*

Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of

Tennessee, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0262p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

STEPHEN MICHAEL MOBLEY,

Defendant-Appellant.

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No. 08-4641

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 07-00097-001—Susan J. Dlott, Chief District Judge.

Argued: August 3, 2010

Decided and Filed: August 25, 2010 

Before: COLE and McKEAGUE, Circuit Judges; MAYS, District Judge.*

_________________

COUNSEL

ARGUED: Michael M. Losavio, Louisville, Kentucky, for Appellant. Christopher K.

Barnes, ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.

ON BRIEF: Michael M. Losavio, Louisville, Kentucky, for Appellant. Christopher K.

Barnes, ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.

_________________

OPINION

_________________

McKEAGUE, Circuit Judge. Stephen Michael Mobley, Jr., who pled guilty to

both conspiracy to commit mail, wire, and bank fraud and aggravated identity theft,

appeals, arguing that the district court lacked the factual basis required under FED. R.

1
No. 08-4641 United States v. Mobley Page 2

1

Mobley was originally indicted in July of 2007 on three counts, but that indictment was

superceded by the December 2007 information. 

2

While Count 2 indicates that wire fraud is defined under 18 U.S.C. § 1341, in fact, § 1341

applies to mail fraud; wire fraud is governed by 18 U.S.C. § 1343. The government states that the

information “should have referenced ‘§ 1343’”.

CRIM. P. 11(b)(3) to enter judgment on his plea as to aggravated identity theft. As the

court had sufficient factual basis to conclude that Mobley used his wife’s social security

number to submit fraudulent credit applications “during and in relation to” the requisite

predicate crime of wire fraud, we affirm Mobley’s conviction. 

I.

On December 27, 2007, the government filed an information charging Mobley,

a resident of Kettering, Ohio, with two counts: (1) conspiracy to commit mail, wire, and

bank fraud in violation of 18 U.S.C. § 1349; and (2) aggravated identity theft in violation

of 18 U.S.C. § 1028A.1

 According to Count 2:

On or about May 24, 2006, during and in relation to wire fraud

(18 U.S.C. § 1341),2

 [Mobley] did knowingly possess and use, without

lawful authority, a means of identification of another person, namely, the

social security number of a person identified herein as K.M.

(R. 91 at 16.) (“K.M.” is Kelley Mobley, Stephen Mobley’s wife.) The following day,

the government and Mobley filed a plea agreement under which Mobley waived

indictment and agreed to plead guilty to both counts. 

The district court accepted Mobley’s plea at a hearing on January 16, 2008, at

which time Mobley stated that he understood the charges and that his lawyer was fully

informed about the facts and circumstances on which the charges were based. Mobley

also stated that he had received and read the information, and was waiving both

indictment and the public reading of the information at the hearing. Ron Verst, an

officer with the Postal Inspection Service, then read the factual statement that was

attached to the signed plea agreement:

Beginning in December, 2005, the defendant, Stephen M. Mobley,

conspired with Ted Bettker, George Nelson, Tony Stonerock, and Jason
No. 08-4641 United States v. Mobley Page 3

Smith and others to devise a scheme to obtain funds under the custody

and control of Citibank . . . .

The conspiracy to execute a scheme to defraud Citibank was organized

and directed by Mobley and generally involved opening fraudulent

business credit card accounts. Mobley and his co-conspirators would

open the fraudulent accounts by submitting account applications that

were false in at least one material respect. The fraudulent accounts were

opened by Mobley generally on-line in his name or under the name of

one of his co-conspirators. Sometimes the application to open the

fraudulent account would contain a false personal identifier. In other

cases, the application would contain the real personal identifiers of coconspirators who provided the information to Mobley in furtherance of

the scheme to defraud and the name of a legitimate business entity but

one with which the person in whose name Mobley was submitting the

card was not affiliated.

Typically Mobley would approach other individuals about the scheme

and would explain that the credit card companies write this stuff off and

that once the account was opened in the individual’s name, the

individuals could use the credit as they wished to make purchases or

obtain cash by depositing checks drawn on the account but would not

need to make any payments. Mobley would offer to open a fraudulent

account as described above on the condition that the individual in whose

name the fraudulent Citibank account was opened give Mobley access

via credit card or check drawn on the account to a certain percentage of

the total credit line, usually 50 percent.

Mobley would obtain the personal identifiers of the individuals, the

individual having agreed to participate in this scheme, thereby becoming

a co-conspirator, as well as other information such as tax identification

numbers of the individuals’ businesses and submit a fraudulent business

credit application to Citibank either on-line or over the telephone in the

individual’s name. Citibank would mail the credit cards for the account

in whose name Mobley had opened the account. That individual or an

agent of that individual would then deliver some or all of the credit cards

to Mobley pursuant to the agreement reached. Mobley would activate

the fraudulent cards and sometimes request checks from Citibank so that

the credit authorized by Citibank could be converted to cash. Mobley

and the other individuals would make purchases and write checks against

the fraudulent Citibank business credit card accounts that Mobley had

opened in their names.

In February, 2006, Mobley contacted Bettker regarding the scheme to

defraud. They came to an agreement as outlined above. Mobley told

Bettker that he could either pay off the credit card balances each month
No. 08-4641 United States v. Mobley Page 4

or not pay it off; it wouldn’t matter because Bettker was already in

bankruptcy. Bettker provided Mobley with his Social Security number

and other personal – personal information as well as the tax identification

numbers for all of Bettker’s business. Mobley told Bettker that he would

be approved for three business credit card accounts totaling $55,000, two

for $20,000, and one for $15,000. Bettker received the cards by mail and

delivered the cards to Mobley.

On February 2nd, 2006, Mobley activated the cards by making an

interstate telephone call to Citibank. Mobley kept one of the fraudulent

cards with a $20,000 limit, gave Bettker’s wife a fraudulent card with a

$20,000 limit, and sent a third fraudulent card with a $15,000 limit via

overnight service through the United States mail to Bettker who was

working in Florida. Mobley and Bettker had an understanding that

Mobley was entitled to 50 percent of the credit limit on the third card,

i.e., $7,500. Subsequently, both Mobley and Bettker made purchases

using the above-referenced fraudulent credit cards.

Based on the fraudulent applications submitted by Mobley under the

name Kelley Mobley, using her Social Security number, and using the

business name of The Gift Box, a legitimate business located in

Columbus, Ohio, but with which Mobley’s wife was not affiliated,

Citibank on May 24th, 2006 authorized three business billing credit cards

and three subaccounts . . . . These cards collectively held a credit limit

of $65,000.

In addition to the conduct outlined above, defendants Nelson, Stonerock,

and Smith provided Mobley with their personal identifiers, Social

Security number, date of birth, et cetera, and other relevant information

for the purpose of allowing Mobley to submit fraudulent business credit

card applications pursuant to the respective agreements with Mobley . . . .

On March 23rd, 2006, Mobley opened or caused to be opened three

fraudulent Citibank accounts in the name of L.W., a deceased individual

and a relation of Stonerock. The fraudulent accounts were opening –

opened using L.W.’s name but using a fraudulent Social Security number

and under the business name of Bridgetech, a legitimate business located

in Cincinnati, Ohio but one with which neither Mobley, Stonerock, nor

L.W. was affiliated.

Various of the foregoing acts occurred in the Southern District of Ohio.

(Plea Tr. at 27-32.) When the district court asked whether Mobley was offering to plead

guilty because he was “in fact guilty of the offenses charged in Counts 1 and 2,” Mobley

answered “yes.” (Plea Tr. at 32.) Mobley was sentenced to serve 30 months on Count
No. 08-4641 United States v. Mobley Page 5

1 and 24 months on Count 2; 12 of the 30 months imposed for Count 1 and all 24 of the

months imposed for Count 2 were to be served consecutively to an undischarged 70-

month sentence on a prior drug conviction. The district court entered judgment on

November 19, 2008. This appeal followed.

II.

Mobley argues that the district court erred by entering judgment on his guilty

plea as to Count 2 of the information, as the court failed to ensure, as required by FED.

R. CRIM. P. 11(b)(3), that there was a factual basis to determine that he had in fact

committed aggravated identity theft in violation of 18 U.S.C. § 1028A. In particular,

Mobley argues that the district court lacked a factual basis demonstrating that:

(1) Mobley had committed wire fraud; (2) Mobley had ever, without lawful authority,

possessed or used the identification of another person; or (3) any of Mobley’s actions

occurred within the Southern District of Ohio.

Where, as here, a defendant does not present objections regarding any alleged

Rule 11 violation to the district court, we review for plain error. See United States v.

Lalonde, 509 F.3d 750, 759 (6th Cir. 2007). Plain error review involves four prongs: 

First, there must be an error or defect – some sort of “[d]eviation from a

legal rule” – that has not been intentionally relinquished or abandoned

. . . . Second, the legal error must be clear or obvious, rather than subject

to reasonable dispute. Third, the error must have affected the appellant’s

substantial rights, which in the ordinary case means he must demonstrate

that it “affected the outcome of the district court proceedings.” 

Puckett v. United States, --- U.S. ----, 129 S.Ct. 1423, 1429 (2009). Fourth, if these three

prongs are satisfied, then the court “has the discretion to remedy the error – discretion

which ought to be exercised only if the error ‘seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings.’” Id. (emphasis in original). To obtain

relief for an unpreserved Rule 11 failing, “a defendant is obliged to show a reasonable

probability that, but for the error, he would not have entered the plea.” United States v.

Dominguez Benitez, 542 U.S. 74, 76 (2004). “A district court errs when it ‘fails to

comply with the clear mandate of a Federal Rule of Criminal Procedure,’ and this error
No. 08-4641 United States v. Mobley Page 6

is plain.” United States v. McCreary-Redd, 475 F.3d 718, 722 (6th Cir. 2007) (quoting

United States v. Murdock, 398 F.3d 491, 497 (6th Cir. 2005)). 

According to FED.R.CRIM. P. 11(b)(3), “[b]efore entering judgment on a guilty

plea, the court must determine that there is a factual basis for the plea.” The purpose of

this requirement “is to ensure the accuracy of the plea through some evidence that a

defendant actually committed the offense.” McCreary-Redd, 475 F.3d at 722 (quoting

United States v. Tunning, 69 F.3d 107, 111 (6th Cir. 1995)). Put another way, “[t]he

purpose of this rule is ‘to protect a defendant who is in the position of pleading

voluntarily with an understanding of the nature of the charge but without realizing that

his conduct does not actually fall within the charge.’” Lalonde, 509 F.3d at 762 (quoting

McCarthy v. United States, 394 U.S. 459, 467 (1969)). The Rule “does not provide any

guidance concerning the steps a district court should take to ensure that a factual basis

exists.” McCreary-Redd, 475 F.3d at 722 (quoting United States v. Baez, 87 F.3d 805,

809 (6th Cir. 1996)). As we have explained:

The ideal means to establish the factual basis for a guilty plea is for the

district court to ask the defendant to state, in the defendant’s own words,

what the defendant did that he believes constitutes the crime to which he

is pleading guilty. So long as the district court ensures that the

defendant’s statement includes conduct – and mental state if necessary

– that satisfy every element of the offense, there should be no question

concerning the sufficiency of the factual basis for the guilty plea. This

“ideal” method is by no means the only method, however. “We

recognize that the district court may determine the existence of the . . .

factual basis from a number of sources, including a statement on the

record from the government prosecutors as well as a statement from the

defendant.” And, of course, it is possible that witnesses may be called

to state the factual basis with the defendant providing confirmation.

Tunning, 69 F.3d at 112 (citation omitted). Critically, FED. R. CRIM. P. 11(b)(3) states

that the district court should make the factual basis determination “[b]efore entering

judgment on a guilty plea” – not, as in other subsections of Rule 11, “before accepting

a plea.” In reviewing whether a district court had a factual basis for a plea, then, we

“may examine the entire record, including proceedings that occurred after the plea
No. 08-4641 United States v. Mobley Page 7

colloquy.” McCreary-Redd, 475 F.3d at 722 n.1 (emphasis in original) (quoting

Spiridigliozzi v. United States, 117 F. App’x 385, 391 (6th Cir. 2004)).

Mobley pled guilty to Count 2 of the information, which stated that he violated

18 U.S.C. § 1028A. According to § 1028A(a)(1), “[w]hoever, during and in relation to

any felony violation enumerated in subsection (c), knowingly transfers, possesses, or

uses, without lawful authority, a means of identification of another person shall, in

addition to the punishment provided for such felony, be sentenced to a term of

imprisonment of 2 years.” Among those felony violations enumerated in subsection (c)

are any provisions “relating to mail, bank, and wire fraud.” 18 U.S.C. § 1028A(c)(5).

Before entering judgment on Count 2, therefore, the district court needed to have a

factual basis for determining that Mobley knowingly used Kelley Mobley’s social

security number without lawful authority “during and in relation to” interstate wire

fraud. Mobley also argues that the court needed to have a factual basis for determining

that the crimes had occurred at least in part in the Southern District of Ohio. 

A. Venue in the Southern District of Ohio

Mobley’s first argument is that the district court lacked a factual basis to

determine that the acts leading to Count 2 of the information occurred within the

Southern District of Ohio. Barring some exception, “the government must prosecute an

offense in a district where the offense was committed.” FED. R. CRIM. P. 18; see also

Johnston v. United States, 351 U.S. 215, 220 (1956) (“[T]he place of the crime . . . is

determined by the acts of the accused that violate a statute.”) As the Supreme Court has

explained, “where a crime consists of distinct parts which have different localities the

whole may be tried where any part can be proved to have been done.” United States v.

Rodriguez-Moreno, 526 U.S. 275, 281 (quoting United States v. Lombardo, 241 U.S. 73,

77 (1916)). Accordingly, “[v]enue may . . . be had in more than one location.” United

States v. Williams, 274 F.3d 1079, 1084 (6th Cir. 2001) (citing United States v. Reed,

773 F.2d 477, 480 (2d Cir. 1985)). 

As a threshold matter, we conclude that the factual basis requirement of Rule

11(b)(3) does not apply to consideration of venue. Rule 11(b)(3) explicitly and without
No. 08-4641 United States v. Mobley Page 8

3

Mobley’s contention that venue is jurisdictional and so cannot be waived by failure to object

prior to entry of judgment is simply incorrect. See Williams v. United States, 582 F.2d 1039, 1041 (6th

Cir. 1978) (“[T]he issue of venue is not a jurisdictional issue. . . . venue is likewise a privilege granted to

the accused rather than a jurisdictional prerequisite.”).

4

Although he did not clearly raise this argument in his briefs, we also note that, by pleading

guilty, Mobley waived any straightforward venue objection. In Grenoble, 413 F.3d at 573, we

acknowledged the general rule that objections to venue are usually waived if not asserted before trial, but

added that “a conclusion of waiver [of venue after a guilty plea] is not appropriate” where both: (1) the

defect is not “apparent on the face of the indictment”; and (2) “the defendant does not have notice of the

defect through other means.” An indictment is “defective on its face if it alleges facts which, if proven,

would not sustain venue in the district where the defendant is to be tried.” United States v. Adams, 803

F.2d 722, 1986 WL 17714, at *9 (6th Cir. Sept. 22, 1986) (unpublished). Here, Count 2 (unlike Count 1)

said nothing at all about the location of any criminal act; even if all of the allegations of Count 2 were

proven, that proof by itself would not sustain venue in the Southern District of Ohio. Any defect as to

venue in Count 2 was thus apparent on the face of the information. 

exception prohibits district courts from entering judgment in the absence of a factual

basis for a guilty plea; in other words, defendants cannot waive this requirement, even

if they wish to do so. In contrast, however, defendants can waive venue objections; in

at least some cases, moreover, defendants automatically waive venue objections simply

by pleading guilty. See United States v. Grenoble, 413 F.3d 569, 573 (6th Cir. 2005)

(“Objections to defects in venue are usually waived if not asserted before trial . . . .”);

see also United States v. Calderon, 243 F.3d 587, 590 (2nd Cir. 2001) (“Having entered

a valid plea, Calderon’s objection as to venue is waived. . . . Venue is not jurisdictional

. . . .”); United States v. Brown, 583 F.2d 915, 918 (7th Cir. 1978) (“[D]efendant’s

asserted venue protection . . . is subject to waiver by his guilty plea.”); United States v.

Semel, 347 F.2d 228, 229 (4th Cir. 1965).3 As the factual basis requirement of Rule

11(b)(3) for a plea cannot be waived, and as objections even as to clearly-defective

venue can be waived, then consideration of venue cannot be part of the required 11(b)(3)

factual basis determination. Accordingly, it is irrelevant to Mobley’s appeal, which is

wholly based on 11(b)(3), whether the court had any factual basis to determine the

location of any alleged criminal acts.4

Even if Mobley were correct that Rule 11(b)(3) requires district courts entering

judgment to have a factual basis regarding venue, there is ample evidence in the record

to meet this requirement. As part of the statement of facts read at the plea hearing, for

example, Verst stated that Mobley, who lived in the Southern District of Ohio, submitted

“fraudulent applications . . . under the name Kelley Mobley, using her Social Security
No. 08-4641 United States v. Mobley Page 9

number, and using the business name of The Gift Box, a legitimate business located in

Columbus, Ohio, but with which Mobley’s wife was not affiliated.” (Plea Tr. at 30.)

Verst also explained that “various of the . . . acts [described in the statement of facts]

occurred in the Southern District of Ohio.” (Plea Tr. at 32.) More importantly, Count

1 of the information, to which Mobley pled guilty and the factual basis of which he has

not contested, stated that in furtherance of his scheme to defraud Citibank by filing

fraudulent applications, “[Mobley] knowingly and unlawfully transmitted and caused to

be transmitted . . . interstate telephone and online communications, all to and from

outside the Southern District of Ohio to and from the Southern District of Ohio . . . .”

(R. 91 at 7-8.) Even if such a general statement might not be sufficient to prove venue

at trial, the quantum of information required to satisfy the Rule 11(b)(3) “factual basis”

requirement for a guilty plea is lower. Cf. McCreary-Redd, 475 F.3d at 722 (noting that

the factual basis requirement is met by “some evidence” that a defendant actually

committed the offense); Tunning, 69 F.3d at 111 (concluding that the factual basis

requirement never requires “strong evidence of actual guilt,” but rather only sufficient

evidence for the court to “satisfy it[self] that there is a factual basis . . . .”).

B. Knowing and Unlawful Use of Kelley Mobley’s Social Security Number

Mobley’s second argument is that the district court lacked a factual basis to

determine that he “knowingly transfer[d], possesse[d], or use[d], without lawful

authority, a means of identification of another person.” See 18 U.S.C. § 1028A(1).

Mobley’s reasoning here is not entirely clear. While he cites Flores-Figueroa v. United

States, 129 S. Ct. 1886 (2009), in an attempt to demonstrate that the district court lacked

the necessary factual basis, the Supreme Court in that case simply found that the

aggravated identity theft statute requires the government to prove “that the defendant

knew that the ‘means of identification’ he or she unlawfully transferred, possessed, or

used, in fact, belonged to ‘another person’” – and was not, for example, a fake ID. 129

S. Ct. at 1888. Mobley, of course, knew that in using his wife’s identity he was using

the identity of “another person”; he admitted that he submitted “fraudulent applications”

under his wife’s name, “using her Social Security number”. According to the
No. 08-4641 United States v. Mobley Page 10

Presentencing Investigation Report prepared by the United States Probation Office,

moreover, “[o]n August 25, 2006, Mobley used the Social Security Number of another

person without their permission.” (PSR at 4.) The district court thus clearly had a

factual basis for determining that Mobley “knowingly” used Kelley Mobley’s

identification. That a defendant’s use of any social security number – including his own

– to submit fraudulent credit applications must be “without lawful authority” is obvious.

Cf. United States v. Hines, 472 F.3d 1038, 1040 (8th Cir. 2007) (“Whether [the

defendant] used Miller’s name without permission [in trying to hide his identity from

police] . . . or he obtained Miller's consent in exchange for illegal drugs, [the defendant]

acted without lawful authority when using Miller's identification.”).

Accordingly, we find that the district court had a factual basis to determine that

Mobley knowingly used the identification of another (here Kelley Mobley) without

lawful authority.

C. “During and In Relation To” Wire Fraud

Mobley’s third argument is that the district court lacked a factual basis to

determine that any misuse of Kelley Mobley’s identification came “during and in

relation to” interstate wire fraud, the predicate felony required for him to be guilty of

aggravated identity theft under 18 U.S.C. § 1028A. 

The record demonstrates clearly that, as part of his scheme to defraud, Mobley

engaged in wire fraud. A defendant commits wire fraud when, “having devised or

intending to devise any scheme or artifice to defraud, or for obtaining money or property

by means of false or fraudulent pretenses, representations, or promises,” that defendant

“transmits or causes to be transmitted by means of wire, radio, or television

communication in interstate or foreign commerce, any writings, signs, signals, pictures,

or sounds for the purpose of executing such scheme or artifice . . . .” 18 U.S.C. § 1343.

According to the statement of facts, as part of his scheme Mobley would “submit a

fraudulent business credit application to Citibank either on-line or over the telephone in

the individual’s name.” (Plea Tr. at 29.) He would then “activate the fraudulent cards

and sometimes request checks from Citibank . . . .” (Plea Tr. at 29.) After arranging for
No. 08-4641 United States v. Mobley Page 11

cards to be obtained for Bettker, Mobley on February 2, 2006 “activated the cards by

making an interstate telephone call to Citibank.” (Plea Tr. at 30.) More importantly, as

noted in Count 1 of the information, Mobley submitted the fraudulent applications

“either online or over the telephone . . . .” (R. 91 at 2-3.) According to the critical

paragraph of the charge:

In furtherance of the scheme . . . [Mobley] knowingly and unlawfully

transmitted and caused to be transmitted in interstate commerce, by

means of wire communications, certain signs, signals, and sounds, that

is, interstate telephone and online communications, all to and from

outside the Southern District of Ohio to and from the Southern District

of Ohio . . . .

(R. 91 at 7-8.) The language of Count 1 – to which, again, Mobley pled guilty and

which he has not contested – mirrors closely the explicit language of the wire fraud

statute.

The closest question raised in this appeal is whether the district court had a

factual basis to determine that any use of Kelley Mobley’s identification was “during

and in relation to” the wire fraud as required by the aggravated identity theft statute. See

18 U.S.C. § 1028A. As the government concedes, the statement of facts “does not

expressly articulate” that Mobley submitted a fraudulent application using Kelley

Mobley’s information through interstate wire communication. Citing Smith v. United

States, 508 U.S. 223, 236-37 (1993), however, the government argues that we should

read the “during and in relation to” element broadly so as to find that Mobley can be

convicted on Count 2 provided that he engaged in some wire fraud as part of the scheme

during which he used Kelley Mobley’s social security number, regardless of whether the

wire fraud actually involved the use of that social security number. Mobley counters

that we should not construe the “in relation to” phrase of § 1028A expansively, as the

“element of identity theft is inherently part of the fraud such that a passing connection

does not meet the intent of Congress or the ends of justice in using this enhancement

penalty lightly.” (Mobley Reply Br .at 9.) 
No. 08-4641 United States v. Mobley Page 12

We conclude that a broad reading of “during and in relation to” is reasonable and

appropriate. In Smith, in which the Supreme Court found that a defendant had “used”

a firearm “during and in relation to” a drug trafficking crime within the meaning of

18 U.S.C. § 924(c)(1) when he traded the gun for drugs, the Court explicitly examined

the meaning of the key phrase:

The phrase “in relation to” is expansive, cf. District of Columbia v.

Greater Washington Board of Trade, 506 U.S. 125, 129 (1992) (the

phrase “relate to” is “deliberately expansive” (internal quotation marks

omitted)), as the Courts of Appeals construing § 924(c)(1) have

recognized, United States v. Phelps, 877 F.2d 28, 30 (9th Cir. 1989)

(“[t]he phrase ‘in relation to’ is broad”); United States v. Harris, 959

F.2d 246, 261 (D.C. Cir. 1992) (per curiam ) (firearm is used “in relation

to” the crime if it “facilitate[s] the predicate offense in some way”).

Nonetheless, the phrase does illuminate § 924(c)(1)’s boundaries.

According to Webster’s, “in relation to” means “with reference to” or “as

regards.” WEBSTER’S NEW INTERNATIONAL DICTIONARY 2102 (2d ed.

1939). The phrase “in relation to” thus, at a minimum, clarifies that the

firearm must have some purpose or effect with respect to the drug

trafficking crime; its presence or involvement cannot be the result of

accident or coincidence. As one court has observed, the “in relation to”

language “allay[s] explicitly the concern that a person could be”

punished under § 924(c)(1) for committing a drug trafficking offense

“while in possession of a firearm” even though the firearm’s presence is

coincidental or entirely “unrelated” to the crime. United States v.

Stewart, 779 F.2d 538, 539 (9th Cir. 1985) (Kennedy, J.). Instead, the

gun at least must “facilitat[e], or ha[ve] the potential of facilitating,” the

drug trafficking offense. Id., at 540. 

Smith, 508 U.S. at 237-38. As we recognized in United States v. Warwick, 167 F.3d 965,

971 (6th Cir. 1999), the Court’s decision in Smith amounts to a “broad reading” of “in

relation to,” and means that the “in relation to” element of § 924(c)(1) “is met if the gun

facilitates or has the potential of facilitating the drug trafficking offense.” 

By analogy to Smith, we therefore read the phrase “in relation to” in § 1028A as,

at a minimum, clarifying that the identity theft must have “some purpose or effect with

respect to” the predicate crime. This means that the “in relation to” element is met if the

identity theft “facilitates or has the potential of facilitating” that predicate felony. See

Warwick, 167 F.3d at 971. Given this reading, we find that the district court had
No. 08-4641 United States v. Mobley Page 13

sufficient factual basis to determine that Mobley’s unlawful use of his wife’s identity

was “during and in relation to” the wire fraud. The statement of facts and the

information make clear that Mobley used his wife’s social security number as part of an

expansive scheme to defraud Citibank, that as a regular part of that scheme he repeatedly

engaged in interstate wire fraud by submitting online applications, and that he

specifically submitted “fraudulent applications . . . under the name Kelley Mobley, using

her Social Security number . . . .” (Plea Tr. at 30.) Put another way, the acts described

in Count 2 comprised a means by which Mobley sought to accomplish the acts described

in Count 1. Mobley’s identity theft thus clearly either facilitated or “had the potential

of facilitating” the wire fraud. See Warwick, 167 F.3d at 971.

III.

In his briefs, Mobley makes an undeveloped argument that the district court also

failed to abide by the dictates of FED. R. CRIM. P. 11(b)(1)(G), which provides that,

before accepting a guilty plea from a defendant, the district court must determine that

the defendant understands “the nature of each charge to which the defendant is

pleading.” This requirement is “‘integrally related’ to Rule 11(b)(3)’s mandate that the

district court determine that the guilty plea has a factual basis.” United States v. Page,

520 F.3d 545, 547 (6th Cir. 2008) (quoting United States v. Valdez, 362 F.3d 903, 909

(6th Cir. 2004)). “We consider issues not fully developed and argued to be waived.”

Children's Center for Developmental Enrichment v. Machle, --- F.3d ----, 2010 WL

2794193, at *5 n.3 (6th Cir. 2010) (quoting Brindley v. McCullen, 61 F.3d 507, 509 (6th

Cir. 1995)). Even had Mobley developed this argument in his briefs, moreover, as he

failed to raise any objection before the district court, we would similarly review for plain

error. Puckett, 129 S.Ct. at 1429. Mobley makes only one claim regarding his

knowledge of the charges: that, as he did not in fact commit the crime of aggravated

identity theft, he would never have pled guilty if he had understood the charges, and so

his guilty plea alone demonstrates that he did not. As we have concluded, however, the

district court had ample factual basis to determine that Mobley committed this crime.

Mobley, moreover, answered “yes” when asked by the court whether he was “in fact
No. 08-4641 United States v. Mobley Page 14

guilty of the offenses charged in Counts 1 and 2.” As in Page, here, “[w]hile less than

a model of clarity, the totality of the record supports the government’s argument that the

district court established . . . [that the defendant] understood the nature of the charge to

which he pled guilty.” Page, 520 F.3d at 548. Accordingly, we find that Mobley has

failed to demonstrate that the district court committed plain error in accepting his plea.

IV.

We began by finding that, in satisfying the “factual basis” requirement of FED.

R. CRIM. P. 11(b)(3) before entering judgments on guilty pleas, district courts need not

consider venue. Given the meaning the Supreme Court attached in Smith, 508 U.S. at

237-38, to the phrase “during and in relation to,” we also find that the unlawful transfer,

use, or possession of another’s means of identification within the meaning of 18 U.S.C.

§ 1028A is “in relation to” the predicate felony required by the identity theft statute if

the transfer, use, or possession “facilitates or has the potential of facilitating” that

predicate felony. Given these two holdings, we find that in this case, before entering

judgment on Mobley’s guilty plea, the district court had a factual basis to conclude that

Mobley knowingly and unlawfully used his wife’s social security number “during and

in relation to” wire fraud. We also find that Mobley has not demonstrated that the

district court committed plain error in determining that he understood the nature of the

charges against him. Accordingly, we AFFIRM Mobley’s conviction.