FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RUSLAN KIRILYUK,

Defendant-Appellant.

No. 19-10447

D.C. No.

2:14-cr-00083-JAM-4

OPINION

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Argued and Submitted June 18, 2021

San Francisco, California

Filed April 1, 2022

Before: Daniel A. Bress and Patrick J. Bumatay, Circuit 

Judges, and Douglas L. Rayes,* District Judge.

Opinion by Judge Bumatay;

Dissent by Judge Bress

* The Honorable Douglas L. Rayes, United States District Judge for 

the District of Arizona, sitting by designation.
2 UNITED STATES V. KIRILYUK

SUMMARY**

Criminal Law

The panel vacated a sentence and remanded for 

resentencing in a case in which a jury convicted the 

defendant of 28 felonies, the bulk of which were wire and 

mail fraud counts, in connection with a complex fraud 

conspiracy involving over 120,000 stolen American Express 

cards.

The defendant contended that the district court erred in 

calculating loss based on Application Note 3(F)(i) to 

U.S.S.G. § 2B1.1, which mandates that “loss” for use of 

counterfeit credit cards must be calculated at not less than 

$500 per credit card used. Although the defendant’s offense 

only caused an actual loss of $1.4 million and had an 

intended loss of only $3.4 million, the Application Note’s 

multiplier skyrocketed the “loss” to nearly $60 million and 

led to a 22-level enhancement. While the conspiracy in this 

case was designed to charge only $15 to $30 per credit card, 

the Application Note deems each loss to be $500. The 

defendant contended that Application Note 3(F)(i)’s 

mandatory $500-per-card minimum conflicts with the plain 

meaning of “loss” under § 2B1.1, and asked this court to find 

it non-binding under Stinson v. United States, 508 U.S. 36 

(1993). The panel concluded that no Ninth Circuit precedent 

forecloses this challenge, that the defendant’s sentencing 

objection was enough to preserve de novo review of the 

challenge, and that he properly raised the argument on 

appeal. On the merits, the panel held that Application Note 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. KIRILYUK 3

3(F)(i)’s expansion of the meaning of “loss” is clearly 

inconsistent with the language of the Guideline, and operates 

as an enhanced punishment rather than an assessment of 

“loss” tied to the facts of the case. The panel concluded that 

Application Note 3(F)(i) is therefore not binding under 

Stinson, which makes clear that the role of the Application 

Notes is to explain the Sentencing Guidelines, not enact 

policy changes to them; and that the defendant’s 22-level 

enhancement therefore cannot stand.

The panel also held that the district court erred in 

applying an enhancement for use of an “authentication 

feature” under U.S.S.G. § 2B1.1(b)(11)(A)(ii) because the 

purported authentication features used here—credit card 

numbers, passwords, and bank account numbers—were 

issued by American Express or a bank, not an “issuing 

authority,” which the Guidelines define as “any government 

entity or agency that is authorized to issue identification 

documents, means of identification, or authentication 

features.”

Although not raised by the defendant, the government 

conceded that the district court imposed an illegal sentence, 

and committed error that was plain, by imposing a 264-

month sentence on each of the defendant’s wire and mail 

fraud counts, where wire and mail fraud carry a maximum 

penalty of 240 months’ imprisonment for each count. The 

panel wrote that because the district court would have been 

free to hand down a shorter sentence had it realized the error, 

it would be a miscarriage of justice to give the defendant an 

illegal sentence in this case. 

The panel remanded for resentencing on an open record.
4 UNITED STATES V. KIRILYUK

In a concurrently filed memorandum disposition, the 

panel addressed the defendant’s remaining objections to his 

sentence.

Judge Bress dissented from the part of the decision 

invalidating the pre-card multiplier. He wrote that the 

majority opinion vastly exceeds the powers of a three-judge 

panel in overturning circuit precedent—namely, United 

States v. Yellowe, 24 F.3d 1110 (9th Cir. 1994), in which this 

court rejected a challenge to Sentencing Guidelines 

commentary allowing district courts to impose a 

presumptive dollar-per-credit-card multiplier for calculating 

“loss” enhancements under the Guidelines for certain fraud 

offenses.

COUNSEL

Gene D.Vorobyov (argued), San Francisco, California, for 

Defendant-Appellant.

Matthew G. Morris (argued), Assistant United States 

Attorney; Camil A. Skipper, Appellate Chief; Phillip A. 

Talbert, Acting United States Attorney; United States 

Attorney’s Office, Sacramento, California; for PlaintiffAppellee.
UNITED STATES V. KIRILYUK 5

OPINION

BUMATAY, Circuit Judge:

Ruslan Kirilyuk was sentenced to 27 years’ 

imprisonment for his part in a complex fraud conspiracy 

spanning multiple countries and involving over 120,000 

stolen American Express cards. Kirilyuk was charged and 

convicted of 28 felonies, the bulk of which were wire and 

mail fraud counts. To reach the 27-year sentence, the district 

court relied on multiple sentencing enhancements under the 

U.S. Sentencing Guidelines (“U.S.S.G.”).

In this opinion, we turn our attention to two of these 

enhancements: (1) the calculation of “loss” as $500 per 

stolen credit card under U.S.S.G. § 2B1.1(b)(1)(L) and 

Application Note 3(F)(i); and (2) the two-level enhancement 

for use of an “authentication feature” under U.S.S.G.

§ 2B1.1(b)(11)(A)(ii). We conclude that the district court 

erred in applying the enhancements. We also hold that the 

district court erred when it imposed a prison term of 

264 months for each of the fraud counts—two years above 

their 240-month statutory maximum. See 18 U.S.C. 

§§ 1341, 1343. We therefore vacate Kirilyuk’s sentence and 

remand for resentencing.1

I.

For three years, Kirilyuk and his associates engaged in a 

massive, international fraud scheme. The operation 

involved layers of sophistication.

1 In a concurrently filed memorandum disposition, we reject 

Kirilyuk’s remaining objections to his sentence.
6 UNITED STATES V. KIRILYUK

First, the conspirators stole account information from 

nearly 120,000 American Express credit and debit cards.

Second, the group created dozens of fake online 

businesses using stolen identities and opened merchant 

accounts for the sham businesses. In setting up these 

businesses, the enterprise used identities pilfered from three 

Russian nationals who traveled to the United States on 

student visas and 220 California high school students whose 

transcripts had been stolen.

Third, one of Kirilyuk’s Russian partners used the false 

merchant accounts to make fraudulent charges on the stolen 

AMEX cards. Typically, the charges were in small amounts, 

between $15 and $30, to avoid detection by the 

accountholders. The schemers even set up phone lines for 

the fake businesses to field complaints from AMEX 

customers seeking refunds for the illicit charges. By 

refunding the fraudulent charges, they would deter the 

customers from notifying AMEX.

Next, after being credited for fraudulent charges, the 

conspirators would transfer the funds from the merchant 

accounts to nominee bank accounts. They would then 

withdraw the money from ATMs, wire the funds overseas, 

or make purchases from other companies.

In total, Kirilyuk’s fraud scheme involved more than five 

conspirators, over 70 shell companies, over 220 stolen 

identities, almost 120,000 fraud victims, and over 190,000 

fraudulent transactions, including 84,000 transfers of funds 

to fake merchant accounts. Altogether, according to the 

Probation Office, Kirilyuk and his associates stole over 

$1.4 million and the intended loss was found to be more than 

$3.4 million.
UNITED STATES V. KIRILYUK 7

By Fall 2015, the FBI unraveled the fraud scheme and 

arrested Kirilyuk and his co-conspirators. Kirilyuk was 

indicted on 24 counts of wire fraud, two counts of mail fraud, 

and one count of aggravated identity theft. See 18 U.S.C. 

§§ 1028(a)(1), 1341, 1343. Following his arrest and release 

on bond, Kirilyuk failed to appear for his February 2017 trial

and the government added a failure-to-appear charge after he 

was apprehended in Mexico City, Mexico. See 18 U.S.C. 

§ 3146(a)(1), (b)(1)(A)(i). A jury convicted Kirilyuk on all 

28 counts.

The presentence investigation report (“PSR”) 

determined that Kirilyuk’s offense level reached the 

maximum of 43. As part of its calculations, the Probation 

Office recommended several sentencing enhancements and 

adjustments, including:

• +22 levels for the 119,913 AMEX credit card 

numbers used, multiplied by $500 each, resulting in 

a loss of $59,956,500, U.S.S.G. § 2B1.1(b)(1)(L) & 

cmt. n.3(F)(i).

• +2 levels for ten or more victims, U.S.S.G. 

§ 2B1.1(b)(2)(A)(i);

• +2 levels for sophisticated means, U.S.S.G. 

§ 2B1.1(b)(10)(C);

• +2 levels for the use of an authentication feature, 

U.S.S.G. § 2B1.1(b)(11)(A)(ii);

• +4 levels for aggravated role, U.S.S.G. § 3B1.1(a);

• +2 levels for obstruction of justice, U.S.S.G. 

§ 3C1.1; and
8 UNITED STATES V. KIRILYUK

• +3 levels for commission of an offense while on 

pretrial release, U.S.S.G. § 3C1.3.

The resulting Guideline range for Kirilyuk’s offense level 

was life, limited by the charges’ maximum terms of 

imprisonment. The maximum term of imprisonment for 

both wire and mail fraud is 20 years for each count. The 

identify theft and failure-to-appear counts have maximum 

terms of two years and ten years, respectively. The district 

court accepted the PSR’s offense level recommendations 

and sentenced Kirilyuk to 324 months’ total imprisonment. 

The district court’s sentence was based on a 264-month, 

concurrent sentence on each of the wire and mail fraud 

counts, and consecutive terms of 24 months on the 

aggravated identity theft count and 36 months on the failureto-appear count.

On appeal, Kirilyuk only challenges his sentence. We

review the district court’s interpretation of the Sentencing 

Guidelines de novo, its application of the Guidelines to the 

facts of the case for abuse of discretion, and its factual 

findings for clear error. United States v. Gasca-Ruiz, 

852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). We review 

whether a sentence exceeds the maximum term of 

imprisonment de novo. United States v. Gementera, 

379 F.3d 596, 612 n.5 (9th Cir. 2004).

II.

Kirilyuk appeals his sentence on several grounds. In this 

opinion, we tackle three issues: (1) whether the district court 

erred in calculating loss based on a $500-per-card multiplier 

under Application Note 3(F)(i) to § 2B1.1; (2) whether the 

district court properly applied the “authentication feature” 

enhancement under § 2B1.1(b)(11)(A)(ii); and (3) whether 

the district court imposed an illegal sentence.
UNITED STATES V. KIRILYUK 9

We find merit in all three claims, vacate the sentence, 

and remand for resentencing.

A. Section 2B1.1’s $500-Per-Card Multiplier

We first address Kirilyuk’s challenge to the district 

court’s application of Application Note 3(F)(i) of § 2B1.1. 

The Application Note mandates that “loss” for use of 

“[c]ounterfeit [c]redit [c]ards” must be calculated at “not less 

than $500” per credit card used. See U.S.S.G. § 2B1.1 cmt. 

n.3(F)(i). The effect of the Application Note was enormous. 

Although Kirilyuk’s offense only caused an actual loss of 

$1.4 million and had an intended loss of only $3.4 million, 

the Application Note’s multiplier skyrocketed the “loss” to 

nearly $60 million and led to a 22-level enhancement. See

U.S.S.G. § 2B1.1(b)(1)(L).

Kirilyuk contends that Application Note 3(F)(i)’s 

mandatory $500-per-card minimum conflicts with the plain 

meaning of “loss” under § 2B1.1, and he asks us to find it 

non-binding under Stinson v. United States, 508 U.S. 36, 38 

(1993). We agree and do not consider the Application Note 

authoritative.

1.

Before turning to the merits of Kirilyuk’s claim, we 

address two important housekeeping issues. First, we look 

to see whether our prior precedent forecloses Kirilyuk’s 

challenge to Application Note 3(F)(i). Second, we 

determine whether Kirilyuk properly raised this argument on 

appeal.

On the question of precedent, we conclude that no Ninth 

Circuit case has considered whether Application Note 

3(F)(i)’s $500-per-card multiplier conflicts with the 
10 UNITED STATES V. KIRILYUK

meaning of “loss” in § 2B1.1. So it remains an open 

question in our circuit. To be sure, in two published cases, 

we interpreted and applied Application Note 3(F)(i) or its 

predecessor. See United States v. Yellowe, 24 F.3d 1110 (9th 

Cir. 1994); United States v. Gainza, 982 F.3d 762 (9th Cir. 

2020). But neither case analyzed the Note’s validity under 

Stinson, so neither case binds us on this question.

Prior precedent that does not “squarely address” a 

particular issue does not bind later panels on the question. 

Brecht v. Abrahamson, 507 U.S. 619, 631 (1993). As we 

have repeatedly stated, “[q]uestions which merely lurk in the 

record, neither brought to the attention of the court nor ruled 

upon, are not to be considered as having been so decided as 

to constitute precedents.” United States v. Ped, 943 F.3d 

427, 434 (9th Cir. 2019) (simplified). Thus, cases are “not 

precedential for propositions not considered,” United States 

v. Pepe, 895 F.3d 679, 688 (9th Cir. 2018), or for matters 

that are “simply assumed,” Sonner v. Premier Nutrition 

Corp., 971 F.3d 834, 842 n.5 (9th Cir. 2020). Indeed, if a 

prior case does not “raise or consider the implications” of a 

legal argument, it does “not constrain our analysis.” United 

States v. Cassel, 408 F.3d 622, 633 n.9 (9th Cir. 2005).

In Yellowe, we considered the applicability of 

Application Note 3(F)(i)’s $500-per-card multiplier’s 

predecessor, former Application Note 4’s $100-per-card 

multiplier, in a particular context.2 In his briefing, Yellowe 

2 Former Application Note 4 provided that “loss includes any 

unauthorized charges made with stolen credit cards, but in no event less 

than $100 per card.” U.S.S.G. § 2B1.1 cmt. n.4 (1993). See United 

States v. King, 861 F.3d 692, 694 n.1 (7th Cir. 2017) (noting that in 2000, 

the Sentencing Commission moved Application Note 4 to Application 

Note 3(F)(i) and changed the minimum loss amount from $100 to $500 

per card).
UNITED STATES V. KIRILYUK 11

argued that the Application Note’s multiplier only applied to 

offenses involving stolen credit cards, not to cases merely 

using credit card numbers. When only credit card numbers 

are used, Yellowe asserted that another Application Note—

former Application Note 7—required the court to determine 

“loss” using “intended loss.” See U.S.S.G. § 2F1.1 cmt. n.7 

(1993). Yellowe contended that the multiplier’s use of a 

“presumed loss” figure conflicted with the plain meaning of 

Note 7’s “intended loss” requirement. Yellowe also argued 

that, even if the multiplier applied to credit card numbers, 

the focus should be on his “knowledge and intentions” since 

“intended loss” was the goal of the Guidelines and the 

district court should have applied his estimate of the likely 

return on the fraud. We rejected each contention in Yellowe.

Right off the bat, the first sentence of Yellowe

acknowledged that the central question in that case was 

narrow: “This appeal requires us to decide whether 

Application Note 4 to U.S.S.G. § 2B1.1 . . . applies to 

unauthorized use of credit card numbers as well as the card 

itself.” 24 F.3d at 1111. We held that the $100-per-card 

multiplier applied equally to credit card numbers and to 

“unauthorized charges made with the plastic itself.” Id. at 

1113. Thus, “loss under Application Note 4 to § 2B1.1 

includes any unauthorized charges made with stolen credit 

card numbers or with physical credit cards.” Id. Second, we 

observed that the multiplier set a “presumed loss” for credit

card fraud, “setting a floor beneath which neither ‘actual’ nor

‘intended’ loss may fall.” Id. Given this floor, we concluded 

that Yellowe’s “subjective intent” in the offense was 

“immaterial.” Id. Finally, we noted that former Application 

Note 4 said “nothing about probabilities” of success of the 

fraud and so it wasn’t clearly erroneous for the district court 

to disregard Yellowe’s “estimate of the likely return” of his 

fraud. Id. Those were the precise holdings of Yellowe. 
12 UNITED STATES V. KIRILYUK

Yellowe never argued that—and we never analyzed 

whether—the $100-per-card multiplier was consistent with 

the plain meaning of “loss” under Stinson. That is the 

question we face today.3

Gainza is even further afield from the issue in this case. 

There, we reviewed “[t]he pivotal question” of how to 

determine “how many account numbers [were] obtained” for 

Application Note 3(F)(i) purposes. 982 F.3d at 765. We 

found the district court’s finding on the quantity of account 

numbers clearly erroneous. Id. In doing so, we considered 

the various types of proof permissible to make the numerical 

determination and observed such a calculation didn’t require 

“mathematical precision.” Id. Nowhere in that decision did 

we address whether the $500-per-card multiplier aligned 

with the text of § 2B1.1.4

3 Our fine dissenting colleague misunderstands Kirilyuk’s argument 

on appeal to conclude that Yellowe governs the matter. Contrary to the 

dissent’s characterization, Kirilyuk is not arguing that “the focus” of the 

loss inquiry “should be on his knowledge and intentions” since “intended 

loss” is the “goal of the guideline.” Dissent 29–30. Rather, Kirilyuk 

argues that the Application Note’s use of a $500-per-card multiplier to 

determine his offense level conflicts with the plain meaning of “loss” in 

§ 2B1.1. Under Stinson, if an Application Note “is inconsistent with” 

the Guidelines, we must follow the Guidelines. 508 U.S. at 38.

4 The government cites no other published Ninth Circuit decision 

that purports to bind us on Kirilyuk’s argument. We note that several 

unpublished decisions of this court, including that of Kirilyuk’s coconspirator, Mihran Melkonyan, have also applied the $500 multiplier. 

But none of these cases analyzed whether the multiplier conflicts with 

the plain meaning of “loss.” See, e.g., United States v. Melkonyan, 

831 F. App’x 319, 319–20 & n.1 (9th Cir. 2020) (unpublished); United 

States v. Chew, 804 F. App’x 492, 494–95 (9th Cir. 2020) (unpublished); 

United States v. Gaussiran, 787 F. App’x 458, 460 (9th Cir. 2019) 

(unpublished); United States v. Nguyen, 543 F. App’x 715, 716 (9th Cir. 
UNITED STATES V. KIRILYUK 13

So the Stinson issue was neither “brought to the attention 

of the court nor ruled upon” in Yellowe, Gainza, or any other 

published Ninth Circuit opinion. Ped, 943 F.3d at 434 

(simplified). As no prior panel has “squarely addressed” the 

issue, we may address its merits. Brecht, 507 U.S. at 631.

Even if precedent doesn’t foreclose reaching the merits, 

the government still contends that Kirilyuk forfeited his 

Stinson challenge by not raising it in the district court. This 

is inaccurate. “[I]t is claims that are deemed waived or 

forfeited, not arguments.” United States v. Lloyd, 807 F.3d 

1128, 1174–75 (9th Cir. 2015) (simplified). Before the 

district court, Kirilyuk specifically objected to the 

applicability of Application Note 3(F)(1) as “arbitrary,” 

“artificially high,” and “contrary to relevant case law and 

concepts of justice.” “Once a federal claim is properly 

presented, a party can make any argument in support of that 

claim; parties are not limited to the precise arguments they 

made below.” Id. at 1175 (simplified). Thus, Kirilyuk’s 

sentencing objection was enough to preserve our de novo 

review of his Stinson challenge.

Finally, the government argues we should not reach the 

Stinson issue because Kirilyuk didn’t raise it until his reply 

brief. It is true that an appellant generally waives any 

argument not raised in the opening brief. See Friends of 

Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1033 (9th 

Cir. 2008). But we’ve recognized two exceptions to that 

2013) (unpublished); United States v. Levine, 87 F. App’x 44, 45 (9th 

Cir. 2004) (unpublished). Contrary to the dissent’s suggestion, 

Melkonyan did not frame his Stinson challenge as Kirilyuk did. 

Dissent 37. The only mention of Stinson in Melkonyan’s briefing was 

to note that the $500-per-card multiplier conflicted with Application 

Notes 3(A) and (C)—not that the multiplier is inconsistent with the 

meaning of “loss.”
14 UNITED STATES V. KIRILYUK

rule: (1) when failure to consider the argument would lead 

to “manifest injustice,” and (2) when the “opposing party 

will not suffer prejudice.” Hall v. City of Los Angeles, 

697 F.3d 1059, 1071 (9th Cir. 2012). Both exceptions apply 

here. First, Application Note 3(F)(1) boosted Kirilyuk’s 

base offense level—from +16 to +22, see U.S.S.G. 

§ 2B1.1(b)(1)(I), (L), significantly increasing his sentencing 

range and raising a concern for a manifest injustice. Second, 

both parties had ample opportunity to address this question 

in supplemental briefing and so we see no prejudice to the 

government. We thus exercise our discretion to consider 

Kirilyuk’s Stinson argument and turn to the merits.

2.

As we’ve recently observed, “Application Notes are not 

formally part of the Guidelines, but serve to ‘interpret[]’ and 

‘explain[]’ the Guidelines for district courts.” United States 

v. Prien-Pinto, 917 F.3d 1155, 1157 (9th Cir. 2019) (quoting 

Stinson, 508 U.S. at 38). The U.S. Sentencing Commission 

drafts both the Guidelines and Application Notes. Id. As 

Application Notes are based on the Commission’s 

“particular area of concern and expertise” and “represent the 

most accurate indications of how the Commission deems 

that the guidelines should be applied,” they are generally 

binding on federal courts. Stinson, 508 U.S. at 45.

But that is not the end of the story. There’s an important 

distinction between the Guidelines and Application Notes. 

That’s because Congress too has a role over the Guidelines. 

Id. at 44. Congress charged the Commission with 

promulgating the Guidelines and retains the right to review 

the Guidelines. Id. at 44–45. So any amendment to the 

Guidelines must be submitted to Congress for a six-month 

period of review, during which time Congress can “modify 

or disapprove them.” Id. at 41. By contrast, “Congress lacks 
UNITED STATES V. KIRILYUK 15

the power to modify or disapprove of Application Notes,” 

which the Commission has unbridled discretion to issue. 

Prien-Pinto, 917 F.3d at 1157.

Given this difference, the Supreme Court has told us that 

there is a limit to the binding nature of the Application Notes. 

Stinson says that an Application Note “that interprets or 

explains a guideline is authoritative unless it . . . is 

inconsistent with, or a plainly erroneous reading of, that 

guideline.” Id. (quoting Stinson, 508 U.S. at 40). So, “we 

ascribe somewhat less legal weight to the Application Notes 

than to the Guidelines proper: if the Guideline and 

Application Note are inconsistent, the Guideline prevails.” 

Id.

We’ve been “troubled” by the Commission’s prior 

attempts to use its interpretive authority to improperly 

change the scope of a Guideline provision. See, e.g., United 

States v. Crum, 934 F.3d 963, 966 (9th Cir. 2019). And 

multiple times, we’ve found Application Notes non-binding 

for conflicting with the Guidelines. For example, we’ve 

applied Stinson to reject an Application Note that altered the 

“temporal restriction” imposed by the “language of the 

Guideline.” United States v. Rising Sun, 522 F.3d 989, 996 

(9th Cir. 2008) (holding that an Application Note can’t 

expand an enhancement for obstruction of justice “during” 

an investigation to include conduct taking place before an 

investigation). We’ve also ruled that the Guidelines 

commentary need not be followed when it establishes a 

“narrowing” construction not “found in the Guideline text.” 

United States v. Lambert, 498 F.3d 963, 971 (9th Cir. 2007). 

Lastly, we’ve determined that an Application Note can’t 

render a part of the Guidelines “meaningless.” United States 

v. Powell, 6 F.3d 611, 614 (9th Cir. 1993).
16 UNITED STATES V. KIRILYUK

With this legal background, we turn to Application Note 

3(F)(i)’s $500-per-card multiplier. Section 2B1.1 generally 

applies to crimes involving theft, stolen property, fraud, and 

counterfeiting. U.S.S.G. § 2B1.1. The offense level of 

§ 2B1.1 is determined in large part by the crime’s “loss” 

amount. As we’ve explained, the Guideline “provide[s] for 

graduated increases to the base offense level depending on 

the amount of loss caused by the crime.” Gainza, 982 F.3d 

at 764. Subsection (b)(1) of § 2B1.1 establishes a table that 

increases the base offense by commensurate levels of loss 

“[i]f the loss exceed[s] $6,500[.]” U.S.S.G. § 2B1.1(b)(1).

Application Note 3(F) provides for “special rules” to “be 

used to assist in determining loss.” Id. cmt. n.3(F). In 

particular, it provides that in a case involving stolen or 

counterfeit credit cards, “loss includes any unauthorized 

charges made with the [credit cards] and shall be not less 

than $500 per [credit card].” Id. cmt. n.3(F)(i). In other 

words, Note 3(F)(i) creates a rigid, fictional $500 minimum 

loss amount per credit card—no matter the facts of the 

particular case.

The question here is simple: Is Note 3(F)(i)’s “special 

rule” for calculating loss by using a minimum $500-per-card 

multiplier consistent with the plain meaning of “loss”? We 

hold that it is not.

To begin, § 2B1.1 does not define “loss.”5 In 

interpreting the Guidelines, we apply the ordinary tools of 

5 Commentary to § 2B1.1, however, does define “loss.” It states that 

“loss is the greater of actual loss or intended loss,” U.S.S.G. § 2B1.1 cmt. 

n.3(A), with “actual loss” being “the reasonably foreseeable pecuniary 

harm that resulted from the offense,” id. cmt. n.3(A)(i), and “intended 

loss” consisting of “the pecuniary harm that the defendant purposely 

sought to inflict,” id. cmt. n.3(A)(ii). Given our ruling under Stinson, we 
UNITED STATES V. KIRILYUK 17

statutory interpretation and look to the plain meaning of its 

terms. United States v. Turnipseed, 159 F.3d 383, 387 (9th 

Cir. 1998). Such tools include “consult[ing] dictionary 

definitions, which we trust to capture the common 

contemporary understandings of the word.” United States v. 

Flores, 729 F.3d 910, 914 (9th Cir. 2013).

As the Sixth Circuit recently showed, a review of 

dictionaries reveals that “loss” can have a range of 

meanings:

One dictionary defines the word to mean, 

among other things, the “amount of 

something lost” or the “harm or suffering 

caused by losing or being lost.” American 

Heritage Dictionary of the English Language 

1063 (3d ed. 1992). Another says it can mean 

“the damage, trouble, disadvantage, [or] 

deprivation . . . caused by losing something” 

or “the person, thing, or amount lost.” 

Webster’s New World College Dictionary 

799 (3d ed. 1996). A third defines it as “the 

being deprived of, or the failure to keep (a 

possession, appurtenance, right, quality, 

faculty, or the like),” the “[d]imunition of 

one’s possessions or advantages,” or the 

“detriment or disadvantage involved in being 

deprived of something[.]” 9 Oxford English 

Dictionary 37 (2d ed. 1989).

United States v. Riccardi, 989 F.3d 476, 486 (6th Cir. 2021).

need not reach Kirilyuk’s alternative argument that Application Note 

3(F)(i) conflicts with the Commentary’s definitions.
18 UNITED STATES V. KIRILYUK

Though dictionary definitions for “loss” may vary, they 

make one thing clear: “No reasonable person would define 

the ‘loss’ from a stolen [credit] card as an automatic $500” 

rather than a fact-specific amount. Id. Instead, § 2B1.1 is 

driven by “the amount of loss caused by the crime.” Gainza, 

982 F.3d at 764 (emphasis added). So “loss” cannot mean a 

pre-determined, contrived amount with no connection to the 

crime committed, even if it is based on the Commission’s 

“research and data.” See U.S.S.G. amend. 596 (Nov. 2000). 

Application Note (3)(F)(i) thus doesn’t illuminate the 

meaning of “loss,” but modifies it. Yet “Stinson requires that 

commentary interpret the guidelines, not contradict or add to 

them.” Riccardi, 989 F.3d at 493 (Nalbandian, J., 

concurring).6

This case illustrates the egregious problem with the 

Application Note’s expansion of the meaning of “loss.” As 

determined by the Probation Office, Kirilyuk’s conspiracy 

involved $1.4 million in actual losses or $3.4 million in 

intended losses. Applying the $500-per-card multiplier 

balloons the “loss” to $60 million—17 times greater than the 

intended loss. While the conspiracy was designed to charge 

only $15 to $30 per credit card, the Application Note asks us 

to deem each loss to be $500. Application Note 3(F)(i) thus 

operates as an enhanced punishment, rather than an 

assessment of “loss” tied to the facts of the case. But Stinson

makes clear that the role of the Application Notes is to 

explain the Guidelines, not enact policy changes to them. 

6 Our dissenting colleague claims that “loss” can also mean “a 

presumptive dollar amount” so long as it is “intended reasonably to 

estimate the pecuniary harm resulting from a particular offense.” 

Dissent 43. But as a matter of plain meaning, that is incorrect, and the 

dissent provides no support for this contention. When deciding such 

important matters, we should rely on more than ipse dixit.
UNITED STATES V. KIRILYUK 19

We thus hold that Application Note 3(F)(i)’s expansion of 

the meaning of “loss” is “clearly inconsistent with the 

language of the Guideline” and is not binding under Stinson. 

Rising Sun, 522 F.3d at 996.7

With this holding, we align ourselves with the Sixth 

Circuit—the only other court to consider this issue. In 

Riccardi, 989 F.3d 476, the majority of the court held that 

Application Note 3(F)(i) was not binding, though by 

applying the narrower deference set out in Kisor v. Wilkie, 

139 S. Ct. 2400 (2019). We do not express a view on that 

analysis. Instead, our reasoning tracks with Judge 

Nalbandian’s Riccardi concurrence, which relied on Stinson

to conclude that “[a]scribing a certain number to ‘loss’ is not

a definition.” Id. at 493 (Nalbandian, J., concurring). We 

thus follow our general path of “not creat[ing] a direct 

conflict with other circuits” in resolving this issue. United 

7 The government argues that we should ignore these concerns 

because the Commission was only responding to a Congressional 

directive in amending the Application Note. See U.S.S.G. amend. 596 

(Nov. 2000) (noting that the Commission increased the multiplier to 

$500 after Congress enacted § 2 of the Wireless Telephone Protection 

Act, Pub. L. 105-172). But we decline to create an exception to Stinson

based on the Commission’s response to a Congressional directive. There 

may be good reason for the $500-per-card multiplier, but the 

Commission could put it on firmer ground by adding it to the text of 

§ 2B1.1 itself (as it has with the presumed loss rules of § 2T1.1(c)(1) and 

(2)). Indeed, as it stands, nothing prevents the Commission from 

amending the multiplier to a low of $1 or a high of $1 million in the next 

edition of the Guidelines—all with no say by Congress. Lastly, 

Application Note 21(C)’s “Downward Departure” safety valve doesn’t 

save the improper expansion of “loss” under Application Note 3(F)(i), as 

the government argues. Just because a district court has the discretion to 

lessen the sting of Note 3(F)(i)’s enhanced punishment, that does not 

make it consistent with the Guidelines under Stinson.
20 UNITED STATES V. KIRILYUK

States v. Cuevas-Lopez, 934 F.3d 1056, 1067 (9th Cir. 2019) 

(simplified).

Because Application Note 3(F)(i) contorts the meaning 

of “loss” to equal “$500” in credit card cases, we hold that it 

is not binding and that Kirilyuk’s 22-level enhancement 

cannot stand.8

B. Section 2B1.1’s Authentication Feature 

Enhancement

We next turn to the enhancement for use of an 

“authentication feature” under § 2B1.1(b)(11)(A)(ii). We 

hold that the district court erred in imposing that 

enhancement because the purported authentication features 

used here were issued by American Express or a bank, not 

an “issuing authority” as defined by the Guidelines.

Section 2B1.1(b)(11)(A)(ii) provides for a two-level 

increase “[i]f the offense involved . . . the possession or use 

of any . . . authentication feature.” The relevant application 

note defines “authentication feature” as the term is used in 

18 U.S.C. § 1028(d)(1). U.S.S.G. § 2B1.1 cmt. n.10(A).

That provision defines “authentication feature” as:

[A]ny hologram, watermark, certification, 

symbol, code, image, sequence of numbers or 

letters, or other feature that either 

8 The dissent warns that our decision will be “far-reaching and 

destabilizing.” Dissent 58. First, we disagree that our decision is so 

earthshattering. As we’ve said, the Commission need only put the $500-

per-card multiplier in the Guidelines, rather than in the commentary, to 

protect it from Stinson scrutiny. Second, even if the dissent is correct, 

our duty as judges is to apply the law regardless of any disfavored 

consequences.
UNITED STATES V. KIRILYUK 21

individually or in combination with another 

feature is used by the issuing authority on an 

identification document, document-making 

implement, or means of identification to 

determine if the document is counterfeit, 

altered, or otherwise falsified.

18 U.S.C. § 1028(d)(1) (emphasis added). “Issuing 

authority,” in turn, is defined as “any governmental entity or 

agency that is authorized to issue identification documents, 

means of identification, or authentication features.” Id. 

§ 1028(d)(6)(A).

The district court applied the enhancement based on the 

PSR’s reasoning that “credit card numbers, passwords, and 

bank account[] numbers” involved in the scheme constituted 

authentication features. But the issuers of these 

authentication features—either American Express or another 

private financial institution—do not fit within the definition 

of “issuing authority.” Cf. United States v. Sardariani, 

754 F.3d 1118, 1121 (9th Cir. 2014) (“issuing authority” 

includes a notary public, who takes “actions . . . based upon 

the authority of the state”). Here, the government does not 

allege that American Express issued the credit card numbers, 

passwords, and bank account numbers “based upon the 

authority of the state” or any other government entity. Id. 

So they do not constitute a “governmental entity or agency.” 

18 U.S.C. § 1028(d)(6). It was thus improper for the district 

court to apply the enhancement based on the rationale 

presented in the PSR.

The government points out that Kirilyuk’s scheme also 

involved stolen social security numbers, drivers’ licenses, 

and material from public school transcripts. Though true, 

the government’s argument does not carry the day because 

it is not apparent that the district court relied on these facts 
22 UNITED STATES V. KIRILYUK

to impose the enhancement. On remand, the government is 

free to re-argue for the authentication feature enhancement 

on these or any other grounds supported by the record.

9

C. Illegal Sentence

Although not raised by Kirilyuk, the government 

commendably concedes that the district court imposed an 

illegal sentence by imposing a 264-month sentence on each 

of Kirilyuk’s wire and mail fraud counts. Both wire and mail 

fraud carry a maximum penalty of 240 months’ 

imprisonment for each count. See 18 U.S.C. § 1343 (wire 

fraud); 18 U.S.C. § 1341 (mail fraud). So the government is 

right that the district court’s sentence of 264 months per 

count was illegal. See United States v. Grimaldo, 993 F.3d 

1077, 1083 (9th Cir. 2021) (“An illegal sentence is one in 

excess of the permissible statutory penalty for [a] crime.” 

(simplified)).

Yet since Kirilyuk failed to raise this issue himself in the 

district court, we must review whether the illegal sentence 

constitutes plain error. United States v. Hayat, 710 F.3d 875, 

895 (9th Cir. 2013). Under the plain-error standard, relief 

may be granted only when there was: (1) an error; (2) that 

was plain; (3) that affected the defendant’s substantial rights; 

and (4) the error seriously affects the fairness, integrity, or 

public reputation of judicial proceedings. Id. (simplified).

The government admits that the illegal sentence was 

plain error, satisfying the first two prongs of plain-error

9 Because we hold the district court erroneously imposed the 

authentication feature enhancement, we do not address Kirilyuk’s 

alternative argument that the enhancement also constituted 

impermissible double-counting under Application Note 2 of § 2B1.6. 

Kirilyuk may raise that argument, as appropriate, at resentencing.
UNITED STATES V. KIRILYUK 23

review. Once again, we agree with the government. We 

have held that the “[i]mposition of a sentence exceeding a 

statutory maximum constitutes plain error.” Grimaldo, 

993 F.3d at 1083 (simplified).

The government instead counters that Kirilyuk cannot 

carry his burden under the last two prongs of plain-error 

review because he was convicted of multiple fraud counts 

that could be stacked consecutively to impose the district 

court’s total sentence of 264 months. In other words, the 

district court could have sentenced Kirilyuk to the statutory 

maximum of 240 months on 25 of his 26 fraud convictions 

with a 24-month consecutive sentence on the 26th count—

totaling 264 months imprisonment.

We disagree. Even if the district court could restructure 

Kirilyuk’s sentence to reach the same result, we decline to 

decide that for the district court. Kirilyuk cogently argues 

that the district court may have set a lower sentence had it 

realized that the maximum sentence on the fraud counts was 

240 months. This is especially true now that we are vacating 

Kirilyuk’s sentence based on the error in imposing two other 

enhancements. As we have said, we should “try to avoid” 

ruling in a manner that leaves “everyone . . . wonder[ing] 

about whether the sentencing court might have acted 

differently.” United States v. Ameline, 409 F.3d 1073, 1081 

(9th Cir. 2005).

The government relies on two cases with limited 

applicability here. See United States v. Buckland, 289 F.3d 

558 (9th Cir. 2002) (en banc); United States v. Kentz, 

251 F.3d 835 (9th Cir. 2001). In those cases, we affirmed 

illegal sentences because “the court could have imposed the 

sentences on certain counts to run consecutive to one 

another, there can’t possibly be plain error that requires 

resentencing.” Kentz, 251 F.3d at 843; see also Buckland, 
24 UNITED STATES V. KIRILYUK

289 F.3d at 569–70. But both cases were decided before 

United States v. Booker, 543 U.S. 220 (2005), when it was 

mandatory that district courts apply the Guidelines. PreBooker, the Guidelines would have required the district court 

to impose consecutive sentences to reach the total proper 

punishment under the Guidelines if it exceeded the statutory 

maximum on a single count. See Buckland, 289 F.3d at 572 

(citing U.S.S.G. § 5G1.2(d)).10

Today, however, the district court would have been free 

to hand down a shorter sentence had it realized the error in 

the imposed sentence. Thus, it would be “a miscarriage of 

justice to give [Kirilyuk] an illegal sentence” in this case, 

United States v. Schopp, 938 F.3d 1053, 1069 (9th Cir. 

2019), and we vacate and remand.

III.

The district court erred when it imposed a 22-level 

enhancement based on the $500-per-card multiplier, applied 

the two-level enhancement for use of an authentication 

feature, and handed down an illegal sentence. We vacate 

Kirilyuk’s sentence and remand for resentencing on an open 

record.

VACATED and REMANDED.

10 At the time of Buckland, § 5G1.2(d) provided, “[i]f the sentence 

imposed on the count carrying the highest statutory maximum is less than 

the total punishment, then the sentence imposed on one or more of the 

other counts shall run consecutively, but only to the extent necessary to 

produce a combined sentence equal to the total punishment.” U.S.S.G. 

§ 5G1.2(d) (2001).
UNITED STATES V. KIRILYUK 25

BRESS, Circuit Judge, dissenting:

I respectfully dissent because the majority opinion vastly 

exceeds the powers of a three-judge panel in overturning 

circuit precedent that has been the established law of our 

western states for nearly three decades. In United States v. 

Yellowe, 24 F.3d 1110 (9th Cir. 1994), we rejected a 

challenge to Sentencing Guidelines commentary allowing 

district courts to impose a presumptive dollar-per-creditcard multiplier (then $100, now $500) for calculating “loss” 

enhancements under the Guidelines for certain fraud 

offenses. In doing so, we held that courts could impose this 

loss amount even if a defendant’s “actual” or “intended” loss 

was lower. Since Yellowe, we have repeatedly upheld 

district courts’ application of the per-card multiplier. We 

recently did so in the case of this defendant’s own codefendant, for his role in the very same credit-card fraud 

scheme.

Yet today the majority invalidates the per-card 

multiplier, even though there has been no intervening change 

in the law since Yellowe. Instead, the majority effectively 

concludes that our past cases were all wrongly decided and 

credits what is merely a re-stated version of the same 

argument we rejected in Yellowe. Under today’s decision, 

Yellowe and many other cases should have come out the 

other way. Through this serious over-extension, the majority 

contravenes the fundamental principle that if we think circuit 

precedent should be revisited, we must engage the en banc 

process, not take matters into our own hands at the panel 

level.

Even if three decades of circuit precedent and practice 

were not enough, the majority’s decision is still wrong on its 

own terms. The Sentencing Commission’s per-card 

multiplier is not inconsistent with or a plainly erroneous 
26 UNITED STATES V. KIRILYUK

reading of “loss” under the Guidelines, and the 

Commission’s interpretation is therefore binding under 

Stinson v. United States, 508 U.S. 36 (1993). That position 

is not novel: courts across the country have routinely applied 

the per-card multiplier, just as we did before today. In siding 

with an outlier concurring opinion in a Sixth Circuit case 

involving materially different facts, the majority puts our 

circuit at odds with the others, to say nothing of our own 

prior precedent. In the process, the majority disrupts longestablished sentencing practices in our district courts—

practices we had long approved.

While the majority professes that the defendant’s 

sentence here is “egregious,” it is easy to understand why the 

Sentencing Commission disagreed with the majority’s 

theory of penology. Ruslan Kirilyuk and his co-conspirators 

stole more than 220 identities, many of them high school 

students whose confidential information the conspirators 

lifted from stolen school transcripts. They opened sham 

bank and merchant accounts in the names of these 

unsuspecting victims and then used stolen account 

information for 120,000 American Express cards to make 

more than 190,000 fraudulent transactions. The Sentencing 

Commission and district court (which declined to exercise 

its discretion to impose a lower loss enhancement) could 

easily conclude that the $1.4 million in completed charges 

resulting from Kirilyuk’s scheme—halted only because 

authorities discovered it—nowhere near reflects the true 

scope of his criminality. That, of course, is the judgment 

Yellowe held the Sentencing Commission and district courts 

were permitted to reach.

While I join the remainder of the majority opinion, I 

dissent from that part of the decision invalidating the percard multiplier.
UNITED STATES V. KIRILYUK 27

I

A

I begin where this issue should have ended: the binding 

force of circuit precedent. Adherence to circuit precedent is 

not a mere “housekeeping” matter, as the majority would 

have it. Maj. Op. 9. Three-judge panels must follow circuit 

precedent except “where the reasoning or theory of our prior 

circuit authority is clearly irreconcilable with the reasoning 

or theory of intervening higher authority.” Miller v. 

Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). “This 

venerable principle commands our utmost respect and is 

central to the rule of law in appellate decision-making.” 

Lambert v. Saul, 980 F.3d 1266, 1274 (9th Cir. 2020). En 

banc review, not panel re-review, is the required mechanism 

for addressing prior decisions that we believe are wrongly 

decided. Miller, 335 F.3d at 900. The majority violates 

these fundamental precepts.

The Sentencing Guidelines provide that, for certain 

crimes, if “the loss exceeded $6,500,” the defendant’s 

offense level should be increased based on the amount of 

loss. U.S.S.G. § 2B1.1(b)(1). The Guidelines do not 

themselves define “loss.” But in the Guidelines 

commentary, “loss” is generally defined as “the greater of 

actual loss or intended loss.” Id. § 2B1.1 cmt. n.3(A). 

“Actual loss” is “the reasonably foreseeable pecuniary harm 

that resulted from the offense,” while “intended loss” 

generally consists of “the pecuniary harm that the defendant 

purposely sought to inflict,” including harm “that would 

have been impossible or unlikely to occur.” Id. cmt. 

n.3(A)(ii). Regardless of the method of measurement, “[t]he 

court need only make a reasonable estimate of the loss.” Id.

cmt. n.3(C).
28 UNITED STATES V. KIRILYUK

The Guidelines commentary provides some special rules 

“to assist in determining loss” for certain offenses. Id. cmt. 

n.3(F). In cases involving credit cards, among other 

“unauthorized access devices,” “loss includes any 

unauthorized charges made with the unauthorized access 

device and shall not be less than $500 per access device.” 

Id. cmt. n.3(F)(i). The Sentencing Commission originally 

determined that the loss would presumptively be at least 

$100 per credit card. Id. cmt. n.4 (1987). The Commission 

then increased the amount to $500 more than twenty years 

ago, after Congress directed it to review whether the amount 

was sufficiently punitive. U.S.S.G. app. C, vol. II, at 57–63. 

But the commentary makes clear that “[t]here may be cases 

in which the offense level determined under this guideline 

substantially overstates the seriousness of the offense,” and 

that “[i]n such cases, a downward departure may be 

warranted.” U.S.S.G. § 2B1.1, cmt. n.21(C).

In United States v. Yellowe, 24 F.3d 1110 (9th Cir. 1994), 

the defendant pleaded guilty to conspiring to possess and use 

unauthorized access devices. Id. at 1111. Through a scheme 

that bears eerie similarity to Kirilyuk’s, Yellowe conspired 

to use thousands of credit card numbers to make fraudulent 

purchases, routed the charges into fake merchant accounts, 

and then transferred the funds to his company. Id. at 1111–

12.

The district court found Yellowe had misused at least 

7,000 credit card numbers and multiplied that number “by 

the presumed minimum loss of $100 per card” that was then 

set out in Application Note 4 (now Application Note 3(F)(i)) 

to U.S.S.G. § 2B1.1. Id. at 1112. The district court thus 

concluded that Yellowe was responsible for over $700,000 

in loss, setting his offense level and Guidelines range 

accordingly. Id.
UNITED STATES V. KIRILYUK 29

We affirmed the district court’s application of the $100-

per-card multiplier. In doing so, we specifically rejected 

Yellowe’s argument that “the district court misapplied the 

Guidelines by using the $100 minimum loss mandated when 

a credit card is used rather than determining the intended 

loss based on what Yellowe believed the scheme would 

produce.” Id. at 1112 (emphasis added). The majority here 

nonetheless adopts the position we rejected in Yellowe, 

holding that Kirilyuk can be responsible only for the 

$1.4 million in losses his scheme actually caused (or 

possibly the $3.4 million in losses he intended to cause, 

although the majority’s reasoning makes even that doubtful, 

as I explain below). Maj. Op. 18. In so holding, the majority 

opinion directly contradicts Yellowe, which confirmed that 

the “loss” need not be actual or intended loss and may 

instead be the $100-per-card (now $500-per-card) 

presumptive loss that Kirilyuk challenges. See 24 F.3d 

at 1113.

Yellowe also explained why the $100-per-card multiplier 

was valid. Specifically, because “the value of the 

unauthorized use exceeds the intrinsic value of the device,” 

“to determine loss based on the value of the card or the 

number alone would understate the severity of the offense.” 

Id. at 1113. Yellowe’s holding was clear: “We now explicitly 

hold that loss under Application Note 4 to § 2B1.1 includes 

any unauthorized charges made with stolen credit card 

numbers, as well as cards. This loss is a presumed loss, 

setting a floor beneath which neither ‘actual’ nor ‘intended’ 

loss may fall.” Id. (emphasis in original). Once the per-card 

multiplier applies and “there is no dispute about the number 

of stolen numbers,” Yellowe held, the defendant’s 

“subjective intent is immaterial.” Id. (emphasis added). We 

thus rejected Yellowe’s argument—which is Kirilyuk’s 

same argument—that “because determining ‘intended loss’ 
30 UNITED STATES V. KIRILYUK

is the goal of the guideline, the focus should be on his 

knowledge and intentions.”

The majority claims that Kirilyuk is not making this 

same argument as Yellowe, Maj. Op. 12 n.3, but in 

substance, this is Kirilyuk’s entire point. Throughout his 

briefing, Kirilyuk maintains that the multiplier wrongly 

imposes a $500 per-card loss “regardless of the actual or 

intended pecuniary harm, even when (as here) all available 

evidence is that actual and intended losses are far lower.” 

Kirilyuk Opening Br. 54; see also id. at 57 (“mandatory use 

of the application note 3, regardless of whether it is 

consistent with the evidence of actual or intended loss, 

creates an artificially high loss amount in cases like this one, 

which does not accurately reflect the seriousness of the 

crime”). As Kirilyuk informed us, the problem with the percard multiplier is that it “artificially inflates the amount of 

the intended loss and, by logical implication, overstates the 

seriousness of the offense.” Id. at 56. There are numerous 

similar statements throughout Kirilyuk’s briefing,1

1 See, e.g., id. at 23 (arguing that “the loss amount is grossly 

disproportionate to the actual or intended loss or Kirilyuk’s role in the 

crime”); id. at 52–53 (arguing that “the district court had to take a 

realistic, economic approach to determine what losses [Kirilyuk] truly 

caused or intended to cause” (alteration in original) (quotations 

omitted)); id. at 53 (“the district court should not have ascribed to 

Kirilyuk a larger loss tha[n] he inflicted or intended to inflict”); id. at 55 

(“Presumed loss completely divorced from the evidence of actual or 

intended loss would greatly overstate the seriousness of the crime.”); 

Kirilyuk Reply Br. 2 (“there is no evidence that actual or intended loss 

here can be reasonably estimated as $500 per card”); id. at 3 n.2 (“One 

of the arguments we made to the $500-per-card multiplier is that it 

conflicts with § 2B1.1 because it requires imposition of $500-per-card 

loss, regardless of the losses Kirilyuk did or intended to cause.”); id. at 36 

(challenging the use of the multiplier “despite lack of evidence of the 

actual or intended loss being anywhere close to that amount”); Kirilyuk 
UNITED STATES V. KIRILYUK 31

confirming that at its core, the argument Kirilyuk makes here 

is the same one Yellowe made many years ago.

Yellowe also held that the per-card multiplier applied to 

credit card numbers in addition to credit cards. The majority 

seizes on that point to claim that “the central question in 

[Yellowe] was narrow.” Maj. Op. 11. The majority’s 

reading of Yellowe is unduly narrow. Yellowe did hold that 

the multiplier applies to credit card numbers in addition to 

cards. But that was not the full extent of Yellowe’s holding. 

Instead, Yellowe squarely and necessarily held that the percard multiplier is a permissible application of “loss” under 

§ 2B1.1. 24 F.3d at 1113. The defendant wanted a lower 

loss amount based on actual or intended loss, and we said 

“no.” This holding had nothing to do with any distinction 

between credit card numbers and physical credit cards. And 

in any event, Kirilyuk himself misused credit card numbers 

and not the card themselves; he is squarely within Yellowe, 

factually and legally.

The majority is not free to ignore Yellowe simply 

because Yellowe did not cite Stinson v. United States, 

508 U.S. 36 (1993), or perform an analysis specifically 

tailored to that case. The Stinson argument that Kirilyuk 

makes now, and that the majority credits, is simply a 

refreshed version of the argument we rejected in Yellowe. 

Substantively, the two arguments are the same. Stinson

requires us to ask whether the per-card multiplier is 

“inconsistent with, or a plainly erroneous reading of” the 

2d Suppl. Br. 1–2 (“at least when, as here, the actual or intended loss is 

known to be far lower than $500 per access device, reliance on that 

commentary violates Stinson”); id. at 19 (arguing that the Stinson

argument was preserved because “Kirilyuk objected to the use of the 

$500-per-access-device rule because it is not based on pecuniary harm 

(whether actual or intended)”).
32 UNITED STATES V. KIRILYUK

Guidelines. 508 U.S. at 38. When interpreting the 

Guidelines, we “will most often begin and end with the 

structure of the Guidelines,” and “may also look to the 

provision’s history and purpose, such as by consulting the 

Commission’s statements of reason for a particular 

amendment.” United States v. Martinez, 870 F.3d 1163, 

1166 (9th Cir. 2017) (quotations omitted).

Yellowe undertook that inquiry. Yellowe reviewed the 

relationship of the per-card multiplier to the Guidelines and 

to other commentary, as well as the multiplier’s purpose—

to more closely approximate “the severity of the offense.” 

See 24 F.3d at 1112–13. Yellowe also acknowledged the 

Guidelines’ references to “intended” loss and how “‘loss 

need not be determined with precision, and may be inferred 

from any reasonably reliable information available, 

including the scope of the operation.’” Id. at 1112 & n.1 

(quoting U.S.S.G. § 2B1.1, cmt. n.3). Yellowe then held that 

the multiplier was a proper application of “loss,” and not a 

“misappli[cation] [of] the Guidelines,” as Yellowe had 

argued. Id. at 1113. We thus allowed the multiplier 

notwithstanding Yellowe’s argument that “because 

determining ‘intended loss’ is the goal of the guideline, the 

focus should be on his knowledge and intentions.” Id.

The majority’s suggestion that the validity of the percard multiplier was merely “lurk[ing] in the record” in 

Yellowe, or “not considered” or merely “assumed” there, is 

simply inaccurate. Maj. Op. 10. At issue in Yellowe was 

whether the multiplier was a permissible application of the 

Guidelines in a case like this one, where the multiplier 

resulted in a higher loss amount than the defendant’s actual 

or intended loss. Yellowe upheld the use of the multiplier 

against that challenge. And contrary to the majority, Yellowe 

very much “consider[ed] the implications” of this 
UNITED STATES V. KIRILYUK 33

determination, which was to result in a longer sentence for 

Yellowe and those like him. Maj. Op. 10.

2

Circuit precedent must be read for its holdings and its 

reasoning, in tandem. “In determining whether we are 

bound by an earlier decision, we consider not only the rule 

announced, but also the facts giving rise to the dispute, [and] 

other rules considered and rejected.” In re NCAA Athletic 

Grant-in-Aid Cap Antitrust Litig., 958 F.3d 1239, 1253 (9th

Cir. 2020) (quotations and alterations omitted). Judicial 

decisions, conceptual in nature, are not statutes; the omission 

of a particular word (or here, a case citation) in a judicial 

opinion does not establish that the case did not hold what it 

clearly did. Today’s decision is directly opposed to Yellowe

in its result and reasoning. Under the majority opinion, 

Yellowe was wrongly decided.

The majority has exceeded its authority. Three-judge 

panels are “not free to disregard the decision of another panel 

of our court simply because we think the arguments have 

been characterized differently or more persuasively by a new 

litigant.” United States v. Ramos-Medina, 706 F.3d 932, 939 

(9th Cir. 2013); see also Cnty. of San Mateo v. Chevron 

Corp., 960 F.3d 586, 597 (9th Cir. 2020), vacated on other 

grounds, 141 S. Ct. 2666 (2021) (“Precedents . . . do not 

cease to be authoritative merely because counsel in a later 

case advances new arguments.”). When we have “found a 

similar argument insufficient” in a prior case, “we are bound 

2 Perhaps ironically, the majority concludes that Kirilyuk preserved 

his Stinson argument in the district court, even though he did not couch 

it in terms of Stinson. Maj. Op. 13. But for the majority, that same 

reasoning is not sufficient when it comes to interpreting our own circuit 

precedent. If Stinson is truly a different argument than the one we 

addressed in Yellowe, the majority should find Kirilyuk’s argument 

forfeited.
34 UNITED STATES V. KIRILYUK

by that holding to reach the same conclusion here.” 

Pensinger v. Chappell, 787 F.3d 1014, 1028 (9th Cir. 2015). 

As one of our colleagues has written, “[t]he fact that a prior 

panel may not have considered a particular argument, or line 

of thought, in reaching its bottom line does not provide a 

valid basis for distinguishing otherwise controlling 

precedent.” United States v. Davis, 428 F.3d 802, 809 (9th 

Cir. 2005) (Callahan, J., dissenting in part).

Because Yellowe is not “clearly irreconcilable with the 

reasoning or theory of intervening higher authority,” Miller, 

335 F.3d at 893, we must follow it. The majority seriously

errs in concluding otherwise.

B

Further confirming that Yellowe supplies our rule of 

decision, numerous cases from this court have upheld 

applications of the per-card multiplier or have otherwise 

acknowledged the multiplier as the governing rule. 

Although the majority gestures in a footnote to a handful of 

these cases, there are far more than the majority 

acknowledges. This lengthy set of decisions—which 

includes that of Kirilyuk’s own co-defendant—shows that 

we certainly have not regarded the validity of the multiplier 

as the “open question” the majority posits:

• United States v. Chew, 804 F. App’x 492, 494–95 

(9th Cir. 2020), relying on Yellowe, affirmed the 

district court’s use of the multiplier. We cited 

Yellowe as “holding that it was not clearly erroneous 

for a district court to calculate loss by multiplying the 

minimum loss calculation by the amount of useable 

credit cards in the defendant’s possession.” Id.

• United States v. Gaussiran, 787 F. App’x 458, 460 
UNITED STATES V. KIRILYUK 35

(9th Cir. 2019), affirmed that the defendant had 

possessed sufficient useable unauthorized access 

devices to support the district court’s loss 

calculation, which employed the per-card multiplier. 

We cited the multiplier rule and concluded that “the 

district court did not abuse its discretion in including 

$500 for each card in its calculation.” Id.

• United States v. Jackson, 721 F. App’x 631, 633 (9th 

Cir. 2018), explained that the “plain language of the 

guidelines indicates there is a floor on each device: 

the greater of the loss resulting from the unauthorized 

charges or $500,” and affirmed the district court’s 

application of the multiplier.

• United States v. Dobadzhyan, 677 F. App’x 454, 455 

(9th Cir. 2017), relied on Yellowe to conclude that 

courts “may impose a charge of $500 per counterfeit 

access device number,” and held “that the district 

court did not err by adding $643,500 to the total 

amount of loss based on the 1,287 access device 

numbers.”

• United States v. Wilburn, 627 F. App’x 659, 659–60 

(9th Cir. 2015), affirmed the defendant’s sentence 

where he received a 12-level increase because 

“calculating loss at $500 per access device,” he 

“possessed at least 471 unique stolen account 

numbers resulting in an intended loss of $235,000.”

• United States v. Masters, 613 F. App’x 618, 621 (9th 

Cir. 2015), affirmed application of the multiplier and 

resulting 14-level loss enhancement.

• United States v. Nguyen, 543 F. App’x 715, 716 (9th 

Cir. 2013), explained that “[f]or crimes involving 
36 UNITED STATES V. KIRILYUK

stolen or counterfeit credits cards and access devices, 

loss may be calculated at $500 per access device.” 

Citing Yellowe, we noted that the district court “was 

not required to take into account Nguyen’s 

anticipated likelihood of success using access 

devices he obtained.” Id. We thus affirmed the 

defendant’s 20-level loss enhancement.

• United States v. Karapetian, 473 F. App’x 603 (9th 

Cir. 2012), affirmed the defendant’s sentence, which 

was based on the district court’s $500-per-card loss 

calculation.

• United States v. Truong, 587 F.3d 1049, 1051–52 

(9th Cir. 2009) (per curiam), rejected the defendant’s 

argument that gift cards did not qualify as access 

devices, and thus affirmed the district court’s 

sentence, which was based on the per-card 

multiplier.

• United States v. Camper, 337 F. App’x 631, 632–33 

(9th Cir. 2009), relied on Yellowe to conclude that the 

“district court correctly calculated the total loss by 

applying the Sentencing Guidelines’ $500 presumed 

loss to each of the 1,531 stolen credit cards.” We 

explained that Yellowe held “that the district court 

did not clearly err when it calculated loss by 

multiplying the Sentencing Guidelines’ minimum 

loss figure by the number of workable credit card 

numbers in Yellowe’s possession, even though none 

of the numbers had been used to purchase items 

fraudulently.” Id. at 633.

• United States v. Levine, 87 F. App’x 44, 45 (9th Cir. 

2004), held that the district court did not err “in 
UNITED STATES V. KIRILYUK 37

calculating the total loss by multiplying 2,071 by the 

$500 minimum loss calculation.” We emphasized, 

citing Yellowe, that the “minimum loss calculation 

applies regardless of whether the unauthorized credit 

card was actually used to make fraudulent purchases 

or not.” Id.

• United States v. Nguyen, 81 F.3d 912, 913–15 (9th 

Cir. 1996), held that blank credit cards qualify as 

access devices, so the district court had not erred in 

applying the $100-per-card multiplier. “Because 

there was no actual loss in this case, each access 

device was assigned a loss of $100.” Id. at 914 

(citing U.S.S.G. § 2B1.1, cmt. n.4).

These cases confirm that we have consistently 

recognized and applied Yellowe’s rule for decades. Under 

today’s decision, however, these cases should have come out 

differently. And that is to say nothing of the many instances 

in which district courts applied the multiplier but where the 

defendant did not appeal that issue, or the case did not reach 

us at all, because a challenge to the multiplier was so clearly 

foreclosed by precedent.

But there is more. Remarkably, and though it buries the 

point in a footnote, the majority invalidates the per-card 

multiplier even though we recently upheld its application to 

Kirilyuk’s own co-defendant, Mihran Melkonyan. See 

United States v. Melkonyan, 831 F. App’x 319 (9th Cir. 

2020). And we did so even though Melkonyan relied on 

Stinson’s test.

Melkonyan, like Kirilyuk, received the same 22-level 

enhancement based on the $500-per-card multiplier for his 

role in Kirilyuk’s same fraudulent scheme. Id. at 319. In his 

opening brief on appeal, Melkonyan argued that the per-card 
38 UNITED STATES V. KIRILYUK

multiplier “conflicts with the court’s role of determining a 

reasonable estimate of the loss,” and that “the court should 

not be forced to follow the $500 per credit card rule.” 

Melkonyan Opening Brief at 30–31, No. 19-10026, Dkt. 

No. 12. Just like today’s majority opinion, Melkonyan relied 

on United States v. Rising Sun, 522 F.3d 989, 996 (9th Cir. 

2008), a Stinson case, to advance Stinson’s rule: 

“Application notes like this one are treated as authoritative 

interpretations of the Sentencing Guidelines unless they 

violate the Constitution or a federal statute or are 

inconsistent with, or [are a] plainly erroneous reading of, the 

Guideline they are meant to interpret.” Melkonyan Opening

Brief at 31–32 (quoting Rising Sun, 522 F.3d at 996, and 

noting that Rising Sun was “citing Stinson”). Just like 

Kirilyuk, Melkonyan argued that he caused approximately 

$1.5 million in actual losses, so that the multiplier’s 

application resulted in an “inflated figure.” Id. at 32.3

In its answering brief, the government responded that 

Yellowe foreclosed Melkonyan’s argument. Answering 

Brief at 21–27, Dkt. No. 26. The government also relied on 

Stinson to argue that Application Note 3(F)(i) did not 

conflict with “the Guidelines section it interprets” or any 

other Guidelines commentary. Id. at 21–22. And it pointed 

out that “this Court has repeatedly upheld sentencing courts’ 

use of the $500 valuation to calculate loss.” Id. at 24.

3 The majority claims that Melkonyan only invoked Stinson to argue 

that the per-card multiplier conflicted with other portions of the 

Guidelines commentary. Maj. Op. 12 n.4. But Stinson concerns 

conflicts with the Guidelines themselves. Melkonyan thus argued that 

his sentence should be based on his actual or intended loss, which is what 

he claimed should have governed the assessment of how much “loss” he 

was responsible for under the Guidelines.
UNITED STATES V. KIRILYUK 39

We rejected Melkonyan’s argument. We quoted Yellowe

and reiterated that the per-card multiplier “establishes ‘a 

presumed loss, setting a floor beneath which neither “actual” 

nor “intended” loss may fall.’” Melkonyan, 831 F. App’x 

at 319 (quoting Yellowe, 24 F.3d at 1113). Citing Yellowe, 

we continued: “Here, because the number of unauthorized 

access devices is not in dispute, multiplying that number by 

$500 is the correct application of the Sentencing Guidelines, 

and the defendant’s subjective intent as to actual loss is 

immaterial.” Id. at 319–20 (citing Yellowe, 24 F.3d at 1113) 

(emphasis added). The majority here not only contradicts 

Yellowe but treats differently two co-defendants who 

received identical loss enhancements for the same fraudulent 

scheme. It is hard to see what justice there is in that, 

especially when Kirilyuk was the ringleader.

Melkonyan was an unpublished decision. But in these 

circumstances, that makes the majority’s opinion here even 

more troubling. That the disposition was non-precedential 

confirms that Melkonyan’s Stinson argument was readily 

resolved based on established law. The same can be said of 

the other unpublished cases I cited above. In our 

unpublished dispositions, there should be “no new legal 

holdings, just applications of established law to facts.” 

Grimm v. City of Portland, 971 F.3d 1060, 1067 (9th Cir. 

2020). Indeed, the Melkonyan panel evidently viewed the 

case as so straightforward that it submitted the matter on the 

briefs without oral argument. Melkonyan, 831 F. App’x at 

319 n.*.

Melkonyan is just further indication of what decades of 

circuit precedent confirms: that before today, it was settled 

law that the per-card multiplier is a permissible application 

of the Guidelines. That the law was so settled likely explains 

why we do not have even more cases involving such 
40 UNITED STATES V. KIRILYUK

challenges: they would clearly fail, just as every one of them 

has until now.

II

Even setting aside Yellowe, the majority’s holding is 

incorrect on its own terms. In invalidating the multiplier, the 

majority badly misapplies Stinson, creates a lopsided split 

with our sister circuits, and embraces an anomalous 

concurring opinion from a Sixth Circuit case that involved 

critically different facts. In the process, the majority 

converts one possible approach to sentencing policy into a 

hard legal rule, preventing district courts in appropriate cases 

from effectuating the Sentencing Commission’s judgment 

that other measures of loss do not adequately capture the 

seriousness of offenses like the one before us.

A

In 1987, the Sentencing Commission promulgated the 

first version of the Guidelines Manual, which includes the 

Guidelines and the Commission’s commentary. The 

Guidelines state that the commentary “may interpret the 

guideline or explain how it is to be applied.” U.S.S.G. 

§ 1B1.7. The Guidelines further make clear that “[f]ailure 

to follow such commentary could constitute an incorrect 

application of the guidelines, subjecting the sentence to 

possible reversal on appeal.” Id. Citing the Guidelines’ 

treatment of the commentary and Congress’s grant of 

authority to the Commission, Stinson held that the 

Guidelines commentary is “authoritative,” “controls,” and is 

“binding” on courts. 508 U.S. at 40, 42–43.

Stinson also carved out narrow situations in which 

Guidelines commentary is not binding. Specifically, 

commentary “that interprets or explains a guideline is 
UNITED STATES V. KIRILYUK 41

authoritative unless it violates the Constitution or a federal 

statute, or is inconsistent with, or a plainly erroneous reading 

of, that guideline.” Stinson, 508 U.S. at 40. But Stinson

clarified that “inconsistent with” means diametrically 

opposed, where following either the Guidelines or the 

commentary “will result in violating the dictates of the 

other.” Id. at 43 (emphasis added); see also Rising Sun, 

522 F.3d at 996 (same). Stinson thus disapproved of courts 

“refus[ing] to follow commentary in situations falling short 

of such flat inconsistency.” Id. Stinson also recognized that 

“commentary explains the guidelines and provides concrete 

guidance as to how even unambiguous guidelines are to be 

applied in practice.” Id. at 44.

Two circuits, including the Sixth Circuit in United States 

v. Riccardi, 989 F.3d 476, 483 (6th Cir. 2021), have recently 

held that courts should now evaluate the validity of 

Guidelines commentary under the less deferential test set 

forth in Kisor v. Wilkie, 139 S. Ct. 2400 (2019). See also 

United States v. Nasir, 17 F.4th 459, 471–72 (3d Cir. 2021) 

(en banc). Kisor held that a court can defer to an agency’s 

interpretation of a regulation only after determining that the 

regulation is “genuinely ambiguous,” and only if the 

agency’s interpretation falls “within the zone of ambiguity 

the court has identified after employing all its interpretive 

tools.” Id. at 2414, 2416.

Other courts have disagreed and have held that Stinson

continues to apply to Guidelines commentary. See United 

States v. Moses, — F.4th —, 2022 WL 163960, at *1 (4th 

Cir. Jan. 19, 2022); United States v. Cruz-Flores, 799 F. 

App’x 245, 246 (5th Cir. 2021). The issue is a weighty one 

because if Kisor were to apply, it “would negate much of the 

Commission’s efforts in providing commentary to fulfill its 

congressionally designated mission,” while leading to 
42 UNITED STATES V. KIRILYUK

“substantial litigation and divisions of authority regarding 

the extent to which each Guideline is ‘genuinely 

ambiguous,’ even after ‘all the traditional tools of 

construction’ have been ‘exhaust[ed].’” Moses, 2022 WL 

163960, at *7 (quoting Kisor, 139 S. Ct. at 2415).

The debate over Stinson versus Kisor should be 

irrelevant in this case because our circuit has continued to 

apply Stinson to Guidelines commentary after Kisor. See, 

e.g., United States v. Herrera, 974 F.3d 1040, 1047 (9th Cir. 

2020); United States v. George, 949 F.3d 1181, 1185 (9th 

Cir. 2020); United States v. Wang, 944 F.3d 1081, 1086 (9th 

Cir. 2019); United States v. Cuevas-Lopez, 934 F.3d 1056, 

1061 (9th Cir. 2019); United States v. Crum, 934 F.3d 963, 

966 (9th Cir. 2019). In this circuit, Stinson is still the 

governing law for evaluating Guidelines commentary.

The majority here thus purports to apply Stinson while 

disclaiming any position on whether Kisor should be the 

right test. Maj. Op. 19–20. As we will see, however, the 

majority’s application of Stinson is nothing of the sort. And

its refusal to acknowledge legitimate and long-applied 

commentary is just Kisor in disguise.

The $500-per-card multiplier easily satisfies Stinson. No 

one suggests that the multiplier violates the Constitution or 

a federal statute. See Stinson, 508 U.S. at 40. Nor is the 

multiplier “inconsistent with, or a plainly erroneous reading 

of” the Guidelines. See id. The Guidelines create graduated 

offense level increases based on the amount of “the loss.” 

U.S.S.G. § 2B1.1(b)(1). “Loss” is the only operative word 

here. But the Guidelines do not define what “loss” means, 

how to calculate it, or the precision by which a “loss” amount 

should be assessed.
UNITED STATES V. KIRILYUK 43

“Loss” could mean “actual” out-of-pocket loss, but it 

could also mean “intended” loss, even if the intended loss 

“would have been impossible or unlikely to occur.” Id.

§ 2B1.1 cmt. n.3(A)(ii) (listing as an example a government 

sting operation); see also United States v. Popov, 742 F.3d 

911, 915 (9th Cir. 2014). “Loss” could even mean “the gain 

that resulted from the offense,” provided “there is a loss but 

it reasonably cannot be determined.” Id. § 2B1.1 cmt.

n.3(b); see also United States v. Martin, 796 F.3d 1101, 1111 

(9th Cir. 2015) (“[D]istrict courts may use the defendant’s 

gain as another way to measure the loss.”). None of these 

ways of viewing “loss” is inconsistent with or a plainly 

erroneous reading of the Guidelines. See Stinson, 508 U.S. 

at 38. The Commentary also states that “[t]he court need 

only make a reasonable estimate of the loss.” Id. cmt. 

n.3(C). We have long recognized that this too is appropriate. 

See, e.g., United States v. Tadios, 822 F.3d 501, 503 (9th Cir. 

2016); United States v. Armstead, 552 F.3d 769, 778 (9th 

Cir. 2008); United States v. Lopez, 64 F.3d 1425, 1427 (9th 

Cir. 1995).

The per-card multiplier is just an offense-specific 

application of “loss” under § 2B1.1, consistent with the 

“reasonable estimate” requirements. See Yellowe, 24 F.3d 

at 1112–13. Just as “loss” can mean actual or intended 

loss—two concepts that are not specifically stated in the 

Guidelines either—it can mean a presumptive dollar amount 

that is intended reasonably to estimate the pecuniary harm 

resulting from a particular offense. Nothing in the word 

“loss” prohibits the Sentencing Commission from assigning 

a presumptive monetary value to a given act of misconduct 

based on the Commission’s experience with that crime. See 

id. at 1113 (explaining that loss can be “a presumed loss, 

setting a floor beneath which neither ‘actual’ nor ‘intended’ 

loss may fall”). Thus, following the per-card multiplier in 
44 UNITED STATES V. KIRILYUK

the commentary does not lead the sentencer to “violate the 

dictates” of the Guidelines. Stinson, 508 U.S. at 43.

The history of the multiplier supports this. The original 

$100-per-card multiplier was included in the first iteration of 

the Guidelines commentary. Riccardi, 989 F.3d at 482. 

Prior to taking effect, the first Guidelines Manual was made 

available for public comment and congressional review. See

Moses, 2022 WL 163960, at *5. The original $100-per-card 

multiplier remained unchanged until 2000, when, in 

response to a directive from Congress, see Identity Theft and 

Assumption Deterrence Act of 1998, Pub. L. 105-318, 

§ 4(a), 112 Stat. 3007, 3009 (1998); Wireless Telephone 

Protection Act, Pub. L. 105-172, § 2(e)(1), 112 Stat. 53, 55 

(1998), the Sentencing Commission adopted Amendment 

596, which increased the multiplier to $500. U.S.S.G. app. 

C, vol. II, at 57–63. In Amendment 596, the Commission 

explained that Congress had directed it to “review the extent 

to which the value of the loss caused by the offenses is an 

adequate measure of establishing penalties.” Id. at 62 

(quotations and alterations omitted). The Commission 

concluded that its “research and data supported increasing 

the minimum loss amount . . . from $100 to $500 per access 

device.” Id.

This history shows that the Commission aimed to 

approximate the loss associated with an offense like 

Kirilyuk’s. Under Stinson, nothing in the word “loss” 

precluded it from doing so. And using a presumptive dollar 

value per card has the benefit of promoting uniformity in 

sentencing, making it more likely that defendants who 

commit credit-card fraud offenses will receive similar loss 

enhancements.
UNITED STATES V. KIRILYUK 45

B

The majority nevertheless claims the multiplier is 

“clearly inconsistent” with the Guidelines. Maj. Op. 19. 

This holding is deeply flawed. It would of course be 

surprising to learn that in the decades since Yellowe, 

numerous judges applying the per-card multiplier at the trial 

and appellate levels have unwittingly enforced a facially 

improper application of “loss.” Fortunately, that is not the 

case. Guidelines commentary is impermissibly inconsistent 

with the Guidelines only when “following one will violate 

the dictates of the other.” Stinson, 508 U.S. at 43. And there 

is no such “flat inconsistency” here. Id.

On this point, I recite the majority’s core reasoning in 

full. The majority quotes the discussion of dictionary 

definitions of “loss” in Riccardi and then says:

Though dictionary definitions for “loss” may 

vary, they make one thing clear: “No 

reasonable person would define the ‘loss’ 

from a stolen [credit] card as an automatic 

$500” rather than a fact-specific amount. Id.

Instead, § 2B1.1 is driven by “the amount of 

loss caused by the crime.” Gainza, 982 F.3d 

at 764 (emphasis added). So “loss” cannot 

mean a pre-determined, contrived amount 

with no connection to the crime committed, 

even if it is based on the Commission’s 

“research and data.” Application Note 

3(F)(i) thus doesn’t illuminate the meaning of 

‘loss,’ but modifies it.

Maj. Op. 18 (brackets and alterations in original; the “Id.” 

citation is of Riccardi). Unpacking each piece of this is 

critical for appreciating the majority’s error.
46 UNITED STATES V. KIRILYUK

First, the majority’s reliance on Riccardi raises obvious 

red flags because the Sixth Circuit in that case invalidated 

the $500-per-card multiplier under Kisor, not Stinson. See 

Riccardi, 989 F.3d at 486. Invoking Riccardi’s Kisor-based 

discussion of dictionary definitions and what a “reasonable 

person” would think, the majority asserts that “loss” must be 

“the amount of loss caused by the crime,” Maj. Op. 16

(quoting Gainza, 982 F.3d at 764) (emphasis in majority 

opinion), by which the majority apparently means the actual 

loss associated with a crime.

But this is not a Stinson analysis: the question here is not 

whether the word “loss” is ambiguous in some sense but 

whether the multiplier is flatly inconsistent with the 

Guidelines. Stinson, 508 U.S. at 43; Rising Sun, 522 F.3d 

at 996. The majority says that “‘loss’ cannot mean a predetermined” amount. Maj. Op. 18. But under Stinson, 

where is the flat inconsistency? Nothing in the word “loss” 

or the Guidelines more generally prevents the Commissioner 

from ascribing a presumptive loss value to a particular 

offense, much less creates a situation in which applying the

commentary “violates the dictates of” the Guidelines. 

Stinson, 508 U.S. at 43; see also Yellowe, 24 F.3d at 1112–

13.

Not only does the majority fail to apply a true Stinson 

analysis, the majority’s assertion that we are required to 

invalidate the per-card multiplier based on the “plain 

meaning” of “loss” is simply unfounded. Maj. Op. 16–18 & 

n.6. The unadorned and undefined word “loss” does not 

remotely demand the majority’s wooden reading, especially 

in the context of the Guidelines as a whole, which are 

designed to ensure punishments that reflect a defendant’s 

criminality. U.S.S.G. Ch. 1, Pt. A, intro., 3.
UNITED STATES V. KIRILYUK 47

The majority’s supposed “plain meaning” approach 

would also call into question many other established 

measures of “loss.” As I have explained above, the 

Commentary has long treated “loss” as including “intended” 

loss, U.S.S.G. § 2B1.1 cmt. n.3(A)(ii), among many other 

offense-specific interpretations of “loss,” id. § 2B1.1 cmt. 

n.3(A), (F). “Intended” loss also does not reflect “loss 

caused by the crime.” Maj. Op. 18. But we have repeatedly 

treated this and other measures of “loss” as valid. See, e.g.,

Popov, 742 F.3d at 915; Martin, 796 F.3d at 1111. These 

other longstanding measures of “loss” would also now 

appear vulnerable under the majority’s improperly narrow 

reading of “loss.”

The majority’s repeated assertions that the Commission 

is “modifying” the Guidelines or making “policy” judgments 

prove nothing. Maj. Op. 18. Many aspects of the Guidelines 

and commentary reflect policy judgments; that does not 

make them unlawful under Stinson. And here, the 

commentary expressly notes that if the offense level 

“substantially overstates the seriousness of the offense,” “a 

downward departure may be warranted.” U.S.S.G. § 2B1.1, 

cmt. n.21(C). I fail to see how the commentary squarely 

violates the dictates of the Guidelines when it allows this 

flexibility.

Of course, for all its reliance on Riccardi, the majority 

alters its key quotation of that case by adding the word 

“credit” in brackets in place of “gift” card. Quoting 

Riccardi, the majority says: “‘No reasonable person would 

define the “loss” from a stolen [credit] card as an automatic 

$500’ rather than a fact-specific amount.” Maj. Op. 18

(quoting Riccardi, 989 F.3d at 486) (emphasis added). 

Riccardi involved gift cards, not credit cards. As I will 

explain further below, gift cards present a very different 
48 UNITED STATES V. KIRILYUK

situation than credit cards because they have a finite face 

value and their theft produces fewer collateral costs. But 

suffice to say, Riccardi had no occasion to extend its Kisor

analysis to credit cards. And the Sixth Circuit has since 

implied that Riccardi may not apply to credit cards. See 

United States v. Nicolescu, 17 F.4th 706, 720 (6th Cir. 2021) 

(“even if this court’s recent decision in United States v. 

Riccardi renders invalid any loss calculation based on a 

$500-per-stolen-credit-card multiplier . . . .”). By editing 

the quotation, the majority implies that Riccardi sweeps 

broader than the Sixth Circuit thus far has recognized.

Second, the majority purports to derive its “loss caused 

by the crime” test from United States v. Gainza, 982 F.3d 

762 (9th Cir. 2020). But the majority quotes a stray phrase 

in that case out of context. The language the majority quotes 

comes from this sentence: “For economic crimes, the 

Sentencing Guidelines provide for graduated increases to the 

base offense level depending on the amount of loss caused 

by the crime.” Gainza, 982 F.3d at 764. Nothing in this 

generic language in Gainza or the case as a whole purported 

to foreclose application of the per-card multiplier or any 

other established measure of “loss,” much less adopt the 

majority’s unnecessarily cramped “plain meaning” 

interpretation of that term.

In fact, the next sentence of Gainza states: “loss includes 

any unauthorized charges made with the unauthorized access 

device and shall be not less than $500 per access device.” 

Id. (quoting U.S.S.G. § 2B1.1 cmt. n.3(F)(i) (alterations 

omitted)). Gainza thus recognized the very rule the majority 

invalidates here. We even relied on Gainza in affirming 

Kirilyuk’s co-defendant’s sentence. There, we described 

Gainza as a case “referring with approval to the court’s use 

of the $500 minimum per access device found in Application 
UNITED STATES V. KIRILYUK 49

Note 3(F)(i) to determine amount of loss.” Melkonyan, 

831 F. App’x at 319 n.1 (emphasis added).

Third, the majority is improperly dismissive of the 

Commission’s guidance in claiming that the commentary’s 

approach to “loss” is a “contrived” one “with no connection 

to the crime committed.” Maj. Op. 18. That is a severe 

mischaracterization. After Congress directed the 

Commission to reevaluate its penalty provisions, the 

Commission’s Economic Crimes Policy Team produced two 

reports, which are publicly available, discussing possible 

changes to the loss amount. See Econ. Crimes Pol’y Team, 

U.S. Sent’g Comm’n, Cellular Phone Cloning Final Report, 

at 27 (Jan. 25, 2000); Econ. Crimes Pol’y Team, U.S. Sent’g 

Comm’n, Identity Theft Final Report, at 23 (Dec. 15, 1999); 

see also Riccardi, 989 F.3d at 482–83.

In one report, the Commission explained that the 

Department of Treasury had recommended increasing the 

presumptive loss per card to $1,000. Cellular Phone Cloning 

Final Report at 27 & n.47. Treasury had “cited credit card 

industry data that showed the average fraud loss in 1998 to 

be $1,040.59 per credit card.” Id. at 27. The Commission 

further recounted how “Treasury also cited 1999 Secret 

Service statistics indicating an average fraud loss per credit 

card of $2,218.” Id. These amounts were lower than the 

Commission’s own estimate of $3,775, which was based on 

“a sample of 109 federally sentenced credit card fraud cases 

for which the exact number of credit cards and exact amount 

of charges were known.” Id. at 27 & n.48. These loss figures 

considered only the fraudulent charges made on credit cards, 

not other pecuniary harms suffered by the cardholder or 

financial institutions.

In another report, the Commission acknowledged that 

the Guidelines arguably did “not provide adequate 
50 UNITED STATES V. KIRILYUK

punishment” because they did “not provide for consideration 

of indirect monetary harms to the individual victims, such as 

the costs incurred in attempting to repair damaged credit 

ratings.” Identity Theft Final Report at 23. This report cited 

the egregious example of an identity theft victim who spent 

nearly a year, “500 hours of her time,” and “incurred out-ofpocket costs of approximately $10,000” as a result of the 

offense. Id. at 23 n.37. The report also contemplated that 

“loss,” as it stood then, might not reflect “harm to an 

individual’s financial reputation, as well as the ensuing 

inconvenience” of identity theft. Id. at 24. In raising the percard loss multiplier from $100, the Commission thus 

considered not only average fraudulent charges per card, but 

also other associated losses.

The Commission then solicited comments identifying 

three potential alternatives: $500, $750, and $1,000. 

Sentencing Guidelines for United States Courts, 65 Fed. 

Reg. 2663, 2665–66 (Jan. 18, 2000). It received comments 

from, among others, the Department of Justice, a federal 

defender organization, and Treasury. See U.S. Sent’g 

Comm’n, Public Comment from March 2000, Part I, 

Amendment 6. The Commission ultimately went with the 

lowest amount, explaining in Amendment 596 that its 

“research and data supported increasing the minimum loss 

amount . . . from $100 to $500 per access device.” U.S.S.G. 

app. C, vol. II, at 62. Again, this was substantially lower 

than the average loss per card from the Commission’s own 

data-set, as well as the information provided by Treasury and 

the Secret Service.

The Commission provided notice of the amended percard multiplier to Congress for its review. Sentencing 

Guidelines for United States Courts, 65 Fed. Reg. 26,880, 

26,895 (May 9, 2000). Congress did not take further action 
UNITED STATES V. KIRILYUK 51

and the amendment went into effect later that year. All these 

events belie the majority’s castigation of the multiplier as 

“contrived.” And they confirm what we said in Yellowe: that 

other measures of loss “would understate the severity of the 

offense.” 24 F.3d at 1113.4

In a footnote, the majority suggests that “nothing 

prevents the Commission from amending the multiplier to a 

low of $1 or a high of $1 million.” Maj. Op. 19 n.7. This is 

pure hyperbole. In the decades since the per-card multiplier 

was adopted, the Sentencing Commission has used only two 

amounts: $100, and then, when prompted to revisit that 

amount by Congress, $500. The Sentencing Commission 

has not entertained an increase in the multiplier on anything 

like the scale the majority imagines.

And there would of course be constraints on the 

Commission’s ability to set the multiplier at $1 million per 

card. That preposterous number—which would far exceed 

any credit card spending limits of which I am aware—would 

not reflect a “reasonable estimate of the loss.” U.S.S.G. 

§ 2B1.1 cmt. n.3(c). It would also presumably not be 

supported by any data; would not be consistent with the 

18 U.S.C. § 3553(a) factors, see U.S.S.G. § 1B1.1 (directing 

courts to consider § 3553(a)); and could implicate other due 

4 The majority’s suggestion that Congress “lacks the power to 

modify or disapprove of Application Notes,” Maj. Op. 14–15, is 

incorrect. The majority relies on United States v. Prien-Pinto, 917 F.3d 

1155, 1157 (9th Cir. 2019), which in turn cited Stinson’s statement that 

“Congress does not review amendments to the Commentary,” 508 U.S. 

at 40. That the Sentencing Commission is not required to submit 

amendments to the commentary to Congress does not deprive Congress 

of the power to modify or disapprove of them. And here, the 

Commission did submit the amendment to Congress. 65 Fed. Reg. 

at 26,895.
52 UNITED STATES V. KIRILYUK

process and statutory limits. The majority’s undeveloped 

attempt to claim the Sentencing Commission could run 

roughshod in this area has no basis in law or reality.

The upshot is the following: applying a presumptive 

$500-per-card multiplier does not require us to “violate the 

dictates of” the Guidelines. Stinson, U.S. at 43. This case 

thus bears no resemblance to the few cases the majority cites 

invalidating commentary under Stinson, because each 

involved a direct conflict between a Guideline and 

application note. In Rising Sun, for instance, the relevant 

guideline provided a sentencing adjustment if the defendant 

obstructed justice during an investigation or prosecution, 

and we held that commentary suggesting obstruction could 

occur before the start of an investigation was “clearly 

inconsistent” with the guideline. Rising Sun, 522 F.3d 

at 995–96. Our decision in United States v. Lambert, 

498 F.3d 963, 971 (9th Cir. 2007), involved a similarly 

square conflict. And the statement the majority relies on 

from United States v. Powell, 6 F.3d 611, 614 (9th Cir. 

1993)—that we cannot render part of the Guidelines 

“meaningless”—is inapposite. The per-card multiplier does 

not render § 2B1.1 “meaningless.”

The majority identifies no case supporting its Kisoresque application of Stinson, which in any event directly 

conflicts with the holding and reasoning of Yellowe.

C

In disregarding our own law, the majority claims it is 

avoiding a circuit split. Maj. Op. 19–20. Untrue. The state 

of the law is this: until now, no court has rejected the percard multiplier under Stinson; our sister circuits have 

routinely applied it, just as we did before today; and the only 
UNITED STATES V. KIRILYUK 53

circuit to have rejected it (the Sixth) did so under Kisor and 

in a case involving gift cards, not credit cards.

The Seventh Circuit, for instance, has held that the $500-

per-card multiplier applies to all access devices a defendant 

possesses. See United States v. Moore, 788 F.3d 693, 695 

(7th Cir. 2015). Moore explained that the “commentary 

following the guideline is an authoritative interpretive aid for 

how the guideline should be applied,” and held that the plain 

text of Application Note 3(F)(i) establishes “that the $500 

per unauthorized access device amount of loss . . . applies to 

all unauthorized access devices in a case.” 788 F.3d at 695. 

The Eighth Circuit reached the same conclusion, holding 

that a district court did not err in applying the $500-per-card 

multiplier to counterfeit credit cards, regardless of whether 

the defendant used the card. United States v. Thomas, 

841 F.3d 760, 763–65 (8th Cir. 2016).

The First Circuit similarly rejected a challenge to the 

$500-per-card multiplier, explaining that “Application Note 

3(F)(i) provides that loss both (1) shall include any 

unauthorized charges made with the counterfeit access 

device or unauthorized access device and (2) shall be not less 

than $500 per access device regardless of whether each 

access device was actually charged.” United States v. 

Rueda, 933 F.3d 6, 9–11 (1st Cir. 2019) (quotations and 

alterations omitted). The First Circuit thus rejected the 

defendant’s argument “that the loss attributable to her 

offense should not be the $1,290,000 calculated by the 

District Court,” but “the $24,673.60 that was reflected in the 

victim impact statement,” which related to actual wrongful 

charges. Id. at 10. Under the majority’s reasoning, the First, 

Seventh, and Eighth Circuit decisions would have to come 

out the other way.
54 UNITED STATES V. KIRILYUK

Indeed, these and many other circuits—in total, the First, 

Second, Third, Fourth, Fifth, Seventh, Eighth, Tenth, and 

Eleventh—have repeatedly applied the per-card multiplier 

post-Stinson, recognizing it as the governing rule. See, e.g., 

United States v. Acevedo, 860 F. App’x 604, 612–13 (11th 

Cir. 2021); United States v. Graveran-Palacios, 835 F. 

App’x 436, 445 (11th Cir. 2020); United States v. Carver, 

916 F.3d 398, 402 (4th Cir. 2019); United States v. Sosa, 

773 F. App’x 140, 140–41 (4th Cir. 2019); United States v. 

Fleitas, 766 F. App’x 805, 807–08 (11th Cir. 2019); United 

States v. Maitre, 898 F.3d 1151, 1159–61 (11th Cir. 2018); 

United States v. Delima, 886 F.3d 64, 72 (1st Cir. 2018); 

United States v. Garcia, 727 F. App’x 599, 602 (11th Cir. 

2018); United States v. Nelson, 724 F. App’x 814, 818–19 

(11th Cir. 2018); United States v. Popovski, 872 F.3d 552, 

553 (7th Cir. 2017); United States v. Wright, 862 F.3d 1268, 

1274–75 (11th Cir. 2017); United States v. Bendelladj, 

710 F. App’x 384, 386–87 (11th Cir. 2017); United States v. 

Haywood, 681 F. App’x 290, 292 (4th Cir. 2017); United 

States v. Garcia, 634 F. App’x 242, 244–45 (11th Cir. 2015); 

United States v. Balde, 616 F. App’x 578, 583–84 (4th Cir. 

2015); United States v. Cardenas, 598 F. App’x 264, 266–

67 (5th Cir. 2015); United States v. Nelson, 597 F. App’x 17, 

18 (2d Cir. 2015); United States v. Mendez, 589 F. App’x 

642, 645 (4th Cir. 2014); United States v. Torres-Bonilla, 

556 F. App’x 875, 882 (11th Cir. 2014); United States v. 

Bermudez, 536 F. App’x 869, 871 (11th Cir. 2013); United 

States v. Miralles, 521 F. App’x 837, 839–40 (11th Cir. 

2013); United States v. Volynskiy, 431 F. App’x 8, 9–10 (2d 

Cir. 2011); United States v. Heath, 424 F. App’x 730, 735–

37 (10th Cir. 2011); United States v. Harris, 597 F.3d 242, 

249 (5th Cir. 2010); United States v. Warthen, 390 F. App’x 

977, 978 n.1, 981 n.3 (11th Cir. 2010); United States v. 

Dodson, 357 F. App’x 324, 325–26 (2d Cir. 2009); United 

States v. Jones, 332 F. App’x 801, 804 n.1, 807 (3d Cir. 
UNITED STATES V. KIRILYUK 55

2009); United States v. Kowal, 527 F.3d 741, 748 (8th Cir. 

2008); United States v. Lewis, 312 F. App’x 515, 518 (4th 

Cir. 2008); United States v. Carralero, 195 F. App’x 874, 

877–78 (11th Cir. 2006); United States v. Muhammed, 

108 F. App’x 775, 777 (4th Cir. 2004); United States v. 

Scott, 250 F.3d 550, 551–53 (7th Cir. 2001); United States 

v. Sowels, 998 F.2d 249, 252 (5th Cir. 1993).

The only circuit that has taken a different approach is the 

Sixth Circuit in Riccardi. But the majority here cannot 

purport to “align [itself] with the Sixth Circuit,” Maj. 

Op. 19–20, when that court applied Kisor, not Stinson. See 

Riccardi, 989 F.3d at 484–85. And as I flagged above, 

Riccardi involved a critically different set of facts: the 

defendant was charged with stealing 1,505 gift cards from 

the mail. Id. at 479. This included, for example, a $25 

Starbucks gift card, with the gift cards having an average 

face value of $35 each. Id. at 479–80.

Although the Sixth Circuit concluded that the gift cards 

were “access devices” subject to the $500-per-card 

multiplier, id. at 479, 482–83, there is a world of difference 

between gift cards and credit cards. Charges on a gift card 

max out at the value of the card, whereas much more can be 

charged to a credit card than $35. The collateral damage also 

differs substantially. When a gift card is stolen, there may 

be some costs associated with replacing it. But those 

amounts surely pale in comparison to the costs associated 

with credit card fraud, which are borne by cardholders and 

financial institutions alike. See United States v. Pham, 

545 F.3d 712, 721 (9th Cir. 2008) (identifying some of these 

costs). In purporting to associate our court with the Sixth 

Circuit, the majority thus relies on a case that involved 

materially different facts.
56 UNITED STATES V. KIRILYUK

Of course, when the majority says it is aligning with the 

Sixth Circuit, what it means is that it is siding with a separate 

opinion in Riccardi that did not command a majority there. 

See Riccardi, 989 F.3d at 490–93 (Nalbandian, J., 

concurring). Judge Nalbandian believed Stinson still applied 

to Guidelines commentary but would invalidate the per-card 

multiplier under Stinson. Id. at 492. Until today, no court 

had adopted that position. In aligning our circuit with a 

novel separate writing in this area of law, the majority puts 

us at odds with both our own precedent and that of every 

other circuit.

D

Finally, the majority cannot justify its departure from 

settled law by claiming that Kirilyuk’s sentence is an 

“egregious problem” considering that the amounts he 

actually charged to credit cards were much lower than the 

presumptive loss amount under the per-card multiplier. Maj. 

Op. 18. Here too the majority misperceives our role, 

enshrining into law one possible perspective on sentencing 

policy rather than respecting the judgment of the Sentencing 

Commission and the experienced district court judge who 

conducted Kirilyuk’s sentencing.

As the majority itself explains, “Kirilyuk and his 

associates engaged in a massive, international fraud scheme” 

that “involved layers of sophistication.” Maj. Op. 5. 

Working with Russian partners and with Kirilyuk in the lead, 

the co-conspirators created sham merchant accounts and 

linked bank accounts using stolen identities, including those 

of 220 Sacramento high school students through their stolen 

school transcripts. The merchant accounts had names like 

“Best Box,” “Chevran,” and “CVS Store,” designed to look 

close enough to real companies to avoid detection.
UNITED STATES V. KIRILYUK 57

Then, using nearly 120,000 stolen credit card numbers 

obtained by Russian hackers, the co-conspirators made over 

190,000 fraudulent charges to the fake merchant accounts, 

routed the money to the sham bank accounts, and then 

withdrew it from the banks or wired it overseas. They even 

set up phone numbers for the fake businesses, so that when 

an American Express cardholder saw a suspicious charge 

and called the number, the co-conspirators could remove the 

charge and prolong their scheme. It took the combined 

efforts of American Express, Wells Fargo, and the FBI to 

uncover this multi-year criminal operation. Even after his 

arrest, Kirilyuk skipped bail and had to be apprehended in 

Mexico City. At trial, he was convicted on all charges.

The majority finds Kirilyuk’s 22-level loss enhancement 

“egregious” because his fraudulent scheme “involved 

$1.4 million in actual losses or $3.4 million in intended 

losses.” Maj. Op. 18. But the Sentencing Commission and 

district court could recognize that using those lower numbers 

would create an “egregious” problem of its own: those much 

lesser amounts do not nearly reflect the full magnitude of 

Kirilyuk’s criminality. Indeed, this is precisely why Yellowe 

held that the multiplier was appropriate: because other 

metrics “would understate the severity of the offense.” 

24 F.3d at 1113.

It is also important to unpack the majority’s numbers 

here. The $1.4 million figure, which the majority calls 

“actual losses,” is the amount of false merchant account 

charges that American Express had already approved. The 

$3.4 million figure, which the majority calls the “intended 

loss,” includes the additional charges that Kirilyuk submitted

but which American Express declined to process.

The majority reasons that “the conspiracy was designed 

to charge only $15 to $30 per credit card.” Maj. Op. 18. But 
58 UNITED STATES V. KIRILYUK

all we know is that Kirilyuk’s conspiracy was stopped at this 

point, before further fraudulent charges were incurred. See 

Delima, 886 F.3d at 75 (“Actual losses were lower than 

intended losses because federal agents seized the 

conspirators’ equipment and inventory, preventing the 

conspirators from profiting from the remaining numbers.”). 

The Sentencing Commission and the district court were not 

required to accept Kirilyuk’s self-serving attempt to put a 

ceiling on the ambitions of his massive international fraud 

operation. Nor were they required to blind themselves to the 

many other costs that this kind of scheme necessarily 

imposes beyond the bare amounts charged to the stolen card 

numbers.

Of course, if the district court judge who conducted 

Kirilyuk’s trial and sentencing thought that a 22-level loss 

enhancement was too high, the judge had the discretion to 

grant a downward departure. See U.S.S.G. § 2B1.1, cmt. 

n.21(C). Kirilyuk in fact asked the district court for such a 

downward departure, but the court declined. The Guidelines 

themselves are also advisory in nature only. But rather than 

allowing district courts the option of a downward departure 

or a lower sentence, the majority is now effectively forcing 

this upon them. In my respectful view, that choice is not the 

majority’s to make.

III

The full implications of the majority’s opinion will likely 

be far-reaching and destabilizing. The per-card multiplier 

has been applied in our circuit, and in district courts across 

our circuit, for decades. Now it can no longer be applied to 

any defendant. In its place, district courts are left with 

uncertainty as to the proper measure of loss for unauthorized 

access device crimes. And it remains unclear whether other 

measures of Guidelines “loss” may also now be invalid as 
UNITED STATES V. KIRILYUK 59

well. Indeed, many aspects of the Guidelines commentary 

may be open to challenge under the majority’s Kisorcharged approach to Stinson—even commentary provisions 

backed by thirty years of circuit precedent. On these and 

many other questions, we should likely expect a wave of 

post-conviction motions and requests for re-sentencing.

We should not have gone down this road. Yellowe 

foreclosed it. Stinson foreclosed it. The law of nearly every 

other circuit counseled against it. I respectfully dissent from 

this unprecedented departure from governing law.