United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-1249

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Faris Nayel Salem, *

* [PUBLISHED]

Appellant. *

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Submitted: November 16, 2009

Filed: December 1, 2009

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Before WOLLMAN, RILEY, and SHEPHERD, Circuit Judges.

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PER CURIAM.

In 2008, Faris Salem pled guilty to one count of knowingly using unauthorized

access devices in violation of 18 U.S.C. § 1029(a)(2). As relevant to this appeal, the

district court increased Salem’s base offense level by two levels, finding that his

offense involved the production of an unauthorized access device. Salem appeals his

sentence. We vacate and remand for resentencing.
1

For example, Salem placed a fraudulent bar code label on expensive men’s

razors, causing them to scan as lower-priced men’s razors.

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I.

On August 16, 2004, Salem visited two Wal-Mart stores in Belton and

Harrisonville, Missouri, and purchased items using fraudulent bar code labels.

Salem’s scheme worked as follows. Salem would take a large quantity of one item

from the shelf. He would then place a fraudulent bar code label on one of those items.

When scanned by a cashier at checkout, the item would reflect a much lower price

than originally marked.1

 After scanning the fraudulent label, the cashier would then

apply that price to the entire quantity of items Salem presented, charging Salem the

same fraudulent price for all the items. Thus, Salem was able to defraud Wal-Mart

and obtain large quantities of merchandise at greatly reduced prices. 

 On August 21, 2008, Salem pled guilty pursuant to a plea agreement to one

count of using unauthorized access devices in violation of 18 U.S.C. § 1029(a)(2).

The parties did not reach an agreement as to a recommended sentence. Salem’s

Presentence Investigation Report (PSR) recommended a two-level increase in Salem’s

offense level because the offense involved the production of an unauthorized access

device. See United States Sentencing Commission, Guidelines Manual,

§2B1.1(b)(10)(B)(i) (Nov. 2008). At Salem’s sentencing hearing, after hearing

testimony from the FBI investigating special agent that it was unclear who

manufactured the fraudulent bar code labels used by Salem, the district court upheld

the two-level enhancement, explaining: 

I’m going to find the two points should remain assessed for the using of

these fraudulently manufactured [devices] without finding who

manufactured them, because nobody knows who manufactured them, but

I’m going to find that [the] two points should stand, because -- well, I’m

going to attribute it. The defendant obviously was using these devices
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to perpetuate this scheme that he’s admitted, so I’m going to let that two

points stand.

(Sentencing Hr’g Tr. 75, Jan. 22, 2009.) 

The court determined Salem’s total offense level to be 18. After the court

reduced Salem’s offense level by three levels for acceptance of responsibility, see

USSG §3E1.1, Salem was left with a total offense level of 15, and a criminal history

of Category I. This resulted in an advisory Guidelines range of 18 to 24 months. The

court sentenced Salem to 21 months imprisonment.

II.

Salem appeals his sentence, arguing that the district court erred in increasing

his offense level for production of an unauthorized access device under

§2B1.1(b)(10)(B)(i) because no evidence was presented that he produced the

fraudulent bar code labels used in his scheme. The government disagrees, arguing that

the only reasonable inferences to be drawn from the nature of Salem’s scheme are

either that Salem produced the bar code labels himself, or that someone acting at his

direction produced them. “We review the district court’s factual findings for clear

error, and its application of the guidelines de novo.” United States v. BonillaFilomeno, 579 F.3d 852, 857 (8th Cir. 2009) (quotation omitted). We begin our

review by examining the plain language of the Guidelines, “and where that is

unambiguous we need look no further.” United States v. Abumayyaleh, 530 F.3d 641,

650 (8th Cir. 2008) (quotation omitted).

Based on the plain language of the guideline, we must vacate the sentence

imposed by the district court. The guideline instructs sentencing courts to increase a

defendant’s offense level by two levels if the offense involves “the production . . . of

any . . . unauthorized access device.” USSG §2B1.1(b)(10)(B)(i). The commentary
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to §2B1.1 defines production as including “manufacture, design, alteration,

authentication, duplication, or assembly.” Id. §2B1.1, comment. (n.9(A)). Thus,

where a defendant did not manufacture, alter, or otherwise produce an access device,

the enhancement is inappropriate.

As the district court noted, there was no evidence presented at sentencing about

how Salem procured the fraudulent bar code labels used in his scheme, or who

produced or manufactured them. Nevertheless, the court applied the enhancement

because Salem “obviously was using these devices to perpetuate this scheme that he’s

admitted.” (Sentencing Hr’g Tr. 75.) While Salem was clearly using the fraudulent

bar code labels to perpetuate his scheme—indeed, without such use, a charge under

18 U.S.C. § 1029(a)(2) would not lie—there was simply no evidence presented at

sentencing that Salem manufactured or produced them. A sentencing enhancement

for production of unauthorized access devices requires both (1) evidence that Salem

was making these bar code labels or altering existing labels for use in his scheme, and

(2) a finding by the court that Salem “produced” the labels within the meaning of

§2B1.1(b)(10)(B)(i). Absent such requirements, the district court improperly

calculated Salem’s advisory Guidelines sentencing range and committed significant

procedural error. See Gall v. United States, 552 U.S. 38, 51 (2007). Because “it is not

clear to us that the same sentence would have been imposed had the correct guidelines

range been applied,” United States v. Onwumere, 530 F.3d 651, 655 (8th Cir. 2008),

we must vacate Salem’s sentence. 

Although our holding is based on the plain language of the guideline, we note

that the cases discussing §2B1.1(b)(10)(B)(i) similarly limit its application to

instances where a defendant made or altered an access device. See, e.g., United States

v. Jenkins-Watts, 574 F.3d 950, 962 (8th Cir. 2009) (holding that the defendant

“qualifies for the § 2B1.1(b)(10) enhancement because he produced counterfeit

Kansas driver’s licenses with realistic authentication features”); United States v.

Jones, 551 F.3d 19, 26 (1st Cir. 2008) (holding that defendant’s act of popping air
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bubbles on the laminate surfaces of fraudulent driver’s licenses qualified her for a

§2B1.1(b)(10)(B) enhancement). Simple use of an unauthorized access device, while

enough to subject a defendant to substantive liability under 18 U.S.C. § 1029(a)(2),

is insufficient to qualify for the enhancement. See United States v. Morris, 307 F.

App’x 872, 875 (5th Cir. 2009) (unpublished per curiam) (vacating sentence where

defendant simply supplied counterfeit checks because “[s]upplying counterfeit checks

is not the same as ‘producing’ or ‘trafficking’ an unauthorized ‘access device’ or

‘authentication feature’”).

III.

For the foregoing reasons, we vacate Salem’s sentence and remand to the

district court for resentencing on the existing record. The mandate shall issue

forthwith. 

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