NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0102n.06 No. 10-6502 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES, Plaintiff-Appellee , v. DERWI N GERAL D ARD, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN NESSEE

Be fore : BOG GS, COL E, and SUTTON , Circuit J udg es. SUTTON, Circuit J udg e. Der win Ard appea ls his 24-month sentenc e on two g rounds: the district court incorre ctly calcu l at ed his g uidelines rang e, and it relied on irrele vant fac tors in sentenc ing him. We af

firm.
I
. On Marc h 1, 2010, Ard went to Flee t Safety Equipment, located in Memphis, wher e he told staff members he worke d for the Un i ted States Depa rtment of J ustice and he neede d a law enfor ceme nt lighting packa g e installed on his vehicle. Unable to help him that day , Flee t Safety told him to come back later. Two day s later, Ard returne d and ag ain told company employ ees he worke d for the D epar

tment of J ustice and ag ain asked f or a lig hting installation. Fle et Safe ty installed the lighting packa g e the ne x t day
.No. 10-6502

United States v. Ard When it came time to p a

y f o r the installation (ar ound $2,500), Ard’s cre dit car d was declined. A Flee t Safety employ ee permitted him to pay with a chec k on the ass u m p t i o n that, as a law enfor ceme nt office r, he could be tru s t ed
. T h e chec k turned out to be worthless. Flee t Safety contac ted the police, who arr ested Ard in L ittle Rock, Arka nsas a few day s later. As it turns out, Ard
was not an employ ee of the Depa rtment o f J u stice, he was driving a stolen vehicle and he had a leng thy criminal history , including c onvictions for impersonation-relate d offe nses in four States.
A g rand jury indicted Ard for impersonating a fede ral office r. See 18 U.S.C. § 912. He pled g uilty and rec eived a 24-month sentenc e, nine months above the g uidelines rang e of nine to fiftee n months.
I I
. Ard challeng es the proce dural rea sonablene ss of his sentenc e, claiming th e d i strict court improperly calc ulated his g uidelines rang e. I n calc ulating Ard’s guidelines rang e, the district court started with the impersonation g uideline, U.S.S.G. § 2J 1.4, which initially calls for an offe nse level of six
. The g uideline adds the following adjustment: “I f the impersonation was to fac ilitate another offe nse, apply the guideline for an a t t em p t to commit that offe nse, i f t he resulting offense level is g reater than the offe nse level deter mined [by this g uideline].” U.S.S.G. § 2J 1.4(c) (1). Be cause the impersonation fac ilitated a fra ud valued at more than $5,000 (as no one disputes), the district court applied the § 2J 1.4 (c) (1) cross-re fer ence and sentenced Ard under the hi g her offense level (eig ht) require d for f

rauds of this value. See U.S.S.G. § 2B1.1.
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United States v. Ard Ard protests that the district court should not have stopped there
. I t should have applied the
cross- re ference in the g ener al fra ud g uideline, which ref

ers back to the impersonation g uideline. U.S.S.G. § 2B1.1( c)( 3). That cross-r efe renc e applies wher e “the de fenda nt w as convicted under a statute proscr ibing false, fictitious, or fra udulent statements or repr esentations g ener ally (e. g ., 18 U.S .C. § 1001, § 1341, § 1342, or § 1343)” and wher e the conduct set forth in the offe nse i s “spec ifically cover ed by another g uideline.” U.S.S.G. § 2B1.1( c)( 3). As Ard sees i t , this interpre tation cre ates an “infinite loop” in the sentenc ing g uidelines, as § 2J 1.4 ref ers to § 2B1.1, which ref ers back to § 2J 1.4 and so on—beg g ing the question whether the orig inal offe nse level (six )
or the cross-r efe renc ed offe nse level (eight) applies. Any doubt about which offe nse level is the rig ht one, Ar d adds, implicates the r ule of lenity

and entitles him to the more lenient inter pretation.
Not quite. Even i f t h es e g uidelines do cre ate a loop, it is not infinite. The impersonation g uideline say s to apply the “g reater
. . . offe nse level”—which is to s ay eight, not six —when a defe ndant’s impersonation fac ilitates a nother offe nse. U.S.S.G. § 2J 1.4(c) (1). Whether one starts with the fra

ud g uideline or the impersonation g uideline or ends wi t h ei t h er g uideline, all of these possibili ties lead to an offe nse level of eig ht for a fr au d ca u sed by impersonation valued at over $5,000. Any

loop ends up in the same plac e: an of fense level of e ight.
The cross-r efe renc e found in the g ener al fra ud g uideline (§ 2B1.1( c)( 3)), at any rate , does not apply to him. I t applies to defe ndants convicted under statutes prohibiting “fa lse, fictitious, or fra udulent statements or repr esentations g ener ally .” U.S.S.G. § 2B1.1( c)( 3). Yet Ard was convicted under a specific statute prohibiting the impersonation of a fede ral employ ee. 18 U.S.C. § 912. The - 3 -No. 10-6502

United States v. Ard statutes listed as examples in § 2 B1
. 1 (c )(3) confirm the distinction. They g ener ally prohibit fra udulent statements to g overnme nt officia ls, 18 U.S.C. § 1001, g ener al mail fra ud, id. § 1341, mail fra ud throug h the use of fictitious names or addre sses, id. § 1342, and g ener al wire fra ud, id. § 1343. None of these statutes c overs this offe nse.
Ard also challeng es the substantiv e r e a s o nablene ss of his sentenc e, claiming the district court relied too heavily on the fac t that Ard rec eived a milit ary discharg e under “other than h o n o rable ” conditions. Early in the sentenc ing hear ing, the court asked Ard about his milit ary rec ord and spent
some time sorting throug h it beca use Ard’s acc ount and the officia l r ecor ds did not line up. When it came time to explain its upwar d varia nce, howev er , t h e co urt did not mention the milit ary discharg e in discussing the § 3553(a) fac tors. Rather, it focuse d on the n ee d t o p rotec t the publ ic from Ard’s crimes and to deter Ard from committing future crim es gi v en his history of serial impersonations. 18 U.S.C. § 3553(a) (2); see United States v. Tate , 51 6 F. 3 d 4 5 9 , 4 7 1 (6th Cir. 2008). Ard’s recor d of m ilitary service simply did not come up during th i s p h as e o f the hearing
. Given the need to protec t the public from a repe at impersonator, the court’s 24-month sentenc e was
a re asonable one.
I I I
. For these re asons, we a ffirm.

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