United States Court of Appeals

For the First Circuit

No. 19-1325

UNITED STATES OF AMERICA,

Appellee,

v.

KIMBERLY KITTS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge] 

Before

Lynch, Lipez, and Thompson, 

Circuit Judges.

Vivian Shevitz for appellant.

Sara Miron Bloom, Assistant United States Attorney, with whom 

Andrew E. Lelling, United States Attorney, was on brief, for 

appellee. 

March 3, 2022
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LIPEZ, Circuit Judge. Appellant Kimberly Kitts, an 

investment adviser, pleaded guilty to one count of investment 

adviser fraud, four counts of wire fraud, and one count of 

aggravated identity theft. On appeal, Kitts argues that her plea 

was not knowing and voluntary, that her conduct, as described at 

the change-of-plea hearing, did not constitute wire fraud and 

aggravated identity theft, that several sentencing enhancements 

were improperly applied, and that her counsel was ineffective. 

Hence, she asks that her guilty plea, the judgment of conviction, 

and the sentence relating thereto all be vacated. If those 

contentions are rejected, Kitts argues that her sentence should at 

least be reduced from eighty-seven to eighty-four months to accord 

with the district court's oral ruling. We affirm. 

I.

Kitts's arguments on appeal primarily target her changeof-plea hearing and sentencing, and we therefore only briefly 

recount the facts concerning her criminal activity before 

describing those two proceedings. Because Kitts pleaded guilty, 

"we draw the essential facts from the change-of-plea colloquy and 

the uncontroverted portions of the presentence investigation 

report." United States v. Jimenez, 512 F.3d 1, 2 (1st Cir. 2007).

Kitts worked as an investment adviser at Royal Alliance, 

a financial services firm in Massachusetts. She also operated a 

"purported financial consulting" company named Marquis Consulting, 
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LLC. In approximately 2011, she began misappropriating client 

funds by directing her clients' money into an account (the "Marquis 

Consulting Account"), which she used to pay personal expenses. 

From 2011 through mid-2017, Kitts appropriated approximately 

$3,454,138, primarily from three clients (referred to as Clients 

A, B, and C),1 before her conduct was discovered.

In an information filed in September 2018, Kitts was 

charged with investment adviser fraud in violation of 15 U.S.C. 

§§ 80b-6 and 80b-17 (Count One), wire fraud in violation of 18 

U.S.C. § 1343 (Counts Two through Five), and aggravated identity 

theft in violation of 18 U.S.C. § 1028A (Count Six). Although

Kitts initially pleaded not guilty to all counts, she subsequently 

entered a guilty plea, without a plea agreement, and waived 

indictment. 

Throughout the proceedings in the district court, Kitts 

was represented by attorney Michael Mattson, who had previously 

represented Kitts in "local matters." According to Kitts, Mattson

had no prior experience in federal criminal matters. 

A. The Change-of-Plea Hearing

At the outset of her change-of-plea hearing, the 

district court confirmed with Kitts that she was in an appropriate 

mental state to participate in the proceeding. The court then 

1 The Presentence Report primarily focuses on Clients A, B,

and C, but Kitts had seven total victims.
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asked whether she had received a copy of the information, 

understood that she was charged with six counts, and had an 

opportunity to discuss the charges with counsel. Kitts answered 

yes to these questions. 

The court advised her that, by pleading guilty, she would 

be waiving her constitutional right to be indicted by a grand jury. 

Again, Kitts confirmed that she understood. In response to another 

inquiry from the court, Kitts stated that she had discussed the 

waiver with her attorney. Neither party raised any objections 

during this portion of the proceeding.

The district court then proceeded with the plea 

colloquy. Kitts affirmed that she was neither forced to plead 

guilty nor had she received any assurances that induced her to 

plead guilty. Then, as directed by the court, the government 

detailed the maximum statutory penalties applicable to the 

charges. In relevant part, the government explained that the 

aggravated identity theft charge carried a "mandatory term of 

incarceration of two years, which shall not be concurrent with any 

other term of imprisonment imposed under any other provision of 

law." The government also reported the maximum five-year sentence 

for investment adviser fraud and the maximum twenty-year sentences

that accompanied the wire fraud counts. 

When asked if she understood that the district court had 

the authority to impose a term of imprisonment of up to five years 
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on Count One, charging investment adviser fraud; up to twenty years 

on Counts Two through Five, the wire fraud counts; and a "minimum 

mandatory sentence of two years" on the identity theft charge,

Kitts said yes. Noting that Kitts was upset, the district court 

confirmed that she still understood the court's questions.

After informing Kitts of the role of the sentencing 

guidelines in the court's sentencing decision, the court explained 

the rights she would forfeit by pleading guilty, including the 

right to a trial by jury, the right to a trial in which she would 

have been presumed innocent, the right to assistance of counsel in 

her defense during the trial, and the right to confront the 

witnesses against her. The court then asked the government to 

summarize the facts that would have been offered at trial. Kitts 

agreed with the prosecutor's summary of the facts as they related

to the essential elements of the charges, although she disputed 

the exact monetary amounts involved. 

The district court then accepted Kitts's guilty plea, 

finding that it was knowing and voluntary, and that she understood 

the charges against her and the consequences of her plea. 

B. Sentencing

The Presentence Report ("PSR") calculated a total 

offense level of twenty-eight for Counts One through Five and a 

criminal history category of I, corresponding to a guideline 

sentencing range of seventy-eight to ninety-seven months. That 
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calculation began with a base offense level of seven, which was 

increased by sixteen levels to reflect losses of more than $1.5 

million but less than $3.5 million attributable to her crimes. 

See U.S.S.G. § 2B1.1(b)(1). The offense level was further 

increased by a two-point enhancement for the victims' substantial 

financial hardship, a two-point enhancement for sophisticated 

means, and a four-point enhancement "because the offense involved 

a violation of securities law and . . . the defendant was an 

investment adviser, or a person associated with an investment 

adviser." See U.S.S.G. § 2B1.1(b)(2)(A)(iii), (b)(10)(c), 

(b)(20)(A). The offense level was then decreased by three to 

credit Kitts's acceptance of responsibility. See

U.S.S.G. § 3E1.1(a), (b). For the sixth count -- aggravated 

identity theft -- the PSR reported the mandatory, consecutive twoyear sentence. Thus, the total guideline range was 102 to 121

months.2

Kitts's attorney, Mattson, lodged several objections to 

the PSR, including an objection to the application of the 

sophisticated means enhancement. Although he did not submit a 

2 The guideline range of seventy-eight to ninety-seven months 

refers only to Counts One through Five. As to Count Six, "the 

guideline sentence is the term of imprisonment required by 

statute," U.S.S.G. § 2B1.6(a), which, here, was two years 

consecutive to the sentence on the other charges. As the court 

explained during sentencing, this scheme led to a total guideline 

sentencing range of 102 to 121 months.
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sentencing memorandum before the sentencing hearing, Mattson did 

provide additional documentation at the hearing, including medical 

records,3 documentation that Kitts had surrendered her passport, 

and at least one letter in support of Kitts. Mattson also raised 

an objection at the hearing to the application of the substantial 

financial hardship enhancement. In addition, two victims made 

oral statements at the sentencing hearing.

The district court overruled Kitts's objections and 

orally imposed a sentence of eighty-seven months, three years of 

supervised release, and restitution in the amount of $3,085,939. 

The eighty-seven-month sentence included sixty-three months for 

Counts One through Five and the consecutive two years for the 

aggravated identity theft count. The sentence imposed was thus a 

substantial downward variance from the guideline range of 102 to 

121 months for all six counts.

II.

As noted, Kitts challenges on appeal the validity of her 

guilty plea, the judgment of conviction, and her sentence. We 

start our analysis with her ineffective assistance of counsel 

claim.

3 Kitts suffered from cancer beginning in 2011. As of 2016, 

she was in remission. She also had been diagnosed with Crohn's 

disease. The court considered Kitts's medical conditions, as well 

as the fact that she was caring for her mother, in imposing its 

sentence.
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A. Ineffective Assistance of Counsel

Generally, "[w]e have held with a regularity bordering 

on the monotonous that fact-specific claims of ineffective 

assistance cannot make their debut on direct review of criminal 

convictions, but, rather, must originally be presented to, and 

acted upon by, the trial court" in post-conviction proceedings. 

United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993). On 

direct appeal of an ineffective assistance of counsel claim, we 

have three options: "(1) decline to hear the claim, permitting the 

appellant to raise the issue as part of a subsequent § 2255 

petition; (2) remand the claim to the district court for necessary 

fact-finding; or (3) decide the claim on the record before us." 

United States v. Colón-Torres, 382 F.3d 76, 85 (1st Cir. 2004) 

(quoting United States v. Leone, 215 F.3d 253, 256 (2d Cir. 2000)). 

Ordinarily, we will only reach the merits if the factual record is 

sufficiently developed to allow consideration of the claim or 

remand for further factual development if there are significant 

indicia of ineffectiveness in the record. See id. On this record, 

we find no basis for departing from our usual practice of requiring 

that the claim be first raised in post-conviction proceedings. 

Hence, we dismiss Kitts's ineffective assistance of counsel claim 

without prejudice.
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B. The Guilty Plea

When a defendant pleads guilty, she "effectively waives 

several constitutional rights. For that waiver to be valid, due 

process requires that the plea amount to a voluntary and 

'intentional relinquishment . . . of a known right.'" United 

States v Cotal-Crespo, 47 F.3d 1, 4 (1st Cir. 1995) (quoting 

McCarthy v. United States, 394 U.S. 459, 466 (1969)). The entry

of a guilty plea is governed by Federal Rule of Criminal Procedure 

11, which was designed "to ensure that a defendant who pleads 

guilty does so with full comprehension of the specific attributes 

of the charge and the possible consequences of the plea." United 

States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997). We have 

explained that our review of a challenge to a guilty plea is 

animated by the "core concerns" of Rule 11: "(1) absence of 

coercion, (2) understanding of the charges, and (3) knowledge of 

the consequences of the plea." United States v. Pimentel, 539 

F.3d 26, 29 (1st Cir. 2008) (quoting United States v. RodríguezLeón, 402 F.3d 17, 24 (1st Cir. 2005)). "Rule 11 also requires 

the district court to determine whether there is a factual basis 

for a guilty plea." Id.

Kitts challenges the validity of her guilty plea on three

grounds: (1) that she did not understand the full consequences of 

her plea, (2) that she did not understand the nature of the 

charges, and (3) that the government provided an inadequate factual 
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basis for the wire fraud and aggravated identity theft charges at 

the change-of-plea hearing. These arguments are raised for the 

first time on appeal. Hence, they are subject to plain error 

review. United States v. Borrero-Acevedo, 533 F.3d 11, 15 (1st 

Cir. 2008). To establish plain error, Kitts must demonstrate that 

(1) an error occurred; (2) the error was "clear or obvious"; (3) 

the error affected her substantial rights; and (4) the error 

"seriously affect[ed] the fairness, integrity or public reputation 

of [the] judicial proceedings." Puckett v. United States, 556 

U.S. 129, 135 (2009) (quoting United States v. Olano, 507 U.S. 

725, 736 (1993)); see also United States v. Rabb, 5 F.4th 95, 101 

(1st Cir. 2021). For the reasons given below, we find no error in 

the district court's acceptance of Kitts's guilty plea.

1. The Alleged Failure to Inform Kitts of the 

Consecutive Sentence

Kitts contends that her plea was invalid because she was 

not informed of the mandatory, consecutive two-year sentence that 

attached to the aggravated identity theft count. At the changeof-plea hearing, the district court asked the government to state 

the maximum statutory penalties that applied to Kitts. The 

prosecutor recited as follows:

With respect to investment adviser fraud in 

violation of 15, United States Code, Section 80b, 

incarceration for five years; supervised release for 

three years; a fine of $250,000 or twice the gross gain 

or loss, whichever is greater; a mandatory special 
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assessment of $100; restitution; and forfeiture to the 

extent charged in the information.

With respect to wire fraud in violation of 18, 

United States Code, Section 1343, incarceration for 20 

years, a five-year term of supervised release, and the 

same fine and restitution and forfeiture and special 

assessment I just mentioned.

With respect to aggravated identity theft in 

violation of 18, United States Code, 1028A, mandatory 

term of incarceration of two years, which shall not be 

concurrent with any other term of imprisonment imposed 

under any other provision of law; one year of supervised 

release; a special assessment of $100 per count; 

restitution; and forfeiture to the extent charged in the 

information.

(Emphasis added).

The court then asked Kitts if she understood

that as to each of the counts I have the authority to 

give you a term of imprisonment of[,] on Count One, the 

investment adviser fraud, of up to five years; on Counts 

Two through Five, the wire fraud counts, up to 20 years; 

and as to the identity theft charge, a minimum mandatory 

sentence of two years?

Kitts replied in the affirmative. Thereafter, the district court 

again referred to the "minimum mandatory sentence of two years on 

Count Six" when explaining the role of the sentencing guidelines.

Kitts was thus expressly told by the prosecutor that 

the sentence attached to Count Six was both mandatory and 

consecutive. As we have previously held, the fact that the maximum 

possible penalties are communicated to the defendant by the 

prosecutor, rather than the court, is not an error. See United 

States v. Yazbeck, 524 F.2d 641, 643 (1st Cir. 1975) (per curiam) 

("To satisfy [Rule 11], the record must show that the defendant 
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was personally advised of the sentence provided by law . . . . 

This does not mean that a judge may never rely on the prosecutor 

. . . to state in open court the relevant statutory provision or 

to conduct portions of the required inquiry." (citations 

omitted)); see also United States v. Raineri, 42 F.3d 36, 40 (1st 

Cir. 1994) (noting that "district judges often rely heavily . . . 

on the prosecutor to provide the court with a description of 

statutory penalties").4 There was no error here.

2. The Alleged Failure to Inform Kitts of Elements of 

the Charges 

Kitts argues that her guilty plea was deficient because 

she was not adequately informed of the elements of the wire fraud 

and aggravated identity theft charges.5 This claim is belied by 

the record. 

4 Kitts also claims that she was not informed that she "would 

be responsible in all cases for 'losses' not in fact suffered by 

[her] investor-clients." Presumably, Kitts refers to the fact 

that her clients would be reimbursed by an insurance policy. It 

is evident from the record, however, that Kitts was informed 

several times that the charges carried the possibility of 

restitution and that, in response to inquiry from the district 

court, Kitts averred that she understood that prospect. Moreover, 

the law on this point is unmistakable. See 18 U.S.C. 

§ 3664(f)(1)(B) ("In no case shall the fact that a victim has 

received or is entitled to receive compensation with respect to a 

loss from insurance or any other source be considered in 

determining the amount of restitution."). 

5 It is unclear if Kitts also intends this argument as a 

challenge to the information or as part of her ineffective 

assistance of counsel theory. Any challenge to the information 

has been waived. We have held "with monotonous regularity that an 

unconditional guilty plea effectuates a waiver of any and all 

independent non-jurisdictional lapses." United States v. Cordero, 
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Under Rule 11, the court must "ensure that the defendant 

understands 'the nature of each charge' to which [she] is pleading 

guilty." United States v. Cruz-Rivera, 357 F.3d 10, 13 (1st Cir. 

2004) (quoting Fed. R. Crim. P. 11(b)(1)(G)). In certain 

circumstances, the reading of the indictment may be sufficient to 

fulfill this obligation. Id. During the plea colloquy, the 

district court recited the list of counts charged in the 

information, stating the count number, statutory section, and 

nature of the charge, and asked whether Kitts understood the 

charges against her. She stated that she did. In addition, the 

district court ascertained that Kitts had received a copy of the 

information and had an opportunity to discuss the charges with her 

attorney. The information itself contains the statutory language 

setting forth the elements of the wire fraud and aggravated 

identity theft charges and a statement of the relevant facts:

On or about the dates below, in the District of 

Massachusetts and elsewhere, the defendant, [Kimberly 

Kitts], having devised and intending to devise a scheme 

and artifice to defraud, and for obtaining money and 

property by means of materially false and fraudulent 

pretenses, representations and promises, did transmit 

and cause to be transmitted by means of wire 

communication in interstate commerce, writings, signs, 

signals, pictures, and sounds, for the purpose of 

executing the scheme and artifice, as follows:

42 F.3d 697, 699 (1st Cir. 1994). Such a waiver includes alleged 

defects in the information. See United States v. Urbina-Robles, 

817 F.3d 838, 842 (1st Cir. 2016). As we have already addressed 

Kitts's ineffective assistance of counsel claim, we address this 

argument under Rule 11 only. 
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Count 

No.

Date (on 

or about)

From To Item

2 6/25/2013 Financial 

Consulting 

Firm 

Account, 

NJ

Marquis 

Acct, TD 

Bank, MA

Wire transfer of 

$75,000 from account 

of Client A to 

Marquis Consulting 

Account

3 7/2/2013 Financial 

Consulting 

Firm 

Account, 

NJ

Marquis 

Acct, TD 

Bank, MA

Wire transfer of 

$87,500 from account 

of Client A to 

Marquis Consulting 

Account

4 10/4/2013 Financial 

Consulting 

Firm 

Account, 

NJ

Marquis 

Acct, TD 

Bank, MA

Wire transfer of 

$50,000 from account 

of Client A to 

Marquis Consulting 

Account

5 5/22/2017 Financial 

Consulting 

Firm 

Account, 

NJ

Marquis 

Acct, TD 

Bank, MA

Wire transfer of 

$125,000 from 

account of Clients B 

and C to Marquis 

Consulting Account

. . . 

On or about May 22, 2017, in the District of 

Massachusetts and elsewhere, the defendant, [Kimberly 

Kitts], did knowingly possess and use, without lawful 

authority, a means of identification of another person, 

to wit, the name[] and brokerage account number of 

Client[] B, during and in relation to the crime of wire 

fraud . . . .

The terms of the information are clear, the court 

satisfied itself that Kitts was competent to plead, Kitts confirmed 

that she had an opportunity to discuss the charges with her 

attorney, and, after hearing the charges against her, Kitts stated 

that she understood them. In these circumstances, we reject 

Kitts's claim that she was not adequately informed of the elements 
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of the wire fraud and aggravated identity theft charges. See

United States v. Ramirez-Benitez, 292 F.3d 22, 27 (1st Cir. 2002) 

(finding no error where "[t]he terms of the indictment alone 

sufficed to put [defendant] on notice of the charge . . . . 

[Defendant] admitted he understood the charge and the court found 

him competent to plead"); see also United States v. DíazConcepción, 860 F.3d 32, 36-37 (1st Cir. 2017) (holding that the 

fact that the district court did not explain a specific element of 

the charged crime was not an error in violation of Rule 11). 

3. The Factual Sufficiency of the Charges

Kitts asserts that her conduct, as described at the 

change-of-plea hearing, "arguably . . . did not violate" 18 U.S.C. 

§ 1343 (wire fraud) and 18 U.S.C. § 1028A (aggravated identity 

theft), and hence the court should not have accepted her plea. We 

disagree.

a. Wire Fraud

Kitts argues that the theft charged in Count Five was 

complete when she received the $125,000 check from her clients'

account6 and, therefore, the fact that she subsequently initiated 

an interstate wire transfer to deposit the check does not amount 

to wire fraud.7 To prove wire fraud, the government must "show 

6 This was a joint account of Clients B and C. 

7 Kitts purports to offer a similar argument about Counts Two, 

Three, and Four, but she develops the argument only with respect 

to Count Five. Accordingly, we focus only on those facts 
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. . . [defendant's] knowing and willful participation in a scheme 

to defraud and the use of interstate wires to further that scheme." 

United States v. Tum, 707 F.3d 68, 72 (1st Cir. 2013). 

In support of her theory that her conduct did not amount 

to wire fraud, Kitts relies on Kann v. United States, 323 U.S. 88 

(1944), in which the Supreme Court overturned a conviction for 

mail fraud after concluding that "[i]t cannot be said that the 

mailings in question were for the purpose of executing the scheme." 

Kann, 323 U.S. at 94. In that case, the defendants had cashed 

several checks at banks different from the drawee banks, triggering

the depository banks (those that had cashed the checks) to mail

the checks to those drawee banks to collect the funds. Id. at 90-

92. The mailings between the banks were the basis for the mail 

fraud charge. Id. at 90-91. The Court rejected this theory of

mail fraud, explaining that the mailings at issue occurred after 

"[t]he persons intended to receive the money had received it 

irrevocably. . . . It was immaterial to them, or to any 

consummation of the scheme, how the bank which paid or credited 

the check would collect from the drawee bank." Id. at 94. 

Here, as the government notes, "[t]he interstate wiring 

of $125,000 . . . was an integral part of the fraudulent scheme 

. . . as the fraud was not complete until at least when Kitts 

underlying Count Five. See, e.g., Rodríguez v. Mun. of San Juan, 

659 F.3d 168, 175 (1st Cir. 2011). 
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received the stolen funds into her own Marquis Consulting account." 

Kitts's conduct, as recounted at the change-of-plea hearing,

clearly satisfied the statutory requirements for wire fraud.

b. Aggravated Identity Theft

The aggravated identity theft statute requires that 

Kitts, "during and in relation to a felony violation enumerated in 

subsection (c), knowingly transfer[red], possesse[d], or use[d], 

without lawful authority, a means of identification of another 

person." 18 U.S.C. § 1028A(a)(1). The list of felonies in 

subsection (c) includes "any provision in chapter 63 (relating to 

mail, bank, and wire fraud)." Id. at § 1028A(c)(5). Although the 

broader identity theft statute proscribes the same type of identity 

theft, that is, "knowingly transfer[ing], possesses[ing], or 

us[ing], without lawful authority, a means of identification of 

another person," id. at § 1028(a)(7), that statute only requires 

that the identity theft be "in connection with[] any unlawful 

activity that constitutes a violation of Federal law, or that 

constitutes a felony under any applicable State or local law," id. 

Therefore, the charge of aggravated identity theft, in contrast to 

simple identity theft, applies when the theft is connected to a 

specific felony from the statutory list in subsection (c). 

Given that we have already rejected Kitts's claim that 

her conduct did not constitute wire fraud, a crime listed in 

subsection (c), the key inquiry here is whether Kitts "knowingly 
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transfer[red], possesse[d], or use[d], without lawful authority, 

a means of identification of" one of her clients. Id. at 

§ 1028A(a)(1) (emphasis added). Kitts argues that, as she had 

signing authority for her clients, her use of her client's 

signature cannot constitute identity theft.

We confronted a similar argument in United States v. 

Ozuna-Cabrera, 663 F.3d 496, 497-99 (1st Cir. 2011), where we 

considered the requirements of aggravated identity theft in 

relation to a defendant who had purchased a passport and social 

security card and attempted to use them to apply for a new 

passport. Ozuna-Cabrera claimed that, because he had purchased 

the "means of identification" from a willing seller, he was not 

using it "without lawful authority." Id. at 498. We rejected 

that argument, concluding that "Congress intended § 1028A to 

address a wide array of identity crimes, and not only those 

iterations involving conventional theft." Id. at 500. 

Significantly, we explained that "regardless of how the means of 

identification is actually obtained, if its subsequent use breaks 

the law . . . it is violative of § 1028A(a)(1)." Id. at 499. 

In light of our holding in Ozuna-Cabrera, Kitts's 

conduct clearly constituted aggravated identity theft. The basis 

for the aggravated identity theft charge is the $125,000 theft 
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from Clients B and C.8 Kitts used Client B's name and account 

number to request a $125,000 check from Clients B and C's brokerage 

account, payable to her own account. She then deposited these 

funds into her Marquis Consulting Account, which she used to pay 

her personal expenses -- conduct well beyond any lawful authority 

given to her by her clients to use their accounts. Thus, her 

challenge to the factual basis for her plea to the aggravated 

identity theft charge fails.9

C. Sentencing 

Kitts challenges several aspects of her sentence.

1. Loss Calculation

Kitts contends that the loss figure calculated in the 

PSR overstated her culpability -- an error she did not raise in 

8 Kitts also argues that she should have been charged with 

simple identity theft, rather than aggravated identity theft, 

under § 1028(a)(7). She contends that the "scheme to defraud" was 

actually investment adviser fraud, not wire fraud. But, the 

information plainly specifies that the aggravated identity theft 

count is tied to a specific instance of wire fraud charged as Count 

Five. 

9 In connection with the aggravated identity theft charge, 

Kitts alludes in her briefing to a proportionality argument, 

claiming that the prosecutor "unfairly 'upped the ante'" by 

charging wire fraud as a predicate for aggravated identity theft, 

which comes with a mandatory, two-year consecutive sentence, 18 

U.S.C. § 1028A(a)(1), (b)(2), instead of charging her with simple

identity theft under § 1028(a)(7), which does not carry a mandatory 

sentence. For the reasons explained above, Kitts was plainly 

chargeable under the aggravated identity theft statute and it is 

well established that the choice of charge is a matter of 

prosecutorial discretion. See Bordenkircher v. Hayes, 434 U.S. 

357, 364 (1978).
- 20 -

the district court. Accordingly, we review the district court's 

acceptance of the calculation for plain error.

The PSR reported that the loss sustained by Kitts's

victims totaled $3,085,939, which resulted in a sixteen-level 

increase in her offense level. This figure did not include an 

additional $368,199 that was already repaid.10 Kitts argues that 

the district court also should have excluded amounts that were not 

"losses" because they were covered by an insurance policy. She 

notes that "individuals were made whole by the broker-dealer, which 

was in turn compensated by an Errors & Omissions insurance policy 

into which Kitts had paid." 

We have explained that reimbursement by an insurance 

policy merely "shifts the loss to another victim (the insurance 

company)." United States v. Alegria, 192 F.3d 179, 191 (1st Cir. 

1999). Therefore, regardless of whether Kitts's clients were 

subsequently reimbursed by an insurance policy, it was appropriate 

to include the full amount of misappropriated funds in the loss 

calculation. See United States v. Stepanian, 570 F.3d 51, 55-57 

(1st Cir. 2009) (holding that "victims" of crime include those 

whose losses were reimbursed).

As to Kitts's suggestion that the loss calculation 

should be reduced because her theft impacted only wealthy 

10 The PSR states that this money "was credited and/or repaid 

to the victims," but it unclear by whom or with what funds.
- 21 -

clients,11 that is a woefully misguided argument. As we have 

previously explained, the guidelines "suggest[] that 'loss' refers 

primarily to the value of what was taken, not the harm suffered by 

the victim." United States v. Walker, 234 F.3d 780, 783 (1st Cir. 

2000). The guidelines provide no offset for choosing victims who 

arguably would suffer less from the financial harm. The district 

court was correct to consider the full value of the misappropriated 

funds in its loss calculation. 

2. Sentencing Enhancements

Our review of sentencing enhancements consists of "clear 

error review [of] factual findings, de novo review [of]

interpretations and applications of the guidelines, and abuse of 

discretion review [of] judgment calls." United States v. O'Brien, 

870 F.3d 11, 15 (1st Cir. 2017) (quoting United States v. Cox, 851 

F.3d 113, 119 (1st Cir. 2017)). 

First, Kitts challenges the application of the 

sophisticated means enhancement. Undisputed portions of the PSR 

indicate that, after her employer began an investigation, Kitts 

attempted to cover up the misappropriation of her clients' funds 

by creating a fake company and fake Schedule C tax forms. Kitts 

11 In her brief, Kitts states that "the 'loss' figure 

overstated Kitts'[s] culpability. Kitts was aware . . . her 

clients were wealthy enough to weather the use of some of their 

funds (which she told herself was temporary)."
- 22 -

also "altered the Marquis Consulting Account statements to 

disguise the source and amounts of the deposits into that account." 

The commentary to the guidelines defines "sophisticated 

means" as follows: 

For purposes of subsection (b)(10)(C), "sophisticated means"

means especially complex or especially intricate offense 

conduct pertaining to the execution or concealment of an 

offense. For example, in a telemarketing scheme, locating 

the main office of the scheme in one jurisdiction but locating 

soliciting operations in another jurisdiction ordinarily 

indicates sophisticated means. Conduct such as hiding assets 

or transactions, or both, through the use of fictitious 

entities, corporate shells, or offshore financial accounts 

also ordinarily indicates sophisticated means.

U.S.S.G. § 2B1.1 cmt. n.9(B). Kitts argues that the unauthorized 

use of a client's signature and creating a fake company are not 

complex or sophisticated. The guidelines and our jurisprudence 

disagree. See, e.g., United States v. Pacheco-Martinez, 791 F.3d 

171, 179 (1st Cir. 2015) (upholding application of the 

sophisticated means enhancement where the defendant "set up 

multiple corporate entities in order to facilitate his fraudulent 

schemes"); United States v. Foley, 783 F.3d 7, 26 (1st Cir. 2015) 

(upholding application of the enhancement where, inter alia, the 

defendant used fake checks and "directed his paralegal to draw and 

then redeposit a check . . . to create the appearance that the 

borrower's funds had been received"). The record plainly supports 

the application of the enhancement. 
- 23 -

Kitts also objects to the two-point enhancement for 

substantial financial hardship. The PSR connects the application 

of the enhancement to the losses suffered by Client A. In total, 

Kitts fraudulently obtained approximately $2,014,887 from Client 

A. As a result, the PSR reports, "[Client A's] savings w[ere] 

nearly depleted and she was forced to liquidate her apartment in 

order to generate funds to support herself." Kitts argues that 

the victims who spoke at her sentencing hearing -- not including 

Client A, who submitted a victim impact letter instead -- were 

more upset about being deceived by a friend than about their 

financial losses. And, in another misguided argument, Kitts 

suggests in her brief that her clients did not suffer financial 

hardship because they were "well-off."12

It is the impact on the victims' financial situation, 

not their distress when speaking at the sentencing hearing, that 

is relevant to the substantial financial hardship enhancement. 

See United States v. George, 949 F.3d 1181, 1185-86 (9th Cir. 2020) 

(interpreting the term "substantial financial hardship"). Client 

A's experience, including the loss of her savings and the 

liquidation of her apartment, inescapably constitutes substantial 

financial hardship within the ambit of the guidelines. See

12 Kitts argues that "while what she did to [her] clients was 

wrong, none of [her] well-off clients suffered particularly 

'substantial financial hardship.'" She does not make any specific 

arguments as to the impact on Client A.
- 24 -

U.S.S.G. § 2B1.1 cmt. n.4(F) (listing "suffering a substantial 

loss of a . . . savings or investment fund" and "making substantial 

changes to his or her living arrangements" as examples of 

substantial financial hardship). Accordingly, the district court 

did not abuse its discretion in applying the substantial financial 

hardship enhancement.

D. Written Judgment

Lastly, Kitts argues that the eighty-seven-month term of 

incarceration in the judgment entered against her must be reduced

to eighty-four months. During the sentencing hearing, the district 

court initially stated that it was "impos[ing] a sentence of 87 

months, that's 63 months on Counts One through Five and on-andafter time of 24 months for a total of 87 months." However, later 

in the hearing, when formally imposing sentence, the district court 

appeared to make a misstatement:

[I]t is the judgment of this [c]ourt that you're hereby 

committed to the custody of the Bureau of Prisons for a 

term of 84 months.

This term shall consist, as I said, of 63 months on 

Counts One through Five to be served concurrently with 

each other, and a term of 24 months on Count Six to be 

served consecutively to the term imposed on Counts One 

through Five.

The written judgment contains a sentence of eighty-seven months. 

Kitts contends that the discrepancy between the court's second

statement referencing an eighty-four-month sentence and the 
- 25 -

written judgment requires that her term of incarceration be amended 

to eighty-four months. 

Kitts relies on United States v. Rosario, 386 F.3d 166, 

168 (2d Cir. 2004) for the general proposition that "in the event 

of variation between an oral pronouncement of sentence and a 

subsequent written judgment, the oral pronouncement controls." As 

the Second Circuit explained, "[t]his rule implements the 

requirement that a defendant is entitled to be present at all 

critical stages of his trial, including sentencing." Id. at 168-

169. We adhere to the same rule. See, e.g., United States v. 

Ortiz-Torres, 449 F.3d 61, 74 (1st Cir. 2006). 

However, our analysis typically focuses on whether a 

defendant had appropriate notice of the terms of the written 

judgment at the sentencing. Id. Kitts does not argue that she 

lacked notice of the sentence contained in the written judgment.

She simply argues that her sentence must be amended to correspond 

with the court's statement during the formal imposition of her 

sentence, when the court made the mathematical error. 

This argument fails. The district court first explained 

that it was imposing a sentence of eighty-seven months, divided 

into the two segments it identified (sixty-three months on Counts 

One through Five and twenty-four months on Count Six), and it 

subsequently recorded that sentence in the written judgment. The 

district court's isolated reference to eighty-four months, in its 
- 26 -

second reference to the prison term, was clearly a simple 

misstatement. Following that misstatement, the court again 

referenced the separate terms of sixty-three months and twentyfour months (totaling eighty-seven months). In light of the first

reference to an eighty-seven-month sentence and the subsequent

correct recitation of the months attached to each count, Kitts had 

notice of the terms of the written judgment, and we see no basis 

to amend the judgment based on an isolated misstatement.

Affirmed, except that Kitts's ineffective assistance of 

counsel claim is dismissed without prejudice.