1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0453P (6th C ir.) File Name: 03a04 53p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

M ICHEL LE W IL LI AMS (03-5107); T ANIS HA J ONES W ARD (03-5189); R OBERT K ELLY , III (03-5192), Defenda nts-Appe llants. X - - - -
> , - - - - - - N Nos. 03-5107/ 5189/5192

Appeal from the United States District Court for the We stern Dis trict of T ennesse e at Memphis. No. 02-20151—Julia S. Gibbons, District Judge. Argued and Submitted: October 21, 2003
Decided and Filed: December 23, 2003

Befor e: KEI TH, DAUG

HTREY, a

nd GILMAN , Circuit Judges.

_________________ COUNSEL

ARGU ED: B ruc e I. G rif fey, OFF ICE O F BR UCE IRW IN GRIFFEY, Memphis, Tennessee, for A ppe ll ant s. T rac y L. 2 United States v. Willia ms, et al. Nos. 03-5107/5189/5192

Be rr y, ASSISTANT UNI TED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON B RIEF: Bru ce I. Griffey , OFFICE OF

BRUCE IRWIN

GRIFFEY, Memphis, Tennessee, Mary C. Jermann, OFF ICE OF THE FED ERAL PU BLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, Jerry Stokes, Me

mphis, Tennessee, for Appe llants. Tr acy L. B erry , ASSI S TANT UNITED STATES ATT ORNEY, Me mphis, T ennessee, for Appellee.

_________________

OPINION

_________________ DAMON J. KEITH, Circui t Judge. D efenda

nts-Appe llants Michelle Wi ll iam s (“ Wi ll iam s”) and Ro ber t Ke ll y, III (“Kelly” ) appeal their

sentenc es follow

ing the e ntry of guilt y pleas to identity theft, 18 U.S.C. § 1 028(a)( 7). DefendantAppellant Tanisha Jones Ward (“War d”) appeals her sentence following the entry of

a guilty plea

to identity

theft, 18 U.S.C. § 1028(a)(7), and making a false statement, 18 U .S.C

. § 1001(a)(2). Williams, Kelly, and Ward were involved in a scheme that involved the use of false identify ing information to obtain home loans. The di s trict court found that the enhan ce ment

in § 2B1.1(b)(9)(C)(i) of the 2002 Sentencing Guidelines for

“the unauthorized

transfer or use of a means of identificationun la wf

ul ly t o p ro du ce or ob ta in an y o th er means of identification” applied to Williams’s and Kelly’s cond uct. U NITED S TAT ES S ENTENCI NG G UIDELINES M ANUA L § 2B1.1(b )(9)(C) (i) (200 2). Due t o ex post facto concerns, the districtcourt sentenced Kelly and Ward using the 1998 Sentenc ing Guid elines (in effect at the time of the crime) rather than the 20 02 Sen tencing Guidelines (in effect at the time of sentencing). Williams appeals the application of the § 2B1.1(b)(9)(C)(i) enh ancement. Kelly appeals the use of the 1998 Sen tencing Guidelines, contending that the 2002 SentencingGuidelines should be applied without theNos. 03-5107/5189/5192 United States v. Willia ms, et al. 3

§ 2B1.1(b )(9)(C) (i) enha

ncement

. Ward appeals the district court’s refusal to depart downwar d due to her

family circumst ances, aberrant

behavior, and her r

elative c ulpability compared to the oth e r defen

dants. F or the re asons set forth below, we AF FI RM the sentences of Williams, Kelly, and Ward.

I. FACTUAL BACKGROUND

From onor about September

25, 1998, and continuing to on
or about June 21, 2000, Terrell Green, Marcus Ma rtin, and Thomas Anthony Tay lor provided false identify ing informa ti onto persons who wanted to buy a house under a loanprogram administered by the Fed eral Housing Administration (“FHA”). The data included a social security number, employment information, and salar y information. Purchasers such as Kelly a nd Williams signed loan document s c ontaining the false information and submitted themto Co mmun ity Mort gage Corporation(“CMC”) for the federa lly guaranteed loan s and the C ity o f Memphis, Tennessee Di vision of Housing and C ommunity Developmen t for down payment assistanc e lo ans. On or about May 16, 2000, Williams received loans from CMC and the City of Memphis valued in excess of $59,000. On or about May 19, 2000, Kelly rec eived over $ 90,000 i n loans. Ward acted as the realtor in each of theloans. In addition, on or about June 21, 2000, Ward used a false social security number, which she received from Terrell Green, in order to apply for a F HA loan.

Williams entere d a plea o f guilty to viol ating 18 U.S.C. § 1028(a)(7), through her u se o f Larmont F. White’s social securit y n umber, in order to commit the federal felony vio lations of socia

l securit y f raud and making a

false statement within the juri sdiction of an agency of the United States. On December 2, 2002, Williams filed objections to the presentence report. At

the s entenci

ng hea ring, Will iams argued that the two-point enhancement pu rsuan t to § 2B1.1(b)(9)(C)(i) of the 2002 Sentenc ing Guid elines did not 4 United States v. Willia ms, et al. Nos. 03-5107/5189/5192

apply to her conduct. The government supported the impos iti onof the enhancement because of Williams’s purchas e and use of

someone else’s social security number in order to o btain tw o separate loans. According to the gover nment, the bank l oan numbe r is equi valent to

false identification. Williams argued that the enhanc ement did not apply because she engag ed in a single act - the signing of the loando cum ents cont

aining t he false informat ion. Williams maintained

that she purchased a loan packag e from Mr. Green and that she did not use the social se curity number in

those documents to obtain additional false identification.

After hearing the arg uments of the parties, the district court rejected Williams’s position. Accord ing to the district c ourt, § 2B1.1(b)(9) applied directly to the type o f si tuation Williams presented. The district court stated:

To elabora

te further , with res

pect to the application of the guideline we’ve just been talking about, the court

refers to the guideline itself. The comme ntary applica tion note nine, which refers to the definition of means of identification, wh ich i s a very br oad one, and encompasses a bank loan which we might notordinar

ily think of as being included by

that lang uage, would

note also the Application Notes 7(C)(i) and 7(C)(ii) and then the commentary

background which discusses subsection (B)(9) (C) in some detail. It appears to me that that enhancement does apply

. J.A. at 159-160. Kelly entered a guilty

plea to the use of

the social security number of Samuel Robert De Moy a. In objecting to the presentence investigation report, Kelly argued that

the twopointenhancement fo rmore than minimal planning was not appropriate. OnDecemb er 6, 200 2, Kelly suppleme

nted his objections contending that the probation office erred in using the 1998 Sent encing Guidelines. Kelly contended that theNos. 03-5107/5189/5192 United States v. Willia ms, et al. 5

2002 Sentencing Guidelines should be used, but that the use of the 2002 Sentencing Guidelines shoul d exclude the enhancement pursuant to § 2B1.1(b)(9)(C)( i).

At the se ntenc ing h eari ng, Kelly conceded that the use of another’s social security number created a potential for harm to tha t i ndividual. Nonetheless, Kelly a rgued that the § 2B1.1(b)(9)(C)(i) enhance ment applied only if the loan was inthe name

of the ind

ividual whose socia

l se curity number
was stolen. Ke lly s tressed the fac t that he w as try

ing to get a home loan for

himself, n

ot run a sc am a

nd split with the
mo ne y. Inthe alternative, Kelly argued that, under the 1998 SentencingGuidelines, the enhancement fo r mo re than minimal planning was not appropriate because t he fa cts presented a simple case. The gov ernment supporte d the use of the 1998 Sentencing Guideline s due to ex post fa cto
concer ns. Specific ally , the go vernmen t c onte nded that the
use of the 2002 S ente ncing Guidelines would require the enhancement

proscri bed in § 2B 1.1(b)( 9)(C)(i ) as a result of the commentary ba

ckground to § 2B1.1 and application notes 7(C)(i), 7(C)(ii), and 9 for that guide line s ection. The § 2B1.1(b)(9)(C)(i) enhanc e ment would have put Kelly in a higher guideline range than would be a pplicable under the 1998 SentencingGuidelines, even with the enhancement for more than minimal planning.

Infinding that the 1998 Sentencing Guidelines applied, the districtcourt rejected Kelly ’s attempt to pre v ent the applicationof § 2B1. 1(b)(9) (C)(i) on the basis that Kelly used his own name rather than t he nameof the ind

ividual wh

ose social securi ty

number he appropriated. According to the districtcourt, the co mme ntary applica tion notes and the commentary

background made clear tha t the enhan cement would ap pl y u nder the facts of the case at bar . The district court explained

th at even i f the name was not used, there would still be harm to the credit of the person wh ose so cial security number was used. The distri ct court found that the minimum offense level of 12 would apply in Williams’s case. 6 United States v. Willia ms, et al. Nos. 03-5107/5189/5192

Onor about July 3, 2002, Ward ente red a ple a admittin

g to the use of the social security number of

Allison Cam

pbelland to making a false statement to a department of the U nited States. Unlike Williams and Kelly, Ward u rged the district court to depar t downwar

d from the applica ble guidel ine ran ge by co nte nding that her family circumstances were
ex tr ao rd in ar y, her cri minal conduct was aberrant behavior, andshe was less culpable than some of the other codefenda nts. The government

responded

by asking the

district courtto recognize that the four-level enhanc ement receive d by the organizer of the activity provided adeq

uat e consideration

for the difference betwee n their roles in the criminal conduct. The government also noted that the conduct occurred over a two-y

ear period and that

Ward’s lack of criminal history was alre ady

taken int

o accou nt in determining the guideline rang e.
The district c ourt f

oun d that the

facts of Ward’s c ase did notsupport a downward departure. In re aching its decision, the district cour

t found that: Ward’s family re sponsibilities
wer e not so extraordinary as to suggest the need for a downward

departu re; the im portance of pa ym ent of restitution did not overr

ide the ne ed to ser

ve a ter m of impris onment; Ward was more culpable than the individual defendants who applied for loan s themselv es due to her integral role in the transactions; and the conduct was too repeated

and extensive interms of the period of time in order to constitute aberr a nt behavior. Further, the district court foundthat the aggrega tion of circumstances and factors was not suffic ient to take the case “o ut of

th e h ea rt la nd ” a nd th er eb y ju st if y a downward departure.

II. DISCUSSI ON

Inreview ing a district court's application of the Sentencing Guideline s, we "accept the findings of f act of the district

court unless they

are clearly

erroneous and

. . . give due deference t o the di strict court’s application of the guidelines to theNos. 03-5107/5189/5192 United States v. Willia ms, et al. 7

facts." 18 U.S .C. § 3742( e). In li gh t of B uford v. United States , 532 U.S. 59 , 63-66 (2 001), this court has held that our st andard of review of a district court's application o f provisions of the Sentencing Guidelines to the facts should be treate d defere ntially and should

not be dist

urbed un less clearly erroneous. United States v. Jackson-Randolph , 282 F.3d 3 69, 389-9 0 (6th Cir. 2002) (ho lding tha t the Supre

me Court 's reasoning in Buford le ad s to the use of a deferential standard of review in the application of the Sentencing Guidelines under circumstances involving fact-bound determinations).

A. Section 2B1.1(b)(9)(C)(i) enhance ment
On October

30, 1998, Congress enacted the I dentity Theft and Assumption Deterrence Act of 1998 (“I TADA”), Pu b. L. No. 105-318. The ITADA amende d the fra ud chapte r of title 18 of the United States Code to c reate a new crime prohibiting t he u nlawful use of personal identify ing information, including , but not limi ted to
, names, social security numbers, and cre dit car d numbers. Identity fraud involves the misappropriation of another person’s personal iden tifying

information. Criminals use this information t o establis h credit in their name, run up debts on another person’s account, o r tak e over existing financial accounts. The ITADA directed the

SentencingCommission to “review andamend the Federal sentencing guidelines and the pol ic y statements of the Commission, as appropriate, to provide an appropr iate penalty for e ach off

ense under section 1028 of title 18, United States Code, as amend ed by this Act.” Ide ntity Theft and Assumption DeterrenceAct of 1998, Pub. L. No. 105-318 § 4(a), 112 Stat. 30 07 (codif ied in 28 U .S.C. § 994 note).

Subsect ion 2B1.1(b)(9)(C) of the Sentencing G uidelines
was implemented pursuant to Section 4 of the ITADA. I t focuses on an a ggravated from of ide ntity theft known as “affirmative identi ty t heft” or “breeding,” in which a 8 United States v. Willia ms, et al. Nos. 03-5107/5189/5192

defendant uses anoth er individ

ual’s na me, socia l securit y number, or some other

form of identification (the “means of identification”) to “breed” (i.e., pro duce or obtain) new or additional forms of identification. U N I TED S TATES S ENTE NCIN G G UIDEL INE S M ANUA L § 2B1.1, cmt. background (200 2). Section 2B.1.1(b)(9)(C)(i) of the Sentencing Guidelines authorizes a two-level increase in a de fenda nt’s base offense

level in c ases in wh

ich the de fendant h as unlawfu lly used any

means of

identific a tion without authorization to produce or obtain a ny o th er means of identification. U

NITED S TAT ES S ENTEN CI NG G UIDELI NES M ANUA L § 2B1.1(b)(9)(C)(i) (2002). I f after the two-level increas e, the o ffense level is less than level 12, then the offense level is to be increased to level 12. Id. The minimum offense level of 12 acco unts for the seriou sness of t he offe nse as well as the diffi culty

in detec ting the

crimeprior to c ertain harms occurr

ing, suc h as a damaged c

redit rati ng or an i nability to obtain a loan. U NITED S TAT ES S EN TE NCIN G G UIDELI

NES M ANUA L § 2B1.1, cmt. background (2002). The min i mum offense level also accounts for the non-moneta ry harm associated

with these

typ es of off

enses, such as ha

rm to the individua

l’s repu tation or c redit ratin g, inconvenience, a nd other difficulties resulting from the offense. Id.

The sente nci ng cour

t found tha

t the § 2B 1.1(b)( 9)(C)(i )
en hancement

ap pl ie d b ec au se Wi ll ia ms an d K el ly u sed a m ean s of identification, i.e., a social security number of another, to obtain

another means of identification, i.e., a bank loannumber. Appellants arg ue t hat the enhancement was inapplic able to their c onduct. Sp ecifica lly, Willi am s argues t hat the bank l oan numbe

r is not the

equivale nt of a fa ls e identification, and that she purchased the entire loan package, nota soci al security

number. T

hus, acc ording t

o Williams, the social s ecuri ty number in those documents was not used to obtain additional false identification. Kelly arg ues that the enhancement

does not apply to his conduct bec ause he obtained the bank l oan in his own name. Each of these arguments will be addressed in turn.Nos. 03-5107/5189/5192 United States v. Willia ms, et al. 9

“‘Means of identification’ has the meaning given that term in18 U.S.C. § 1028(d)(4), except that such means of identificationshall be of an a ctual ( i.e. , not fictitious individual), other than the defendant or a per s on for whose conduct the defendant is accountable under § 1B 1.3 (Relevant Conduct)

. ” U

NITED S TAT ES S ENTENCI NG G UIDELI

NES M ANUAL § 2B1.1, cmt. n. 7(A) (2002 ). Under 18 U.S.C. § 1028(d)(4), “the term ‘means of identi fication’ means any
name or number t

hat may be used, alone or in conjunction with any other information , to identify a specific individual.” 18 U.S.C. 1028(d)(3) (emphasis added). “Means of identification” includes, int er alia, a name, soc ial secu rity
num ber, unique electronic identification number, o r telecommunication

identifying infor

mation or access device
as de finedin 18 U.S.C. § 1029(e ). 18 U.S.C

. § 1028(d)(3)(A)-(D). “[T]heterm ‘ac cess device’ means any

. . . account number . . . or other means of account access that
can be used, alone or in conj un ction with another access device, to obtain money , goods, se rvices, or any other thing of value, or that can be used to initiate a transfer of f unds . . .” 18 U.S.C. § 1029(e)(1).

Inproviding g

uidance for the applicability of § 2B1.1(b)(9), the Sentenci

ng Commiss ion set forth example s of condu ct to whichthe subsection would apply. The first example, which is most applicab l e to this situation, provides for the imposition of the enha ncement when “[a] defendant obtains
anin dividual’ s name an d social s ecurity

number f

rom a source

. . . and obtains a bank loan in that individual’s name. Inthi s exa

mple, the account number of the bank loan is the other means of

identific ation tha

t has been obtained

u nlawfully.”

U NITED S TAT ES S ENTENCI NG G UIDELI NE S M ANUAL § 2B1.1, cmt. n.7(C)( ii) (2002). In the second example, a defendant obtains an individual’s pe rson al information, such as a name and address, and “applies f or, obtains, and subse quently us e s a credit card in that indiv id ual’s name. In this example, the credit car d is the other means of ide ntifi cation that has been obtained 10 United States v. Willia ms, et al. Nos. 03-5107/5189/5192

unlawfully.”

U NITED S TAT ES S E NTE NCIN G G UIDELI NES M ANUA L § 2B1.1, cmt. n. 7(C)(ii)(II ) (2002).

The Sentenci

ng Guide lines also

set forth

e xamples of conduct to which subsection (b)(9)(C)(i) does not apply . The first example involves a defendant’s use of a credit car d from
a stolen wallet “only to make a purchase.” U NITED S TATES S ENTENCI

NG G UIDELINES M AN UAL § 2B1.1, cmt. n. 7(C)( iii)( I). The Sente

ncing G uideline s make cl ear tha

t in that case, the defendant “has not used thestolen cr edit car d to obtain another means of identification.” Id. Th e second exampleapplies to a defendant who “ for ges another individual’s signature to cash a stolen check. Forging a

nother in dividu al’s signature is not producing another means of identification.” U NITED S TAT ES S ENTENCI NG G UIDELI

NES M ANUA L § 2B1.1, cmt. n. 7(C)(iii)(II ).

Inthis case, Williams an d Kel ly each use d the social security number of someone else to ob tain home loan s in their
ownnames. Kelly ar

gues that the ba

nkloan number is not another “means of identification.” As a bank loa n number i s anac co un t n um be r t ha t c an be us ed to ob ta in mo ne y, however, it is a “me ans of ide ntificat ion” as that ter m is defined in 18 U.S.C. § 1028. Further, the first example in the commentary

specifically pr

ov ides that “the account number of the bank loan is the other means of identification that has been obtained unl awfully.” U

NITED S TAT ES S ENTENCI NG G UIDELI

NES M ANUA L § 2B1.1(

b)(9)( C)(i), cmt. n. 7(C)(ii)(I). Ac co rd in gl y, Kelly’s arg

ument that a bank loan number is not a “mean s of ident

ification” lacks

merit.

Wi lliams and Kelly both arg ue that their situationi s different from the one in t

he examp le about the bank loan because they obta ined the loans in their own names and, therefore, did not use the social security numbe r and name of
someone e lse. Thus, accord ing to Willi ams and K

elly , their situation is more analogous to making a purch ase with a stolen cr edit card. Whi le the de fendant inthe example usedNos. 03-5107/5189/5192 United States v. Willia ms, et al. 11

two means of identification in order to obtain the bank loan, the definition of “means of identification” p ro vided in 18 U.S.C. § 1028 doe s not requ ire that a name and social se curity
num ber be used together in order for them to bec o me a “means of identification.” To the contrary , it states that any name or number may

be used “ alone or in conju nction with anyother information , to id ent ify a spec ific individual.” 18 U.S.C. 1028(d)(3) (empha sis ad ded). A s ocial se curity number is clear ly defined as a “means of identification” and, thus, its use to obtain aloan fal l s within the scope of the statute and the Sentencing

Guidel ines even if another form was not used. 18 U.S.C. § 1028(d)(3). Further, unlike the use of a stolen credit card to make a purchase, obtaining a bank loan involves the opening of a new line of credit. Ope ning a new line of credit, a s opposed to using a line of credit tha

t alread y exists, is what distinguishes the first set of examp les, whe re the e nhance ment appl ies, fromthe second

set of examples, where the enhancement does
no tapply. I

n the examples where the enhancement appl ies
, a bank loan that did not otherwise exist is created and a new credit card is obtained. In the exam ples where the enhanc eme nt does not apply, the def endant used an existing
c redit card to make a purchase and ca shed a check from an existing bank account. Thus, while the use of someone’s credit card to make apurchase is a punishable offense, the nature of the harm is different from that which results fro m using someone’s iden tify ing information to establish new credit.

Fi na ll y, Williams’s argument that she bought a loan package and not a social security number and, thus, that her conduct is n ot within th e purvie w of the e

nhance ment, is similarly without merit. Whether Williams bought the social security numb er as pa rt of a package that was used to procure
a loan or bought the social security number a nd used it t

o fill outa loan app lication is irrelevant. The harm to the person whosesocial se curity

number w as use d is t he same i n both 12 United States v. Willia ms, et al. Nos. 03-5107/5189/5192

inst ances. Williams knew that the loan package includ ed a social security number othe r than her own and

that the social security number would be used to obtain the loan. A cc or di ng ly, the sente

ncing c ourt did no t err in f inding tha t the § 2B1.1(b)(9)(C)(i) enha ncement applied to Williams’s and Kelly ’s conduc

t.

B. Ex post facto considerations

If a district court

determines that use of the version of the SentencingGuidelines in effect on the dat e of sentencing would violate the ex post facto clause, th e vers ion of the SentencingGuidelines in ef f ect on the date the offense of convictionwas committed should be used. U N ITED S TATES S ENTENCI

NG G UIDELINES M ANUA L § 1B1.11(b)(1) (2002). In this case, Kelly

was sentenced on January 17, 2003. The facts revealed that Kelly used the fr

audulent social security

number when he applied for

a home loan on or

about May 22, 2000. The district c ourt appl ied the 19 98 Sentencing Gu idelines t o Ke ll y’ s co nduct because it determined that the 2002 SentencingGuideline s would re sult in a higher offe

nse level. The court’s finding was based on the fact t hat the § 2B1.1(b)(9)(C)( i) enh ancement would apply if the 2002 SentencingGuidelines were utilized. With the enhanceme nt, the adjusted offens e level using the 2002 Sentencing Gui d elines is 12 while

the 1998 Se

ntencing Guideline s results inan offe

nse leve l of 9. As previo usl y discussed, the § 2B1.1(b )(9)(C) (i) enha

ncement was appl icable

to Kelly’s
c ondu ct. Accordingly , the district court did not err in using the 1998 SentencingGuidelines due to ex post facto concer ns.
C. District

court’s refusa l to gra nt Ward’s d

own ward departure

Ge ne ra ll y, we will not “review a district court’s refusa l to exercise its discretion to grant a downward departure .” United States v. Ridge , 329 F.3d 535, 544 (6th Cir. 2003)

. We do have jurisdiction, however, to review a dist rict c ourt'sNos. 03-5107/5189/5192 United States v. Willia ms, et al. 13

belief “that it lacked an y a

uthority to depar t downwar

d as a matter of law.” Id. (quot ing United States v. Ebolum , 72 F.3d 3 5, 37 (6th Cir.1995)). We review de novo whether the districtcourt was aware of its authority to make a downward departure, examining the transcript of the sentencing hearing to make this d

etermin at ion. Id. We presume that the sentencingcourt ha s proper ly exercised its discretion

when it decides that a departure is not warranted, as “there

is no duty
on the trial judg e to state affirma tively that he kn

ows h e possesses the power

to ma ke a downward departure, but declines to do so.” United Sta tes v. By rd , 53 F. 3d 144, 145 (6th Cir.1995).

Inits introduction to the Sentencing Gui de lines, the SentencingCommission states that it “intends the sentencing courts to treat each guideline as car ving out a ‘h eartland, ’ a set of typical cases embody

ing the conduct that

each guideline describes. When a

court finds an

atypical ca se, one to which
a particular guideline linguistically applies but

where conduct
s ignific antly

differs from the norm, the court may conside r whether a departure is warranted.” U NITED S TATES S ENTENCI

NG G UIDELINES M ANUA L ch. 1, pt. A, s u bpt. 4(b) (2002). B y statut e, a district court may sentence outside the prescribed

guideline range if “ther

e exists an aggravating or mitigating circumstance of a ki nd, or to a degree, not adequa tely taken int

o conside

ratio n b y the Sentencing Commission in formulating the guidelines that should re sult ina sentence different from that des cri bed.” 18 U.S.C. § 3553(b); U

N ITE D S TAT ES S ENTENCI NG G UIDELI

NES M ANUA L § 5K2.0 (2002).

Inthis case, a de novo review of the transcript from Ward’s sentencinghearing

reveal s that t

he d istrict c ourt explic itly recognized

that it poss essed the disc re tion to depart down ward. The government argue d that “while the co ur t does have the ability to give a downw ard depa rture in t his case, that the conduct is not outside the heartland.” J.A. at 250. After

defense counsel’s response to the gove rnment’s 14 United States v. Willia ms, et al. Nos. 03-5107/5189/5192

argume nt, Judge Gib

bons stated: “

You know, I don ’t reall

y have a lot of fl exibility

inthis case. And that doesn’t mean I don’t recognize my

abi l ity to depart downwar d, because I do.” J.A. at 251. After considerat ion of all of Ward’s argume nts for downward d

epartur e, Judge Gibbons sta

ted:

The factors are just not here for a downwa rd de pa rture that take this case out of the norm of cases. A number of the factors that

you’ve mentione d are al

ready covere d in the guidelines, a number

of other s. The fa

cts in this case j ust don’t wa

rrant a downwar

d depart ure on tha

t basis, even when all the factors are c onsidered together.

J.A. at 255. As

the sente

ncing c ourt was aware o f its authority to depart, Ward lacks a bas is to challenge the sentencingcourt’s denial of h er motion for a downward departure.

CONCLUSION

For the foregoing reasons, we AFFIRM the sentences of Williams, Kelly, and Ward.