11th Circuit, Like Many 1Ls, Runs to Black's To Understand USSC Guidelines
Erica Hall worked in a health care office in Florida. Though her day job was as an office assistant, her side gig was stealing identifying information and passing that on to her lovely coconspirators. For her valiant efforts, she was to receive $200 per identifying information stolen and $1,000 if the information was successfully used to create a fraudulent account.
Alas, there is no honor amongst thieves. She only received $200 total, despite passing along an estimated 141 individuals’ information, 12 of which ended up being used for malicious purposes.
When she was sentenced under § 2B1.1(b)(2)(B), the probation officer preparing the sentence report and the district court each took the position that there were 141 victims for purposes of sentencing enhancements. She maintains that since only 12 individuals' identities were actually used, there were only 12 victims.
The district court gave her a four-level enhancement (though they departed downward due to her background, family situation, etc.) whereas Hall asked for a two-level enhancement. The two-level enhancement applies when there are ten or more victims. The four level is for between 50 and 250 victims.
Commence the statutory interpretation.
What's a "victim" per § 2B1.1(b)(2)(B)? (Sidebar: We need a better naming system. 2B11B2B? Really? It sounds like a millennial boy band.)
This is a novel question for the 11th Circuit. Only two other circuits have addressed the matter and their cases were too different to be helpful. Application Note 4(E) defines victim in two ways:
- As defined in Application Note 1
- Any person who sustained any part of the actual loss;
- Any individual who sustained bodily injury as a result of the offense.
- Any individual whose means of identification was used unlawfully or without authority.
So, other than the twelve undisputed victims, we have more than a hundred people who had their information handed off, but not exploited for financial gain. That fails under the first provision (actual loss or bodily injury).
So what does "used" mean in the second provision? Black's Law Dictionary says "application or employment of something ... for the purpose for which it is adapted." Conversely, transfer is "to convey or remove from one place or one person to another" and "to sell or give."
Why did they steal the information? To make money via fake accounts. It is not "used" until it has been utilized to make fake accounts. Passing or selling between co-conspirators is transferring, per Black's.
Furthermore, later in the guidelines, the Commission uses "transfer." According to the court, the use of both words indicates that they "intended each term to have a particular, nonsuperfluous meaning."
Because the plain language of the statute indicates that a victim only becomes such when their information is used, and that information is only used when it is utilized for creating fake accounts instead of merely transferred between crooks, Hall should have only received a two level enhancement. Her case was remanded for resentencing.
- United States of America v. Erica Hall (Eleventh Circuit Court of Appeals)
- 11th Circuit: Defendant May Be Sentenced Without Indictment (FindLaw's Eleventh Circuit Blog)
- Eleventh Circuit: Vehicle Flight a "Violent Felony" Under the ACCA (FindLaw's Eleventh Circuit Blog)