F ile Nam e: 11a0454n.06
NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION
No. 10-5055
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNITED STAT ES O F AMERICA,
P laintif f-App ellee,

v. STE VEN G ILMORE,
Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM THE UNITED STAT ES DIS TRICT COURT F OR THE MIDDLE DISTRICT OF TENNESS EE

Before: K

EITH , GIBBONS, and WHITE , Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Steven Gilmore pled gu i lty to ag g ravated identity theft and acc ess device fra ud. He appea ls his sentenc e of forty -two months’ imprisonment. Gilmore cl aim s that the district court improperly calc ulated his g uidelines rang e by assessing a six teen- level i n cr ease in acc ordanc e with § 2B1.1 of the United States Sentencing Guidelines; he
argues that this incre ase was improperly assessed beca use he made no unauthorized char g es with the

acc ess device s he stole. For th e re as o ns discussed below, we aff irm the sentenc e imposed by the district court. I

. I n Dec ember 2007, police in Har tsvill e, Tenne ssee, rec eived a complaint from an individual who stated that his deb i t car d had been used without his permission. I nvestig ating office rs subsequently interviewe d Anthony Michael At k i n s , who had been previously convicted of acc ess device fra ud. Atkins confe ssed that he had improperly used the debit car d; he also said that Gilmore,

an acqua intance, had provided him with the nece ssary persona l identification information to commit

- 1 -No. 10-5055

United States v. Gilmore

the identity theft. Atkins ag ree d to cooper ate with law enfor ceme nt’s investigation into Gilmore. 1 After a series of controlled purcha ses, Gilmore ag ree d to sell his complete databa se of information
to an underc over Tenne ssee Bur eau of I nvestig ation ag ent in exchang e for $2,800. After completion of the transac tion, Gilmore was arr ested. An analy sis of the data set reve aled that it contained a total of 2,747 acc ess device s: 1,143 stolen Social Security numbers and 1 , 6 0 4 stolen bank acc ount numbers. Gilmore subse quently confe ssed to the cr ime and coope rate d with authorities. A ten-c ount indictment was filed ag ainst Gilmore, cha rg ing him with six counts (Counts 1 throug h 6) of unlawfully transfe rr i n g identification information, in violation of 18 U.S.C. § 1028(a) (7) an d 18 U.S.C. § 2; two counts (Counts 7 and 8) of unlawfully transfe rring means of identification of other persons in rela tion to a felo n y , i n v i o lation of 18 U.S.C. § 1028A and 18 U.S.C. § 2; one count (Count 9) of unlawful traff icking in unauthorized acc ess device s, in violation of 18 U.S.C. § 1029(a) (2) and 18 U.S.C. § 2; and one c ount (Count 10) of unlawf ul possession of unauthorized acc ess device s, in violation of 18 U.S.C. § 1029(a) (3) and 18 U.S.C. § 2. Gilmore pled
g uilty to all ten counts. For Counts 1 throug h 6 and 9 throug h 10, the presentence repor t calc ulated a total offe nse level of twenty -three and a criminal history cate g ory of I , translating to a g uidelines rang e of forty -six
to fifty -seve n months’ imprisonment. The probation office found that a six teen- level enhanc ement 2

was require d under U.S.S.G. § 2B1.1( b)(1) (I ), based on Application Note 3(F )(i). Specifica lly , the probation office noted that while “the individuals whose identities wer e stolen by the defe ndant did

Gilmore initially obtained persona l identification information from the District Attorney ’s 1 Offic e in Putnam County , Tenne ssee, wher e he was employ ed. He later beca me employ ed at Policy Studies, I nc. (“Policy Studies”), a company that contra cte d wi th the Tenne ssee Depa rtment of Human Service s. As part of t h at em ploy ment, Gilmore had acc ess to persona l identification infor ma tion for residents of Tenne ssee and other states. Gilmore was terminated from Policy Studies but retaine d possession of the per sonal identification informa tion he had bee n selling.
For Counts 7 and 8, the g uidelines rec ommendation w a s tw e n ty

- f o ur months for eac h count. 2

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United States v. Gilmore

not suf fer any financ ial losses,” the commentar y to U.S.S.G. § 2B1.1( b)(1) (I ) “states that in a case involving any counter feit acc ess device or unauthorized acc ess dev i ce , loss includes any unauthorized acc ess device and shall not be less than $500 per acc ess device .” Ba s ed o n t hat require ment, the prese ntenc e re p o rt valued the loss at $1,391,000 (2,782 times $500). Under U.S.S.G. § 2B1.1(b) (1)( I ), that mag nitude of loss merited a sixteen-leve l increa se. Gilmore filed an objection to the six teen- level enhanc ement on the g rounds that he did not make any unauthorized char g es with the data. The district court considere d Gilmore’s objection but reje cted his argument that use wa s a p re requisit e under Application Note 3(F )(i). The court conclude d instead that the $500-pe r-de vice r ule sets a mini mum amount of l oss for each stolen or fictitious acc ess device , used or not. I t there fore ac ce p ted the prese ntence repor t’s calc ulated
g uidelines rang e of forty -six to fifty -seve n months’ incarc era tion. Howeve r, t he court found t hat 3 this six teen- level enhanc ement would result i n an “over ly harsh” sentenc e and g rante d Gilmore’s motion for a downwar d varia nce pursuant to 18 U.S.C. § 3553(a)

. I t imposed a sentenc e of eig hteen months’ imprisonment for Counts 1 throug h 6, 9, and 10, to run con s ec u t ively to the twenty -four month sentenc e imposed for Counts 7 and 8, for a total sentenc e of forty -t wo months. Gilmore
appea ls this s entenc e. I I

. “When revie wing a district court’s application of section 2B1.1( b)(1) , we revie w the district court’s fac tual finding as to amount of loss for clea r err or.” United States v. Jones , --- F.3d

--- , 2011 WL 1364009, at *4 (6th Cir. Apr. 12, 2011) (citing United States v. W arshak , 631 F.3d 266, 328 (6th Cir. 2010) ). To the extent that the issues raised on appea l involve a construction of the sentenc ing
g uidelines, this court revie ws the di strict court’s c onstruction of the sente ncing g uidelines and the

acc ompany ing commentar y de novo . United States v. Portela , 469 F.3d 496, 498 (6th Cir. 2006)

.

Wit hout the six teen- level enhanc ement, the probation office calc u la te d that the total offe nse 3 level would only

be eig ht, corre lating to a

g uidelines rang e of zero to six m onths’ imprisonment. - 3 -No. 10-5055

United States v. Gilmore

I I I

. Gilmore challeng es the district court’s calc ulation o f l o s s under U.S.S.G. § 2B1.1. Particul ar l y , Gilmore contends that the district court err ed by apply ing the $500-per -devic e rule contained in Application Note 3(F )(i), found in the commentar y to the g uidelines. Gilmore does not challeng e the g ener al validity of the rule, as “commenta ry in the Guidelines Manual that interpre ts

or ex plains a guideline is authoritative unless it violates t h e Constit ution or a fede ral statute, or i s inconsistent with, or a plainly err oneous re ading of, that g uideline.” Stinson v. United States , 508 U.S. 36, 38 (1993); see also United States v. Jarman , 144 F.3d 912, 9 1 4 (6 t h C i r. 1998) (“A pplication Notes to the Sentencing Guidelines are acc orded controlling weigh t

. ”). Rather, he
argues that beca

use he did not make any unauthorized char g es with the acc ess device s he possessed, Application Note 3(F )(i) is ina pplicable to this case
. Acc ording to Gilmore, this Application Note makes clea

r that, for the ty

pe of acc ess device Mr. Gilmore posses s ed , the rule only applies if a char g e wa s made with the a cce ss device. Gilmore bases his a

rg ument almost exclusively on the text of the commentar y
. The text of Application Note 3( F) (i) re ads: Stolen or Counterfe it Credit Cards and Acc ess Dev i ce s ; P urloined Numbers and Codes.—I n a case involving any counter feit acc ess device or unauthorized acc ess device , loss in cl u d es any unauthorized char g es made with the counter feit acc ess device or unauthorized acc ess device and shall be not l es s t h an $500 per acc ess device

. Howeve r, if the unauthorized acc ess device is a means of telecommunications acc ess that identifies a specific telecommunications instrument or telecommunications acc ount (including an elec tronic serial number/mobile identification number (ESN/MI N) pair), and that means was only possessed, and not used, during the comm i s s i o n o f the offe nse, loss shall be not less than $100 per unused mea

ns. The plain lang uag e of the note’s first sente nce imposes two clea r conditions: (1) loss sha ll include
any unauthorize d c h a

r g e s ma de with the counter feit acc ess device or unauthorized acc ess device , and (2) the loss shall be not less than $500 per acc ess device

. Put another way , the loss for eac h acc ess device under Application Note 3(F )(i) is the g reater of the actua l loss resulting fr om unauthorized
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United States v. Gilmore

char g es or $500. The plain lang uag e sets a floor for calc ulating the loss attributable to eac h device , namely $500; it d o es n o t l i m i t loss calc ulations to device s actua lly used. See United States v. Dodson , 357 F. App’x 324, 325 (2d Cir. 2009) (re ading Application Note 3(F )(i) to set a $500 floor “eve n in the absenc e of a

n actua l loss”). Gilmore offe rs two interpre tative arguments in support of his position. First, he emphasizes the word “made ” in the firs t sentenc e of Application Note 3(F )(i) and sug g ests that a transac tion

m u s t have been “made ” in order to apply this rule. Howeve r, the clea r lang uag e of the s en t en ce indicates that “made ” only appli es to the first condition laid out in this sentenc e, including unauthorized char g es in the cost calc ulation if the device is actua lly used. The word “made ” has no rela tion to the second condition, which establishes the $500 floor. The plain lang uag e of this ter m only provides that “loss . . . shall not be less than $500 pe r ac cess de vice.” Second, Gilmore emphasizes the lang uag e “only possesse d , and not used” found in the note’s second sentenc e. This la

ng uag e, howeve r, also has no rela tion to the $500 floor, as it is a rule that only applies in the alternative to the first rule (i.e., that of actua l loss with a $500 floor) if the unauthorized acc ess devices in question provide “telecommunica tions acc ess.” Gilmore does not argue that social secur ity and bank acc ount numbers qualify as acc ess device numbers that provide telecommunications acce ss, so the lang uag e of the alternative rule is inapposite. Our court’s own prec edent follows this plain rea ding of Application Note 3(F )(i). I n United States v. W

oods , the defe ndant pled g uilty to possession of unauthorized cre dit car ds. 367 F. App’x 607, 609 (6th Cir. 2010). The total loss under § 2B1.1 was calc ulated to be $44,178.22, which the
court noted “included two assessments of $500 for two counter feit cre dit car ds the women possessed but had not used pursua

nt to U.S. S entenc ing G uidelines Manual § 2B1.1 cmt. n. 3(F )(i) (2009).” Id. at 609 n.1. Althoug h the def endant in W

oods does not a

ppear to ha

ve ra ised the issue Gilmore
prese nts here , the result in that case undermines the claim t h at t he $500-per-de vice rule is limit ed
to acc ess device s actua lly used.

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United States v. Gilmore

Other courts simil arly have not limited the application of the $500-per -devic e rule to those device s actua lly used by the defen d an t

. I n Uni ted St ates v. L ittle , the defendant stol e two rolls of

cre dit car d rec eipts from a Pennsy lvania g as station, which contained 886 acc ount numbers. 308 F. App’x 633, 634 (3d Cir. 2009). L ittle used only a few o f t h ese car d numbers, making a total of $763.40 in char g es. Id. at 634 n.1. The Third Circuit, howeve r, applied the $500-per-de vice r ule
to eac h of the 886 acc ount n u m b er s and calc ulated the resultant loss to be g reater than $400,000, translating to a fourtee n-leve l incre ase pursuant to U.S.S.G. § 2B1.1. Id. at 634. Simi larly , in United States v. Camper , the Ninth Circuit calc ulated the total loss under § 2B1.1 “by apply ing the Sentencing Guidelines’ $500 presumed loss to eac h of the 1,531 stolen cre dit car ds.” 337 F. App’x 631, 632 (9th Cir. 2009). There was no evidenc e in the case that eac h of the 1,531 stolen cre dit car d numbers had be en used. Id. Be cause the district court was corr ect to apply the $500-per -devic e rule to all of the device s stolen by Gilmore, t here was no proce dural or substantive err or st emming fr o m t h i s calc ulation. 4 There fore , the sentenc e imposed by the district court is af

firmed.

Gilmore also contends that the district court err ed when it desig nated P o l i cy Studies’ 4 expenses resulting from Gilmore’s theft—ca lculated to be $47,50 0

— as “losses” under U.S.S.G. § 2B1.1( b)(1) beca

use the company was not a victim of the fra ud as contemplated by § 2B1.1. This argument, howeve r, is moot; g iven the larg e loss calc ulated pursuant to the $500-per -devic e rule, the six teen- level incr ease under § 2B 1.1 applies re g ardle ss of whethe r the $47,500 sum is included or not. - 6 -