PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 19

- 3033

_____________

UNITED STATES OF AMERICA

v.

SCOTT CAPPS, Appellant

_______________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2

- 18

- cr

- 0572

- 001) District Judge: Hon. Michael M. Baylson

_______________

Argued June 16, 2020

Before: JORDAN, MATEY and ROTH, Circuit Judges.

(Filed : October 8, 2020 )

_______________2 Abigail E. Horn [ARGUED]

Lei g h M. Skipper Federal Community Defender Office For the Eastern District of Pennsylvania

601 Walnut Street

– Suite 540 Philadelphia, PA 19106 Counsel for Appellant

David J. Ignall [ARGUED] Office of United States Attorney

615 Chestnut Street

– Suite 1250 Philadelphia, PA 19106 Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge

.

While working for The Vanguard Group (“Vanguard”)

, Scott Capps fraudulently caused funds from dormant accounts

to be mailed to co

- conspirators , one of whom then wrote checks conveying back to him some of the proceeds. Capps

was eventually charged with

, and pled guilty to

, conspiracy to

commit mail fraud, money laundering, and tax evasion. At sentencing, he did not raise any objections to the Presentence Report (“PSR”) that had been prepared , and the District Court adopted its calculation of the applicable guidelines range

.

Capps now contends that the District Court plainly erred in applying two upward adjustments in calculating his guidelines range. First, he says that , in setting the offense level3 for the money laundering, the District Court wrongly appl ied an adjustment for abuse of a position of tr ust (“the abuse of trust adjustment”)

. Second, he makes two arguments that the District Court erred in applying an adjustment for deriving

more than $1 million from a financial institution (“ the gross receipts adjustment ”)

. More specifically, h e says that the gross receipts adjustment should not have been applied because the account holders, not Vanguard, were the source of the funds

,

a nd he further argues that the District Court made contradictory

statements about whether he met the threshold for the adjustment to apply.

As to the offense calculation for money laundering , we agree that the District Court plainly erred in applying the abuse of trust adjustment . As to the application of the gross receipts adjustment, we conclud e that, while the District Court did not plainly err in deciding the adjustment could be applicable , it i s not clear on this record whether Capps met the threshold for the adjustment to actually apply. W e will therefore vacate Capps’s sentence and remand for resentencing.

I. B ACKGROUND

Vanguard is “an investment management group that

manage [s] trillions of dollars in assets for account holders throughout the world.” ( Indictment, App. at 16.) Through his employment there , Capps was able to identify accounts that

were due for escheatment because of, for example, the d eath of

an account holder with no heirs or the abandonment of funds

in an account. Capps drew the money from such accounts by surreptitiously using subordinates’ passwords and c ausing Vanguard to mail checks drawn on th e accounts to his friend

,4 Lance Tobin, and others. He concealed his actions by falsifying documents and deleting records.

Tobin deposited the stole n funds into his bank accounts

and then wrote checks back to Capps to pay him a portion of the criminal proceeds. As stated in the indictment, Capps received at least two checks from Tobin, one for $555,200 and one for $29,750. Capps deposited those checks in h is bank account and did not report the income on his federal tax returns.

When the scheme came to light, Capps was charged with conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349, money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2, and filing a false tax return in violation of 26 U.S.C. § 7206(1). H e pled guilty to all charges

.

A PSR was prepared , employing the United States Sentencing Guidelines . It calculated Capps’s offense level for money laundering, though not for conspiracy to commit mail fraud, and included two separate 2

- level adjustments that Capps now disputes : th e abuse of trust adjustment and the gross receipts adjustment

. At the time of sentencing, however,

n either party raised any objections to the PSR , and the District Court adopted it s recommendations without change. The resulting guidelines range was 63 to 78 months. The Court varied downward and sentenced Capps to 48 months’ imprisonment and 3 years’ supervised release. It also ordered Capps to pay $2,137,580.81 in restitution to Vanguard

. Capps

now appeal s

.5 II. D ISCUSSION 1

Capps argues that the District Court erred in applying

both the abuse of trust adjustment and the gross receipts adjustment. We address each in turn.

B efore turning to the merits, however, we first note the

standard of review and how it marks our analytical path

. Because Capps did not at sentencing raise any objections to the application of the adjustments, we review for plain error. The plain

- error standard requires , first, an error, second, that the

error be plain

– “that is to say, clear or obvious[,]” and third, a “reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Molina

- Martinez
v. United States , 136 S. Ct. 1338, 1343 (2016) (citation and internal quotation marks omitted). This th ird prong of the standard is sometimes described as requiring that the plain

error ha s affected the defendant’ s substantial rights. United
States v. Olano , 507 U.S. 725, 732 (1993). “ Once th e se three conditions have been met, ” there is a fourth prong to the test

, which advises that “ the court of appeals should exercise its

discretion to correct the forfeited error if the error ‘ seriously affects the fairness, integrity or public reputation of judicial proceedings. ’ ” Molina

- Martinez , 136 S. Ct. at 134 3 (quoting
Olano , 507 U.S. at 736).

T he Supreme Court has given directly pertinent guidance on how t he third and fourth prongs of the plain

- error

test apply in cases like this . As to the third prong, the Court

1 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).6 has explained that “[i]n most cases a defend ant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome.” Id. at 1346.

A nd, concerning the fourth prong, the Court has said that,

where the guidelines have been miscalculated, a “reasonable citizen” would “bear a rightly diminished view of the judicial process and its integrity.” Rosales

- Mireles v. United States

, 138 S. Ct. 1897, 190 8 (201 8). Of course, “any exercise of discretion ... inherently requires a case

- specific and fact

intensive inquiry. ” Id. at 1909 (interna l quotation marks omitted). But, “ [i] n the ordinary case

... the failure to correct a plain Guidelines error that affects a d efendant’s substantial rights will seriously affect the fairness, integrity, and public reputation of judicial proceedings

. ” I d. at 1911.

Nothing in this case suggests that we should stray from those general principles, so w e take the third and fourth prongs of the plain

- error test as being met here and are only left to

determine whether the District Court erred in applying the adjustments and , if so, whether th ose error s w ere plain. In short, we are examining prongs one and two.

A. The Adjustment for Abuse of T rust

Capps first argues that the District Court erred in applying the abuse of trust adjustment to his money laundering

conviction. Th at adjustment , set forth in Chapter 3 of the Sentencing Guidelines, tells a sentencing court that

, “ [i] f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase [the offense level] by 2 levels.” U.S.S.G. § 3B1.3. Importantly,7 however, Note 2(c) of § 2S1.1

, the guideline applicable to money laundering convictions

, directs that adjustments

contained in Chapter 3 are to be appl ied based on the money

launde ring behavior alone , not on the underlying offense from

which the laundered funds were derived. In other words, the

abuse of a position of trust has to be manifested in how the money is laundered, not in how the money was gained. According to Capps, the District Court plainly erred because

, in applying the adjustment, it relied on his position at Vanguard

and his conduct related to the conspiracy to commit mail fraud,

not on any position he had or anything he did in laundering the

stolen funds . We agree.

1. Calculating the Offense Levels

To explain the error, we need to walk through the guidelines calculations for both Capps’s mail fraud and money laundering convictions

, 2 as the guidelines require a sentencing

court to group those convictions by choosing the highest

offense level calculation after calculating the level for each offense separately

. See U.S.S.G. § 2S1.1 cmt. n.6 (“In a case
in which the defendant is convicted of a count of laundering funds and a count for the underlying offense from which the laundered funds were derived, the counts shall be grouped pursuant to subsection (c) of §3D1.2[.]”); U.S.S.G. § 3D1.3(a)

2 For ease of reference, we speak in terms of Capps’s “mail fraud” conviction, recognizing that the conviction was, more precisely, for conspiracy to commit mail fraud. The distinction has no bearing on our analysis. See U.S.S.G. § 2X1.1(a) (providing tha t the offense level for conspiracy is the same as the offense level for the substantive offense).8 (“ In the case of counts grouped together pursuant to §3D1.2(a)

- (c), the offense level applicable to a Group is the offense level ... for the most serious of the counts comprising the Group, i.e. , the highest offense level of the counts in the Group. ” )

.

Mail fraud has a base offense level of 7. U.S.S.G. § 2B1.1(a)(1). 16 levels must be added for a loss between $1,500,000 and $3,500,000. U.S.S.G. § 2B1.1(b)(1)(I).

A ssuming for the moment the applicability of the gross receipts adjustment, an additional 2 levels are added. 3 U.S.S.G. § 2B1.1(b) (17)(A). And a further 2

- level abuse of trust adjustment applies because Capps’s position of trust at Vanguard significantly facilitated his mail fraud offense. U.S.S.G. § 3B1.3. Capps agrees that, had the PSR calculated

the guidelines range for his mai l fraud conviction, the adjustment for abuse of a position of trust would have applied

to that offense level

. The total adjusted offense level, then (before any reduction for acceptance of responsibility), is 27.

The base offense level for money laundering is the “offense level for the underlying offense from which the

launder ed funds were derived [.] ” U.S.S.G. § 2S1.1(a)(1). Here, that is mail fr aud, so the base offense level is , again, 7. U.S.S.G. § 2B1.1(a)(1). As with the mail fraud calculation, 16 levels must be added for a loss between $1,500,000 and $3,500,000, U.S.S.G. § 2B1.1(b)(1)(I), a long with an additional 2 levels under the gross re ceipts adjustment, U.S.S.G. § 2B1.1(b)(17)(A) , assuming it applies . For the

3 Capps challenges the application of the gross receipts adjustment, and we address that challenge infra

.9 money laundering calculation, an additional 2 levels are added because Capps was convicted under 18 U.S.C.§ 1956. 4
U.S.S.G. § 2S1.1(b)(2). That adds up to an adjusted offense

l evel of 27, the same as the mail fraud offense level. But the

PSR also added the 2

- level adjustment for abuse of a position

of trust , pursuant to U.S.S.G. § 3B1.3, bringing the total

offense level (before any reduction for acceptance of responsibility) to 29 . Consequently, the offense level for the grouped counts became that higher number , and his guidelines

range was correspondingly increased

. That’s the problem. If the abuse of trust adjustment is inapplicable, the range is

wrong.

In determining whether to apply the abuse of trust adjustment, we use a two

- step inquiry. United States v. Douglas , 885 F.3d 124, 130 (3d Cir. 2018) (en banc). “ First, we must determine whether the defendant actually occupied a position of public or private trust.” Id. at 130. At that step, we “ask whether the defendant had the power to make decisions substantially free from supervision based on (1) a fiduciary or fiduciary

- like relationship, or (2) an authoritative status that

4 Section 1956 of Title 18 is the money laundering statute that Capps pled guilty to violating. Specifically, he pled to violating 18 U.S.C. § 1956(a)(1)(B)(i), which provides, in pertinent part, that whoever launders funds “knowing that the

transaction i s designed in whole or in part ... to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity” shall face various penalties. The guideline for money laundering

instructs that 2 l evels should be added in calculating the guidelines range for defendants convicted under that statute. U.S.S.G. § 2S1.1(b)(2).10 would lead his actions or ju dgment to be presumptively accepted.” Id. at 133. “[I]f we conclude that the defendant did hold such a position,” we reach the second step

, where the question is “whether the defendant abused this position in a manner that significantly facilitated his c rime.” Id. at 130. (citation and internal quotation marks omitted). In answering that question , “courts should consider, among other things, whether the defendant’s position allowed him to commit a

difficult

- to

- detect wrong, and the defendant’s authority vis

- à

vis the object of the wrongful act. Courts may also consider whether the victim relied on the defendant’s integrity, such that the victim became a more susceptible target for the defendant.”

Id. at 134.

Capps argues that the guidelines calculat ion contained

in the PSR and adopted by the District Court violated Commentary Note 2(c) to the money laundering guideline

, § 2S1.1

, by incorrectly bas ing the application of the abuse of

trust adjustment on his conduct in the underlying offense , the

mail fraud . He insists that he had no position of trust with respect to the money laundering and so could not have abuse d

it. On th is record, h e is correct.

S upport ing the abuse of trust adjust ment, the PSR said:

As a supervisor at Vanguard, the defendant stole the passwords of subordinates and used those passwords to access the Vanguard system used to issue checks and submit requests to have checks issued on certain dormant accounts, all in

an effort to conceal his conduct. Capps then deleted and attempted to delete the record transactions in Vanguard’s system related to the11 falsely submitted requests and improper approvals for checks issued by Vanguard on

certain dormant accounts. The defend ant abused a position of public or private trust in a manner that significantly facilitated the commission or concealment of the offense; therefore, the offense level is increased by two levels, pursuant to USSG §3B1.3.

(Presentence Report at 7.)

Th at justification for the adjustment would make perfect sense, if the count at issue were the mail fraud conviction. But

it isn’t

. The PSR did not calculate the mail fraud guidelines

range, though it should have. 5 It only calculated the range for

the mone y laundering. According to the indictment, the factual

basis for the money laundering charge is that Capps caus ed two checks to be issued to him by a co

- conspirator, knowing that the property involved in those financial transactions represented the proceeds of the mail fraud

. 6 His position at Vanguard was indeed “a position of public or private trust” that he abused to commit the fraud, but it was ir relevant to the

5 The government does not contest that the PSR should have calculated the guidelines for both money laundering and

mail fraud. ( See Answering Br. at 10 (“Much of the analysis presented in the appellant’s brief is correct: With the fraud and money laundering counts grouped, the court must determine the offense level applicable to each type of offense, and then apply to the group th e higher of the two offense levels.” )

. )

6 The money laundering was charged in two counts, one

for each check.12 commission or concealment of th e money laundering as charged in the indictment

.

The government responds that the money laundering could not have happened but for the fact that Capps was able to direct the disbursement of funds from Vang uard. This is perfectly t rue, but beside the point. I t is always the case with money laundering that the money came from some unlawful activity. B y definition , that is a feature of money laundering. There is always an underlying crime. In Capps’s case , the only abuse of a position of trust occurred in the fraud that generated the money to be laundered. The point of Commentary Note 2(c) is to keep the adjustments applicable to the criminal activity that generated the money from being applied to the

con ceptually distinct money laundering offense. In relying on

the flawed PSR
, the District Court failed to heed that separation, just as the government’s argument invites us to

make the same mistake now

.

T he government believes that United States v. Sokolow

, 91 F.3d 396 (3d Cir. 1996) , supports its position

. T he

defendant there , the president and CEO of a corporation, collected money in premiums from insurance clients through a

fraudulent scheme. Id. at 400. He converted some of those premiums for his personal benefit and laundered them through a number of bank and brokerage accounts

, real property

, and
mortgages. Id. at 400

- 01. On ap peal, we affirmed the application of the 2

- level abuse of trust adjustment because “[i]t was within [the defendant’s] authority to withdraw funds from [the corporation] and that authority was necessary for the commission of the money laundering offenses.” Id. at 41 3

. But Sokolow predates the adoption of U.S.S.G. § 2S1.1 ’s Commentary Note 2(c) in 2001

, so we had no occasion to13 consider the question we do today. The separation between the underlying offense and the money laundering was simply not

at issue

.

It is at issue here, though, and t he District Court erred in applying the 2

- level abuse of trust adjustment to the money laundering offense calculation. G ive n t he text of Commentary Note 2(c) , we think the error is plain

. 7

7 The other circuits that have addressed Commentary Note 2(c) have all explained that it dictates that any Chapter 3 adjustment must be based on the defendant’s conduct in relation to the money laundering charge, not the underlying

offense. See United States v. Salgado , 745 F.3d 1135, 1138 (11th Cir. 2014) ( “[The] application note’s meaning for this case is straightforward: When the district court calculated [the defendant’s] offense level under § 2S1.1(a)(1) , it could base a role adjustment on his conduct in the money laundering conspiracy but not on his conduct in the underlying drug conspiracy.”); United States v. Rushton , 738 F.3d 854, 859 (7th Cir. 2013) (“[T]he 2

- level enhancement for abuse of trust ... is permissible in a money laundering case

— but only when the abuse of trust relates to the money laundering itself rather than to the underling offense (the offense that generated the money that the defendant laundered).”); United States v. Keck , 643
F.3d 789 , 800

- 01 (10th Cir. 2011) (holding that a defendant’s conduct in an underlying drug conspiracy cannot be used to apply Chapter 3 adjustments); United States v. Byors , 586 F.3d 222, 226

- 28 (2d Cir. 2009) (implicitly adopting the same interpretation); United States v. Anderson , 526 F.3d 319, 328 (6th Cir. 20 08 ) (defendant ineligible for offense level reduction to money laundering guideline calculation based on her minimal role in the underlying drug conspiracy); United States14 Without application of the abuse of trust adjustment to

the offense level for the money laundering count , the offense

level ( again

, before any reduction for acceptance of responsibility) for both the money laundering conduct and the mail fraud conduct is 27, not 2 9 as the District Court

concluded

. Thus, the sentencing range is different and, in keeping with the guidance of the Supreme Court and the record here, resentencing is in order. See Molina

- Martinez , 136 S. Ct. at 1346 ( “ I n most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome.” ); Rosales

- Mireles , 138 S.

Ct. at 1908 (explaining that a “reasonable citizen” would “bea r a rightly diminished view of the judicial process and its integrity.” ) (quotation marks and citation omitted)

. 8

B. The Gross Receipts Adjustment

In calculating the money laundering offense level, the

District Court also applied the gross receipts adjustm ent, which

calls for a 2

- level adjustment when “the defendant derived

v. Cruzado

- Laureano , 440 F.3d 44, 49 (1st Cir. 2006) (“[A]pplication note 2(C) to the money

- laundering guideline provides that Chapter Three adjustments should be determined with reference to the money

- laundering offense and not to the underlying offense [

. ] ”).

8 Capps received a sentence well below the range the District Court had calculated. How, if at all, a resentencing

affects his final sentence is a matter for the District Court on remand and our opinion today implies nothing about that.15 more than $1,000,000 in gross receipts from one or more

financial institutions [

. ] ” U.S.S.G. § 2B1.1(b)(17)(A). Gross receipts “includes all property, real or personal, tangible or

inta ngible, which is obtained directly or indirectly as a result of such offense.” U.S.S.G. § 2B1.1 cmt. n.13(B). Capps
advances two arguments in his effort to persuade us that the

District Court erred in making that adjustment. First, he asserts that, in light of United States v. Stinson , 734 F.3d 180 (3d Cir. 2013), Vanguard should not be viewed as the source of the funds. Second, he says that a remand is appropriate because

the District Court made inconsistent statements about the

amount of th e gross receipts , making it unclear whether his gross receipts met the $1 million threshold. He ’ s wrong on the first point but right on the second.

1. The S ource of the Funds

T he sentencing guidelines ’ definition of “ financial

institution ” is broad and exp ressly includes investment

compan ies. 9 U.S.S.G. § 2B1.1 cmt. n.1. Vanguard is, as t he

9 “‘Financial institution’ includes any institution

described in 18 U.S.C. § 20

, § 656

, § 657

, § 1005

, § 1006

, § 1007

, or § 1014 ; any state or foreign bank, trust company, credit union, insurance company, investment company, mutual fund, savings (building a nd loan) association, union or employee pension fund; any health, medical, or hospital insurance association; brokers and dealers registered, or required to be registered, with the Securities and Exchange Commission; futures commodity merchants and commodi ty pool operators registered, or required to be registered, with the Commodity Futures Trading Commission; and any similar16 indictment recognizes , one of the world’s largest investment companies. N o contention has been made to the contrary. I t
thus clearly fits within the definition of a “ financial

institution

, ” for purposes of § 2B1.1 of the guidelines.

It is also true that Vanguard has a property interest in

the accounts it manages

. Although its customers, the account

holders

, obviously have property rights in their funds, Vanguard too ha s a possessory property interest in the m

. The Supreme Court’s decision in Shaw v. United States , 137 S. Ct. 462 (2016), explains that both account holders and financial institutions have property intere sts in funds held by the

institutions

. T he context in Shaw was the theft of a depositor’s

funds in a scheme “to defraud a financial institution” in violation of 18 U.S.C. § 1344(1)

, and the Court explained that

, even when a bank merely assumes possession of a customer’s funds, “ the bank is like a bailee, say, a garage that stores a customer’s car. And as bailee, the bank can assert the right to possess the deposited funds against all the world but for the bailor (or, say, the bailor’s authorize d agent). This right, too, is a property right. ” Id. at 466 (citations omitted). Vanguard is not a bank, but it holds its account holders’ funds in a fashion similar enough to a bank to warrant following the reasoning in

S haw . We thus conclude that

, for purposes of § 2B1.1, Vanguard had a property interest in the funds in its possession

.

Capps points to Stinson to argue that Vanguard’s

interest in the funds was nevertheless insufficient to apply the

entity, whether or not insured by the federal government.” U.S.S.G. § 2B1.1 cmt. n.1.17 gross receipts adjustment

. 10 B ut h is understanding of th at case is misguided. In Stinson

, we explained that

a financial institution is a source of the gross receipts when it exercises dominion and control

over the funds and has unrestrained discretion to

alienate the funds. A financial in stitution is not the source of all funds that have passed through the institution, as might occur during a simple wire transfer. Accordingly, mere tangential effects on financial institutions will not support application of the enhancement.

734 F.3d at 1 86.

Although that language indicates the need for a significant degree of control over the funds at issue , we do not

read it to mean that a financial institution’s having less than the unrestrained right to treat the funds as its own means that crimes against the institution lie outside the reach of the gross receipts adjustment. Here, Vanguard possessed the funds

. Its
control of the m was much more than the tangential control exercised by a bank handling a wire transfer

. See Stinson , 734

F.3d at 186

. In fact, Vanguard’s dominion and control over the

abandoned funds is what allowed Capps to commit his fraud : it was through his employment at Vanguard that he was able to identify and draw checks on abandoned accounts.

Stinson , rightly understood, asks for nuanced fact

finding. T he defendant in that case had a fraudulent scheme in

10 At the time, the provision was U.S.S.G. § 2 B1.1(b)(15)(A); now, it is U.S.S.G. § 2B1.1(b)(17)(A).18 which he set up a sham fund and used investors’ money for a variety of personal business ventures. 734 F.3d at 181

- 82. As part of the fraud, the d efendant entered into agreements with two independent financial advisory firms whereby the firms would refer investors to his sham fund in exchange for referral

fees. Id. at 182. We said that , while some investors exercised

“ individual decisions to inves t with [the sham fund] on the

advice of their investment advisors at each firm [,] ... some of the victim impact statements suggest that [the independent financial advisory firms] retained control over the assets of certain clients and invested in [the sham f und] on their behalf.”

Id. We remanded to the district court because, w hile the funds

from individuals who made the decision to invest should not be considered under the adjustment, “we [we]re unable to conclude definitively that the enhancement d[id] not apply because the record [wa]s unclear as to whether [the independent financial advisory firms] invested any money on

behalf of their clients.” Id. at 187. W e therefore recognized

that a firm that invests client funds can exercise s ufficient

dominion and control over the funds to justify application of the gross receipts adjustment , even though the clients also had

control over those funds.

Capps argues that Vanguard’s control over the funds

here was especially weak because the fund s were due to

escheat. He points to the Supreme Court’s statement in
Delaware v. New York that “[f]unds held by a debtor[, here

, Vanguard, the holder of the funds, ] become subject to escheat because the debtor has no interest in the funds[.]” 507 U.S. 490, 502 (1993). But , if anything, t he fact that the money Capps stole w as due to escheat strengthens the argument that Vanguard exercised the necessary dominion and control over

the m for the gross receipts adjustment to apply

. Delaware v.19 New York focused on which sovereign could lay claim to abandoned property. Id. The observation that the holder of the
property , without an ownership interest in it, does not get to keep it wa s a statement about the relative rights of a sovereign

and the holder of the abandoned property

. It does not mean that, as the holder of funds before they escheat, institutions like Vanguard lack the ability to exercise dominion and control

over them

. On the contrary, Vanguard wa s the only one exercising dominion and control over the abandoned funds at
issue here

, until they escheat ed

. Thus, it was not error

– let alone plain error

– for the Dis trict Court to conclude that the funds were derived from Vanguard.

2. The $1 Million Threshold

Commentary Note 13(A) to money laundering guideline § 2B1.1

, states that “[f]or purposes of [the gross receipts adjustment] , the defendant shall be considered to have derived more than $1,000,000 in gross receipts if the gross receipts to the defendant individually , rather than to all participants, exceeded $1,000,000.” U.S.S.G. § 2B1.1(b)(17)(A) cmt. n.13(A) (emphasis added) . Capps argues that we should remand to the District Court for

clarification of inconsistent statements about whether he met the $1 million threshold on an individual basis

.

The government does not try to say that the District

Court’s comments were cle ar but argues that the Court must
have found that Capps met the threshold because “the loss in this case (which Capps was ordered to repay to Vanguard) is $2,137,580.81. ” (Answering Br. at 21 n.4 .) According to the
government

, “ [t] here is no question that the ‘gross receipts’ in

this case

– not Capps’ personal receipts after dividing the20 proceeds

– was far over $1 million.” ( Id. ) Even if true, that assertion manages to explicitly avoid the relevant question. It ignores the requir ement from the commentary that the

threshold must be applied in terms of what Capps himself

received

, individually.

The District Court’s statements did not answer the relevant question either . During sentencing, the Court said

, “Mr. Capps himself admit ted just now that he took approximately one half of [approximately $2 million] or a million dollars” (App. at 96) (emphasis added), and that Capps

stole “ almost over a million dollars, or receiving a million dollars,” (App. at 97) (emphasis added). Accord ingly, w e will remand so that the District Court can clarify whether the gross receipts that Capps received individually exceeded the million

dollar threshold

.

III. C ONCLUSION

For the foregoing reasons, we will remand for resentencing.