trafficking of a
means of identification involved a transfer (though the reverse
is not necessarily true).”).
Here Application Note 2 to § 2B1.6 precluded the increase
under § 2B1.1(b)(11)(B) for trafficking in unauthorized access
devices because, at least under the facts presented here, that
trafficking constituted a “transfer[] … of a means of identifica-
tion.” The district court, therefore, erred in applying the
enhancement under § 2B1.1.
As noted previously, however, Mr. Doss failed to raise this
issue before the district court and therefore must satisfy the
plain error standard in order to obtain relief. The Government
concedes that the district court’s error meets this standard, and
we agree. The district court’s error here is “plain.” Mr. Doss’s
actions, for which the court applied the increase under
§ 2B1.1(b)(11)(B), clearly fall within the purview of the applica-
tion note. Additionally, the error affected Mr. Doss’s substan-
tial rights because it increased his guidelines range: Without
the enhancement, Mr. Doss’s range would have been fifty-one
to sixty-three months; with the enhancement, Mr. Doss’s range
was sixty-three to seventy-eight months. See United States v.
9
Section 2B1.1(b)(10)(B)(i) was renumbered § 2B1.1(b)(11)(B)(i) in the 2011
Guidelines.
12 No. 13-1001
Johns, 732 F.3d 736, 740 (7th Cir. 2013) (“The misapplication of
the enhancement increased the offense level and resulted in an
improper guidelines range, which affected Johns’s substantial
rights.”). Finally, “we elect to exercise our discretion to correct
the error because we believe the error impacted the fairness of
the proceedings.” United States v. Jaimes-Jaimes, 406 F.3d 845,
851 (7th Cir. 2005). As we noted in Jaimes-Jaimes, Mr. Doss
“may have failed to notice the sentencing error, but so did
defense counsel, the Assistant United States Attorney, the
probation officer, and the district court judge, and we conclude
that it would be unjust to place the entire burden for these
oversights on [him] by permitting him to serve an excessive
prison sentence.” Id. Mr. Doss, therefore, has met the require-
ments for plain error. His sentence must be vacated and the
case remanded for resentencing.
Conclusion
For the reasons set forth above, we vacate the district
court’s sentence and remand for resentencing consistent with
this opinion.
SENTENCE VACATED; REMANDED