2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-3-2009

USA v. Ryan Craig

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4750

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Recommended Citation

"USA v. Ryan Craig" (2009). 2009 Decisions. Paper 713.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/713
 Honorable Louis H. Pollak, Senior Judge of the United States District Court for *

the Eastern District of Pennsylvania, sitting by designation.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-4750

UNITED STATES OF AMERICA

v.

RYAN J. CRAIG, 

Appellant.

On Appeal of a Decision of the United States District Court 

for the Middle District of Pennsylvania (Crim. No. 06-0219)

District Judge: Christopher C. Conner

Submitted under Third Circuit L.A.R. 34.1(a)

January 13, 2009

Before: SLOVITER and BARRY, Circuit Judges,

and POLLAK, District Judge.

*

(Filed: September 3, 2009)

OPINION

________________
 “E-bay is a global online marketplace, essentially a newspaper classified ad that brings 1

buyers and sellers together allowing basically anyone on earth to buy and sell basically almost

everything.” (App. 131.)

2

POLLAK, District Judge

I.

Ryan J. Craig (“Craig”) has filed a pro se brief in this appeal from his conviction

of two counts of wire fraud in violation of 18 U.S.C. § 1341 and one count of failure to

appear at trial in violation of 18 U.S.C. § 3146. His current counsel has moved for

permission to withdraw from representation pursuant to Anders v. California, 386 U.S.

738 (1967). We conclude that counsel has fulfilled the requirements of Third Circuit

Local Appellate Rule 109.2(a) and that an independent review of Craig’s pro se brief as

well as the record has failed to reveal any additional non-frivolous issues. We accordingly

will grant defense counsel’s motion to withdraw and will affirm the District Court's

judgment.

II.

We write primarily for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

The government presented evidence showing that Craig sold non-existent

merchandise through e-Bay, an internet auction website that serves as a clearinghouse for

individual sellers to list items for sale. Craig used his grandmother’s personal 1
 The PSR used, and the District Court applied, the 2002 edition of the Federal

2

Sentencing Guidelines Manual.

3

identification information to establish a seller’s account on e-Bay. Craig, with the help of

accomplices, then sold items using this account, keeping the proceeds from the completed

sales – which were paid to him by way of Western Union money orders – without

delivering the goods promised to their respective buyers. 

David Carlson, a fraud investigation supervisor employed by e-Bay, testified for

the government that in order to set up an account on the e-Bay website, a user must

provide a street address, a phone number, and an e-mail address. (App. 132-33.) Carlson

also testified that Craig supplied e-Bay with two credit card numbers, registered to his

grandmother, which could be used to bill the user account for service charges associated

with using e-Bay. (App. 139-140.) At the time of Craig’s arrest, police recovered from

Craig a blank Western Union form and a piece of paper containing his grandmother’s

name, date of birth, social security number, credit card numbers, and bank account

information. 

Following the jury’s verdict, the Probation Office prepared a Pre-Sentence

Investigation Report (“PSR”) proposing a recommended Sentencing Guidelines range of

100-125 months of incarceration, reflecting a total offense level of 24 and a criminal

history category of VI. To arrive at that total offense level, the PSR applied the 2

following guidelines adjustments: an eight-level enhancement for a loss amount

exceeding $70,000 but not more than $120,000, pursuant to U.S.S.G. § 2B1.1(b)(1)(E); a
 Counsel for appellant does note, however, that he is conflicted as to whether there is 3

arguable merit with respect to two issues: whether the jury had sufficient evidence to support its

wire fraud verdict, and whether the court properly applied the sentencing enhancement for

“means of identification.” See Appellant’s Br. at nn.24 & 35. 

4

four-level enhancement for 50 or more victims, pursuant to § 2B1.1(b)(2)(B); a two-level

enhancement for unauthorized use of any means of identification to produce another

means of identification, pursuant to § 2B1.1(b)(9)(C)(I); and a two-level enhancement for

role as leader, pursuant to § 3B1.1. 

Craig objected to the sentencing enhancements. The District Court sustained

Craig’s objections in part, determining that the number of victims should be reduced to 14

(reducing the applicable sentencing enhancement from four points to two points) and that

the loss amount should be reduced to more than $10,000 but less than $30,000 (reducing

the applicable sentencing enhancement from eight points to four points). The District

Court overruled Craig’s other objections and thus found a total offense level of 18 with a

criminal history category of VI, resulting in a guidelines range of 57-71 months of

incarceration. The District Court sentenced Craig to 71 months: fifty-nine months for

each wire fraud conviction, to be served concurrently, and 12 months for the failure to

appear conviction, to be served consecutively to the wire fraud sentences. 

III.

Appellant’s counsel has moved this Court for leave to withdraw because, in

counsel’s view, appellant appears to lack any issue of arguable merit. See Local

Appellate Rule 109.2; Anders. Appellant, meanwhile, has filed a separate brief pro se in 3
5

support of his appeal. We exercise jurisdiction over this appeal pursuant to 28 U.S.C. §

1291 and 18 U.S.C. § 3742(a). 

If a criminal defendant wishes to appeal but counsel, after thorough review of the

record, cannot find any appealable issue, counsel may file what is known as an Anders

brief. Local Appellate Rule 109.2(a) reflects the Third Circuit's implementation of

Anders:

Where, upon review of the district court record, trial counsel is persuaded

that the appeal presents no issue of even arguable merit, trial counsel may

file a motion to withdraw and supporting brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396 (1967), which shall be served upon

the appellant and the United States. The United States shall file a brief in

response. Appellant may also file a brief in response pro se. After all briefs

have been filed, the clerk will refer the case to a merits panel. If the panel

agrees that the appeal is without merit, it will grant trial counsel's Anders

motion, and dispose of the appeal without appointing new counsel. If the

panel finds arguable merit to the appeal, it will discharge current counsel,

appoint substitute counsel, restore the case to the calendar, and order

supplemental briefing.

In assessing an Anders brief, we must determine: “(1) whether counsel adequately

fulfilled the rule's requirements; and (2) whether an independent review of the record

presents any non-frivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.

2001) (explaining L.A.R. 109.2(a)) (citations omitted). 

We first examine whether counsel fulfilled the requirements of Rule 109.2(a) and

then turn to the issue of our independent review. As Rule 109.2(a) reflects, “[t]he duties

of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has

thoroughly examined the record in search of appealable issues, and (2) to explain why the
That counsel notes two claims with respect to which he is somewhat conflicted 4

about his own conclusion of frivolity serves to confirm the care he has taken in briefing

this appeal. See note 3, supra.

6

issues are frivolous.” Youla, 241 F.3d at 300. Counsel’s Anders brief satisfies both of

these requirements. “Counsel need not raise and reject every possible claim” but need

only satisfy the “conscientious examination” standard set forth in Anders. Id. We are

satisfied that counsel has met this standard. Counsel diligently searched the record for

any potentially appealable issues and, in fourteen pages of careful analysis, supported his

claims of frivolousness with citations to relevant case law. Cf. id. (holding that counsel

did not adequately explain the frivolity of appealable claims where “counsel's analysis of

the merits of the potential appealable issues constituted two pages” and cited “no case

law”).4

Thus, the Anders inquiry proceeds to our independent review of the record. When

an Anders brief appears adequate on its face, our own examination is to be guided by the

Anders brief itself. Id. at 301. Counsel raises four possible issues for review in his

Anders brief: (1) the sufficiency of the evidence relied upon by the jury; (2) the District

Court’s handling of the jury, who were deadlocked before reaching a verdict; (3) the

District Court’s articulation of its consideration of the relevant sentencing factors outlined

at 18 U.S.C. § 3553(a); and (4) the District Court’s calculation of the proper guidelines

sentence, specifically the District Court’s application of the role-as-leader and

unauthorized-use-of-means-of-identification enhancements. On the basis of our review,
7

we agree that all of these issues are without merit. 

Counsel invites us to consider whether his “criteria for frivolousness [are] too

strict” as to two issues: (1) whether the jury had sufficient evidence to support the wire

fraud conviction, and (2) whether the court properly applied the sentencing enhancement

for means of identification. See Appellant’s Br. at n.24; note 3, supra. We will briefly

address each of these issues.

First, Counsel suggests that a sufficiency of the evidence claim might ground a

non-frivolous appeal because a jury convicted Craig of wire fraud despite the fact that it

deadlocked on the charge of mail fraud. Because mail fraud and wire fraud are crimes

with different elements, however, deadlock as to one has no bearing on the sufficiency of

the evidence for the other. An appellate court’s determination of whether a jury’s verdict

was supported by sufficient evidence “should be independent of the jury's determination

that evidence on another count was insufficient.” United States v. Powell, 469 U.S. 57,

67 (1984). The District Court explained to Craig’s jury that an element of mail fraud is

that the defendant “used the mails or caused the mails to be used.” (App. 774.) Because

the jury had a sufficient amount of evidence to convict on the wire fraud charges – which

have nothing to do with mail usage – the jury’s deadlock on the mail fraud counts cannot

transform an otherwise frivolous sufficiency of the evidence argument into a nonfrivolous one. This is especially true where, as here, the appellate court’s review is for

plain error because the defendant did not challenge the sufficiency of the evidence by
Hawes, like the instant matter, involved the 2002 edition of the guidelines manual. The 5

means-of-identification enhancement is now at § 2B1.1(b)(10)(C)(I).

8

moving for a motion of acquittal during or after trial.

Counsel also expresses “disquiet” as to whether our decision in United States v.

Hawes, 523 F.3d 245 (3d Cir. 2008), calls into question the District Court’s application of

the means-of-identification enhancement, U.S.S.G. § 2B1.1(b)(9)(C)(I). Hawes held that

a financial adviser who defrauded his clients by changing their addresses (so that he, and

not they, could obtain mailings of their financial statements and then mail the clients

fabricated financial statements instead) did not qualify for the enhancement because a

mailing address, standing alone, is not a “means of identification” as defined by the

Guidelines. See Hawes, 523 F.3d at 252.

Section 2B1.1(b)(9)(C)(I) applies whenever the defendant has committed “the 5

unauthorized transfer or use of any means of identification unlawfully to produce or

obtain any other means of identification.” The application note to § 2B1.1(b)(9)(C)(I)

instructs that “‘[m]eans of identification’ has the meaning given that term in 18 U.S.C. §

1028(d)(4).” That section (now codified at 18 U.S.C. § 1028(d)(7)) provides:

[T]he term “means of identification” means any name or number that may

be used, alone or in conjunction with any other information, to identify a

specific individual, including any--

(A) name, social security number, date of birth, official State or government

issued driver's license or identification number, alien registration number,

government passport number, employer or taxpayer identification number;

(B) unique biometric data, such as fingerprint, voice print, retina or iris
9

image, or other unique physical representation;

© unique electronic identification number, address, or routing code; or

(D) telecommunication identifying information or access device (as defined

in section 1029(e)); 

As we noted in Hawes, this statutory definition of “means of identification” contains both

general terms (“any name or number that may be used . . . to identify a specific

individual”) and specific terms (a list of examples of means of identification, which does

not include a mailing address). 523 F.3d at 250. Hawes concluded that §

2B1.1(b)(9)(C)(I) targets “breeding a new means of identification” that involves “unique

means of identification, primarily numbers” rather than “merely an attribute of one's

identity.” Id. at 251-52. Thus, it held, mailing addresses – which are not specifically

listed or referred to by § 1028(d)(4) – do not fall under the meaning of the guideline.

Both credit card numbers and e-Bay accounts, in contrast, are means of

identification specifically identified by § 1028(d)(4), as both constitute “access devices”

within the meaning of § 1028(d)(4)(D). Pursuant to § 1028(d)(4)(D), an access device is

defined by reference to 18 U.S.C. § 1029(e). That definition of “access device” provides:

the term “access device” means any card, plate, code, account number,

electronic serial number, mobile identification number, personal identification

number, or other telecommunications service, equipment, or instrument

identifier, or other means of account access that can be used, alone or in

conjunction with another access device, to obtain money, goods, services, or

any other thing of value, or that can be used to initiate a transfer of funds

(other than a transfer originated solely by paper instrument)[.]

18 U.S.C. § 1029(e)(1) (emphasis added). A credit card falls under the definition of
10

“access device” because it is a “card . . . that can be used . . . to obtain money, goods,

services, or any other thing of value.” An e-Bay account, meanwhile, is a “means of

account access that can be used . . . in conjunction with another access device” – namely a

credit card – “to obtain money, goods, services, or any other thing of value.” Credit cards

and e-Bay accounts are therefore means of identification for the purposes of applying the

sentencing enhancement from § 2B1.1(b)(9)(C)(I). Accordingly, Craig’s conduct is

“easily categorized as the breeding of means of identification,” Hawes, 523 F.3d at 250,

because Craig used one means of identification (his grandmother’s credit card) to spawn

another (a newly created e-Bay account in her name). 

IV.

For the foregoing reasons, we will grant counsel's motion to withdraw and affirm

the judgment of the District Court.