1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0453P (6th Cir.)

File Name: 03a0453p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICHELLE WILLIAMS

(03-5107); TANISHA JONES

WARD (03-5189); ROBERT

KELLY, III (03-5192),

Defendants-Appellants.

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Nos. 03-5107/

5189/5192

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 02-20151—Julia S. Gibbons, District Judge.

Argued and Submitted: October 21, 2003

Decided and Filed: December 23, 2003 

Before: KEITH, DAUGHTREY, and GILMAN, Circuit

Judges.

_________________

COUNSEL

ARGUED: Bruce I. Griffey, OFFICE OF BRUCE IRWIN

GRIFFEY, Memphis, Tennessee, for Appellants. Tracy L.

2 United States v.

Williams, et al.

Nos. 03-5107/5189/5192

Berry, ASSISTANT UNITED STATES ATTORNEY,

Memphis, Tennessee, for Appellee. ON BRIEF: Bruce I.

Griffey, OFFICE OF BRUCE IRWIN GRIFFEY, Memphis,

Tennessee, Mary C. Jermann, OFFICE OF THE FEDERAL

PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF

TENNESSEE, Memphis, Tennessee, Jerry Stokes, Memphis,

Tennessee, for Appellants. Tracy L. Berry, ASSISTANT

UNITED STATES ATTORNEY, Memphis, Tennessee, for

Appellee.

_________________

OPINION

_________________

DAMON J. KEITH, Circuit Judge. Defendants-Appellants

Michelle Williams (“Williams”) and Robert Kelly, III

(“Kelly”) appeal their sentences following the entry of guilty

pleas to identity theft, 18 U.S.C. § 1028(a)(7). DefendantAppellant Tanisha Jones Ward (“Ward”) 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 identifying information

to obtain home loans. The district court found that the

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

Guidelines for “the unauthorized transfer or use of a means of

identification unlawfully to produce or obtain any other

means of identification” applied to Williams’s and Kelly’s

conduct. UNITED STATES SENTENCING GUIDELINES MANUAL

§ 2B1.1(b)(9)(C)(i) (2002). Due to ex post facto concerns, the

district court sentenced Kelly and Ward using the 1998

Sentencing Guidelines (in effect at the time of the crime)

rather than the 2002 Sentencing Guidelines (in effect at the

time of sentencing). Williams appeals the application of the

§ 2B1.1(b)(9)(C)(i) enhancement. Kelly appeals the use of

the 1998 Sentencing Guidelines, contending that the 2002

Sentencing Guidelines should be applied without the
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Williams, et al.

3

§ 2B1.1(b)(9)(C)(i) enhancement. Ward appeals the district

court’s refusal to depart downward due to her family

circumstances, aberrant behavior, and her relative culpability

compared to the other defendants. For the reasons set forth

below, we AFFIRM the sentences of Williams, Kelly, and

Ward.

I. FACTUAL BACKGROUND

From on or about September 25, 1998, and continuing to on

or about June 21, 2000, Terrell Green, Marcus Martin, and

Thomas Anthony Taylor provided false identifying

information to persons who wanted to buy a house under a

loan program administered by the Federal Housing

Administration (“FHA”). The data included a social security

number, employment information, and salary information.

Purchasers such as Kelly and Williams signed loan

documents containing the false information and submitted

them to Community Mortgage Corporation (“CMC”) for the

federally guaranteed loans and the City of Memphis,

TennesseeDivision of Housing and CommunityDevelopment

for down payment assistance loans. 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 received over $90,000 in loans. Ward acted as

the realtor in each of the loans. 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 FHA loan.

Williams entered a plea of guilty to violating 18 U.S.C.

§ 1028(a)(7), through her use of Larmont F. White’s social

security number, in order to commit the federal felony

violations of social security fraud and making a false

statement within the jurisdiction of an agency of the United

States. On December 2, 2002, Williams filed objections to the

presentence report. At the sentencing hearing, Williams

argued that the two-point enhancement pursuant to

§ 2B1.1(b)(9)(C)(i) of the 2002 SentencingGuidelines did not

4 United States v.

Williams, et al.

Nos. 03-5107/5189/5192

apply to her conduct. The government supported the

imposition of the enhancement because of Williams’s

purchase and use of someone else’s social security number in

order to obtain two separate loans. According to the

government, the bank loan number is equivalent to false

identification. Williams argued that the enhancement did not

apply because she engaged in a single act - the signing of the

loan documents containing the false information. Williams

maintained that she purchased a loan package from Mr. Green

and that she did not use the social security number in those

documents to obtain additional false identification. 

After hearing the arguments of the parties, the district court

rejected Williams’s position. According to the district court,

§ 2B1.1(b)(9) applied directly to the type of situation

Williams presented. The district court stated:

To elaborate further, with respect to the application of the

guideline we’ve just been talking about, the court refers

to the guideline itself. The commentary application note

nine, which refers to the definition of means of

identification, which is a very broad one, and

encompasses a bank loan which we might not ordinarily

think of as being included by that language, 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 DeMoya. In objecting to the

presentence investigation report, Kelly argued that the twopoint enhancement for more than minimal planning was not

appropriate. On December 6, 2002, Kelly supplemented his

objections contending that the probation office erred in using

the 1998 Sentencing Guidelines. Kelly contended that the
Nos. 03-5107/5189/5192 United States v.

Williams, et al.

5

2002 Sentencing Guidelines should be used, but that the use

of the 2002 Sentencing Guidelines should exclude the

enhancement pursuant to § 2B1.1(b)(9)(C)(i).

At the sentencing hearing, Kelly conceded that the use of

another’s social security number created a potential for harm

to that individual. Nonetheless, Kelly argued that the

§ 2B1.1(b)(9)(C)(i) enhancement applied only if the loan was

in the name of the individual whose social security number

was stolen. Kelly stressed the fact that he was trying to get a

home loan for himself, not run a scam and split with the

money. In the alternative, Kelly argued that, under the 1998

Sentencing Guidelines, the enhancement for more than

minimal planning was not appropriate because the facts

presented a simple case. The government supported the use

of the 1998 Sentencing Guidelines due to ex post facto

concerns. Specifically, the government contended that the

use of the 2002 Sentencing Guidelines would require the

enhancement proscribed in § 2B1.1(b)(9)(C)(i) as a result of

the commentary background to § 2B1.1 and application notes

7(C)(i), 7(C)(ii), and 9 for that guideline section. The

§ 2B1.1(b)(9)(C)(i) enhancement would have put Kelly in a

higher guideline range than would be applicable under the

1998 Sentencing Guidelines, even with the enhancement for

more than minimal planning. 

In finding that the 1998 Sentencing Guidelines applied, the

district court rejected Kelly’s attempt to prevent the

application of § 2B1.1(b)(9)(C)(i) on the basis that Kelly used

his own name rather than the name of the individual whose

social security number he appropriated. According to the

district court, the commentary application notes and the

commentary background made clear that the enhancement

would apply under the facts of the case at bar. The district

court explained that even if the name was not used, there

would still be harm to the credit of the person whose social

security number was used. The district court found that the

minimum offense level of 12 would apply in Williams’s case.

6 United States v.

Williams, et al.

Nos. 03-5107/5189/5192

On or about July 3, 2002, Ward entered a plea admitting to

the use of the social security number of Allison Campbell and

to making a false statement to a department of the United

States. Unlike Williams and Kelly, Ward urged the district

court to depart downward from the applicable guideline range

by contending that her family circumstances were

extraordinary, her criminal conduct was aberrant behavior,

and she was less culpable than some of the other codefendants. The government responded by asking the district

court to recognize that the four-level enhancement received

by the organizer of the activity provided adequate

consideration for the difference between their roles in the

criminal conduct. The government also noted that the

conduct occurred over a two-year period and that Ward’s lack

of criminal history was already taken into account in

determining the guideline range. 

The district court found that the facts of Ward’s case did

not support a downward departure. In reaching its decision,

the district court found that: Ward’s family responsibilities

were not so extraordinary as to suggest the need for a

downward departure; the importance of payment of restitution

did not override the need to serve a term of imprisonment;

Ward was more culpable than the individual defendants who

applied for loans themselves due to her integral role in the

transactions; and the conduct was too repeated and extensive

in terms of the period of time in order to constitute aberrant

behavior. Further, the district court found that the

aggregation of circumstances and factors was not sufficient to

take the case “out of the heartland” and thereby justify a

downward departure. 

II. DISCUSSION

In reviewing a district court's application of the Sentencing

Guidelines, we "accept the findings of fact of the district court

unless they are clearly erroneous and . . . give due deference

to the district court’s application of the guidelines to the
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Williams, et al.

7

facts." 18 U.S.C. § 3742(e). In light of Buford v. United

States, 532 U.S. 59, 63-66 (2001), this court has held that our

standard of review of a district court's application of

provisions of the Sentencing Guidelines to the facts should be

treated deferentially and should not be disturbed unless

clearly erroneous. United States v. Jackson-Randolph, 282

F.3d 369, 389-90 (6th Cir.2002) (holding that the Supreme

Court's reasoning in Buford leads 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) enhancement

On October 30, 1998, Congress enacted the Identity Theft

and Assumption Deterrence Act of 1998 (“ITADA”), Pub. L.

No. 105-318. The ITADA amended the fraud chapter of title

18 of the United States Code to create a new crime

prohibiting the unlawful use of personal identifying

information, including, but not limited to, names, social

security numbers, and credit card numbers. Identity fraud

involves the misappropriation of another person’s personal

identifying information. Criminals use this information to

establish credit in their name, run up debts on another

person’s account, or take over existing financial accounts. 

The ITADA directed the Sentencing Commission to “review

and amend the Federal sentencing guidelines and the policy

statements of the Commission, as appropriate, to provide an

appropriate penalty for each offense under section 1028 of

title 18, United States Code, as amended by this Act.”

Identity Theft and Assumption Deterrence Act of 1998, Pub.

L. No. 105-318 § 4(a), 112 Stat. 3007 (codified in 28 U.S.C.

§ 994 note). 

 Subsection 2B1.1(b)(9)(C) of the Sentencing Guidelines

was implemented pursuant to Section 4 of the ITADA. It

focuses on an aggravated from of identity theft known as

“affirmative identity theft” or “breeding,” in which a

8 United States v.

Williams, et al.

Nos. 03-5107/5189/5192

defendant uses another individual’s name, social security

number, or some other form of identification (the “means of

identification”) to “breed” (i.e., produce or obtain) new or

additional forms of identification. UNITED STATES

SENTENCING GUIDELINES MANUAL § 2B1.1, cmt. background

(2002). Section 2B.1.1(b)(9)(C)(i) of the Sentencing

Guidelines authorizes a two-level increase in a defendant’s

base offense level in cases in which the defendant has

unlawfully used any means of identification without

authorization to produce or obtain any other means of

identification. UNITED STATES SENTENCING GUIDELINES

MANUAL § 2B1.1(b)(9)(C)(i) (2002). If after the two-level

increase, the offense level is less than level 12, then the

offense level is to be increased to level 12. Id. The minimum

offense level of 12 accounts for the seriousness of the offense

as well as the difficulty in detecting the crime prior to certain

harms occurring, such as a damaged credit rating or an

inability to obtain a loan. UNITED STATES SENTENCING

GUIDELINES MANUAL § 2B1.1, cmt. background (2002). The

minimum offense level also accounts for the non-monetary

harm associated with these types of offenses, such as harm to

the individual’s reputation or credit rating, inconvenience, and

other difficulties resulting from the offense. Id.

The sentencing court found that the § 2B1.1(b)(9)(C)(i)

enhancement applied because Williams and Kelly used a

means of identification, i.e., a social security number of

another, to obtain another means of identification, i.e., a bank

loan number. Appellants argue that the enhancement was

inapplicable to their conduct. Specifically, Williams argues

that the bank loan number is not the equivalent of a false

identification, and that she purchased the entire loan package,

not a social security number. Thus, according to Williams,

the social security number in those documents was not used

to obtain additional false identification. Kelly argues that the

enhancement does not apply to his conduct because he

obtained the bank loan in his own name. Each of these

arguments will be addressed in turn.
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Williams, et al.

9

“‘Means of identification’ has the meaning given that term

in 18 U.S.C. § 1028(d)(4), except that such means of

identification shall be of an actual (i.e., not fictitious

individual), other than the defendant or a person for whose

conduct the defendant is accountable under § 1B1.3 (Relevant

Conduct).” UNITED STATES SENTENCING GUIDELINES

MANUAL § 2B1.1, cmt. n. 7(A) (2002). Under 18 U.S.C.

§ 1028(d)(4), “the term ‘means of identification’ means any

name or number that 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, inter alia, a name, social security

number, unique electronic identification number, or

telecommunication identifying information or access device

as defined in 18 U.S.C. § 1029(e). 18 U.S.C.

§ 1028(d)(3)(A)-(D). “[T]he term ‘access device’ means any

. . . account number . . . or other means of account access that

can be used, alone or in conjunction with another access

device, to obtain money, goods, services, or any other thing

of value, or that can be used to initiate a transfer of funds . . .”

18 U.S.C. § 1029(e)(1). 

In providing guidance for the applicability of § 2B1.1(b)(9),

the Sentencing Commission set forth examples of conduct to

which the subsection would apply. The first example, which

is most applicable to this situation, provides for the

imposition of the enhancement when “[a] defendant obtains

an individual’s name and social security number from a

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

In this example, the account number of the bank loan is the

other means of identification that has been obtained

unlawfully.” UNITED STATES SENTENCING GUIDELINES

MANUAL § 2B1.1, cmt. n.7(C)(ii) (2002). In the second

example, a defendant obtains an individual’s personal

information, such as a name and address, and “applies for,

obtains, and subsequently uses a credit card in that

individual’s name. In this example, the credit card is the

other means of identification that has been obtained

10 United States v.

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Nos. 03-5107/5189/5192

unlawfully.” UNITED STATES SENTENCING GUIDELINES

MANUAL § 2B1.1, cmt. n. 7(C)(ii)(II) (2002). 

The Sentencing Guidelines also set forth examples of

conduct to which subsection (b)(9)(C)(i) does not apply. The

first example involves a defendant’s use of a credit card from

a stolen wallet “only to make a purchase.” UNITED STATES

SENTENCING GUIDELINES MANUAL § 2B1.1, cmt. n.

7(C)(iii)(I). The Sentencing Guidelines make clear that in

that case, the defendant “has not used the stolen credit card to

obtain another means of identification.” Id. The second

example applies to a defendant who “forges another

individual’s signature to cash a stolen check. Forging another

individual’s signature is not producing another means of

identification.” UNITED STATES SENTENCING GUIDELINES

MANUAL § 2B1.1, cmt. n. 7(C)(iii)(II). 

In this case, Williams and Kelly each used the social

security number of someone else to obtain home loans in their

own names. Kelly argues that the bank loan number is not

another “means of identification.” As a bank loan number is

an account number that can be used to obtain money,

however, it is a “means of identification” as that term is

defined in 18 U.S.C. § 1028. Further, the first example in the

commentary specifically provides that “the account number

of the bank loan is the other means of identification that has

been obtained unlawfully.” UNITED STATES SENTENCING

GUIDELINESMANUAL § 2B1.1(b)(9)(C)(i), cmt. n. 7(C)(ii)(I).

Accordingly, Kelly’s argument that a bank loan number is not

a “means of identification” lacks merit.

Williams and Kelly both argue that their situation is

different from the one in the example about the bank loan

because they obtained the loans in their own names and,

therefore, did not use the social security number and name of

someone else. Thus, according to Williams and Kelly, their

situation is more analogous to making a purchase with a

stolen credit card. While the defendant in the example used
Nos. 03-5107/5189/5192 United States v.

Williams, et al.

11

two means of identification in order to obtain the bank loan,

the definition of “means of identification” provided in 18

U.S.C. § 1028 does not require that a name and social security

number be used together in order for them to become a

“means of identification.” To the contrary, it states that any

name or number 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). A social security

number is clearly defined as a “means of identification” and,

thus, its use to obtain a loan falls within the scope of the

statute and the Sentencing Guidelines 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. Opening a new line of credit, as opposed to

using a line of credit that already exists, is what distinguishes

the first set of examples, where the enhancement applies,

from the second set of examples, where the enhancement does

not apply. In the examples where the enhancement applies,

a bank loan that did not otherwise exist is created and a new

credit card is obtained. In the examples where the

enhancement does not apply, the defendant used an existing

credit card to make a purchase and cashed a check from an

existing bank account. Thus, while the use of someone’s

credit card to make a purchase is a punishable offense, the

nature of the harm is different from that which results from

using someone’s identifying information to establish new

credit.

Finally, Williams’s argument that she bought a loan

package and not a social security number and, thus, that her

conduct is not within the purview of the enhancement, is

similarly without merit. Whether Williams bought the social

security number as part of a package that was used to procure

a loan or bought the social security number and used it to fill

out a loan application is irrelevant. The harm to the person

whose social security number was used is the same in both

12 United States v.

Williams, et al.

Nos. 03-5107/5189/5192

instances. Williams knew that the loan package included a

social security number other than her own and that the social

security number would be used to obtain the loan.

Accordingly, the sentencing court did not err in finding that

the § 2B1.1(b)(9)(C)(i) enhancement applied to Williams’s

and Kelly’s conduct.

B. Ex post facto considerations

 If a district court determines that use of the version of the

Sentencing Guidelines in effect on the date of sentencing

would violate the ex post facto clause, the version of the

Sentencing Guidelines in effect on the date the offense of

conviction was committed should be used. UNITED STATES

SENTENCING GUIDELINES MANUAL § 1B1.11(b)(1) (2002). In

this case, Kelly was sentenced on January 17, 2003. The facts

revealed that Kelly used the fraudulent social security number

when he applied for a home loan on or about May 22, 2000.

The district court applied the 1998 Sentencing Guidelines to

Kelly’s conduct because it determined that the 2002

Sentencing Guidelines would result in a higher offense level.

The court’s finding was based on the fact that the

§ 2B1.1(b)(9)(C)(i) enhancement would apply if the 2002

Sentencing Guidelines were utilized. With the enhancement,

the adjusted offense level using the 2002 Sentencing

Guidelines is 12 while the 1998 Sentencing Guidelines results

in an offense level of 9. As previously discussed, the

§ 2B1.1(b)(9)(C)(i) enhancement was applicable to Kelly’s

conduct. Accordingly, the district court did not err in using

the 1998 Sentencing Guidelines due to ex post facto concerns.

C. District court’s refusal to grant Ward’s downward

departure

Generally, we will not “review a district court’s refusal 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 district court's
Nos. 03-5107/5189/5192 United States v.

Williams, et al.

13

belief “that it lacked any authority to depart downward as a

matter of law.” Id. (quoting United States v. Ebolum, 72 F.3d

35, 37 (6th Cir.1995)). We review de novo whether the

district court was aware of its authority to make a downward

departure, examining the transcript of the sentencing hearing

to make this determination. Id. We presume that the

sentencing court has properly exercised its discretion when it

decides that a departure is not warranted, as “there is no duty

on the trial judge to state affirmatively that he knows he

possesses the power to make a downward departure, but

declines to do so.” United States v. Byrd, 53 F.3d 144, 145

(6th Cir.1995).

In its introduction to the Sentencing Guidelines, the

Sentencing Commission states that it “intends the sentencing

courts to treat each guideline as carving out a ‘heartland,’ a

set of typical cases embodying the conduct that each guideline

describes. When a court finds an atypical case, one to which

a particular guideline linguistically applies but where conduct

significantly differs from the norm, the court may consider

whether a departure is warranted.” UNITED STATES

SENTENCING GUIDELINES MANUAL ch. 1, pt. A, subpt. 4(b)

(2002). By statute, a district court may sentence outside the

prescribed guideline range if “there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result

in a sentence different from that described.” 18 U.S.C.

§ 3553(b); UNITED STATES SENTENCING GUIDELINES

MANUAL § 5K2.0 (2002). 

In this case, a de novo review of the transcript from Ward’s

sentencing hearing reveals that the district court explicitly

recognized that it possessed the discretion to depart

downward. The government argued that “while the court

does have the ability to give a downward departure in this

case, that the conduct is not outside the heartland.” J.A. at

250. After defense counsel’s response to the government’s

14 United States v.

Williams, et al.

Nos. 03-5107/5189/5192

argument, Judge Gibbons stated: “You know, I don’t really

have a lot of flexibility in this case. And that doesn’t mean I

don’t recognize my ability to depart downward, because I

do.” J.A. at 251. After consideration of all of Ward’s

arguments for downward departure, Judge Gibbons stated: 

The factors are just not here for a downward departure

that take this case out of the norm of cases. A number of

the factors that you’ve mentioned are already covered in

the guidelines, a number of others. The facts in this case

just don’t warrant a downward departure on that basis,

even when all the factors are considered together. 

J.A. at 255. As the sentencing court was aware of its

authority to depart, Ward lacks a basis to challenge the

sentencing court’s denial of her motion for a downward

departure. 

CONCLUSION

For the foregoing reasons, we AFFIRM the sentences of

Williams, Kelly, and Ward.