[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10192

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

CENTRY CORKER, JR., 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 4:20-cr-00031-AW-MAF-1

____________________

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2 Opinion of the Court 22-10192

Before NEWSOM, TJOFLAT, and ANDERSON, Circuit Judges.

PER CURIAM:

Centry Corker, Jr. appeals his sentence of 45 months’ imprisonment for aiding and abetting bank fraud, possession of 15 or 

more unauthorized access devices with intent to defraud, and aiding and abetting aggravated identity theft. Corker argues that the 

District Court plainly erred at sentencing in calculating the loss attributable to him pursuant to the $500-per-access-device rule in Application Note 3(F)(i) to U.S.S.G. § 2B1.1, and by applying Application Note 3(A), which requires the district court to calculate loss as 

the greater of actual or intended loss. He asserts that these provisions are inconsistent with the plain meaning of the word “loss” in 

the Guidelines’ text and invalid pursuant to the Supreme Court’s 

decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019). We affirm the 

District Court’s decision.

I. 

In December 2015, Corker obtained a $2,500 personal loan 

check from the United States Automobile Association Federal Savings Bank (the “USAA FSB”) by calling the bank from a Maryland 

phone number and posing as an individual named W.C. Corker 

also called the United States Automobile Association Savings Bank 

(the “USAA SB”) posing as W.C. and obtained a credit card with a 

$20,000 limit in W.C.’s name using his name, date of birth, and Social Security number. The loan check was sent to Corker’s 

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residence via Federal Express on December 3, 2015, and the credit 

card was sent to Corker’s residence via Federal Express on December 5, 2015. The loan was stopped before Corker could cash the 

check, but Corker used the credit card to make purchases totaling 

$2,778.01 at Walmart stores in Tallahassee and Pembroke Pines, 

Florida.

Between September 30, 2015, and January 30, 2016, Corker 

had engaged in a separate credit card fraud scheme. During this 

time, Corker had obtained multiple blank credit cards. Using The 

Onion Router software,1 Corker went to dark web marketplaces 

such as AlphaBay and BriansClub to purchase credit card information stolen from other individuals. Through his purchases, he 

obtained 78 individuals’ credit card numbers, expiration dates, card 

verification values, and personally identifiable information, and 

Corker stored this information on his personal laptop. He then 

used a magnetic stripe card reader and writer to encode the card 

numbers he received and copy the individuals’ card information 

onto the blank credit cards. He intended to use the credit cards to 

make purchases not authorized by the original card owners, but he 

did not get to use the credit cards. 

1 The Onion Router (“TOR”) software allows users to access the dark web, 

and it protects users’ privacy by encrypting users’ web traffic and clearing their 

browser history automatically after each browsing session. See Theodor 

Porutiu, What Is the TOR Browser? A Guide to the Dark Web Browser, VPN 

Overview (June 27, 2022), https://vpnoverview.com/privacy/anonymousbrowsing/tor/.

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Corker was indicted by the United States District Court for 

the Northern District of Florida on July 7, 2020. For Counts 1 

through 6, Corker was charged with attempting to defraud USAA2

by using a false name to get a loan from USAA FSB and a credit 

card from USAA SB, and by making purchases using the fraudulently obtained credit card, in violation of 18 U.S.C. §§ 2 and 

1344(2). Count 7 charged Corker with possession of 15 or more 

unauthorized access devices, in violation of 18 U.S.C. §§ 1029(a)(3)

and (c)(1)(A)(i). The term “access devices” here refers to the 78 

victims’ names, credit card numbers, card verification values, and 

card expiration dates that were stored on Corker’s personal laptop. 

Finally, for Counts 8 and 9, Corker was charged with unlawfully 

using the identity of another person to commit bank fraud as set 

out in Counts 1 and 2, in violation of 18 U.S.C. §§ 2 and 1028A(a)(1). 

Pursuant to a plea agreement, Corker pled guilty to Counts 2, 7, 

and 9 on October 12, 2021. The Government agreed to drop the 

remaining charges against Corker as part of the plea agreement. 

A probation officer prepared Corker’s presentencing report 

(“PSR”) on December 1, 2021, and revised it on December 17, 2021. 

The probation officer calculated USAA’s actual loss to be $5,278.01, 

and the officer calculated a total intended loss value of $61,000—

$38,500 for the 78 victims (including W.C.) whose private credit 

card information was on Corker’s computer and $22,500 for USAA.

2 Throughout the record, the Government and the District Court collectively 

refer to USAA FSB and USAA SB as “USAA.” 

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For the 78 individuals who had their credit card information stolen, 

the probation officer calculated an intended loss amount of $500 

per card, but the officer subtracted the $500 intended loss for 

W.C.’s card because W.C. suffered an actual loss when Corker obtained the credit card in W.C.’s name and made purchases totaling 

$2,778.01. The loss value of $500 per card was calculated pursuant 

to Application Note 3(F)(i) to U.S.S.G. § 2B1.1, which states that, in 

a case involving unauthorized access devices, “loss includes any unauthorized charges made with the . . . unauthorized access device 

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

Sentencing Commission, Guidelines Manual, § 2B1.1, comment.

(n.3(F)(i)) (Nov. 1, 1989). USAA’s intended loss value came from 

the loan and credit card that Corker obtained fraudulently—$2,500 

for the USAA FSB loan and $20,000 for the USAA SB credit card

obtained in W.C.’s name. 

The probation officer calculated a base offense level of seven 

pursuant to U.S.S.G. § 2B1.1(a)(1). The probation officer applied 

the following adjustments for specific offense characteristics: (1) a 

6-level increase pursuant to U.S.S.G. § 2B1.1(b)(1)(D) because the 

amount of loss was more than $40,000 but less than $95,000; (2) a 

2-level increase pursuant to U.S.S.G. § 2B1.1(b)(2)(A) because the 

offense involved 10 or more victims; and (3) a 2-level increase pursuant to U.S.S.G. § 2B1.1(b)(11)(A)(i) because the offense involved

the possession or use of device-making equipment. The officer also 

applied a 3-level reduction for acceptance of responsibility and 

timely assistance to authorities pursuant to U.S.S.G. § 3E1.1(a) and 

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(b), yielding a total offense level of 14. Based on Corker’s four criminal history points, he had a criminal history category of III, resulting in a Guidelines sentencing range of 21 to 27 months’ imprisonment for Counts 2 and 7, to be followed by a mandatory consecutive two-year prison sentence for Count 9.3

Corker’s sentencing hearing took place before the District 

Court on January 3, 2022. The Court reviewed the guidelines sentence range and asked Corker if he objected to the guidelines range 

or anything else in the PSR. Corker replied that he did not object 

to the guidelines sentence range or the PSR. After hearing from 

the parties regarding the conditions of Corker’s supervised release 

and the 18 U.S.C. § 3553(a) sentencing factors, the Court sentenced 

Corker to 45 months’ imprisonment, $5,278.01 in restitution, and 

five years of supervised release. Immediately after imposing the 

sentence, the Court asked Corker if he had any objections to the 

sentence or the manner in which it was to be imposed, and Corker 

again replied that he did not have any objections. 

3 18 U.S.C. § 1028A(a)(1) provides that anyone who, during the commission 

of a felony violation contained in Chapter 47 of Title 18 of the U.S. Code, 

“knowingly transfers, possesses, or uses, without lawful authority, a means of 

identification of another person shall, in addition to the punishment provided 

for such felony, be sentenced to a term of imprisonment of 2 years.” Corker 

committed a felony violation contained in Chapter 47 of Title 18 of the U.S. 

Code by possessing 78 unauthorized access devices. See 18 U.S.C. 

§§ 1029(a)(3), 1029(c)(1)(A)(i).

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II. 

Corker now appeals his sentence before this Court. He argues that the District Court erred in calculating the loss amount 

attributable to him pursuant to Application Note 3(F)(i) to U.S.S.G. 

§ 2B1.1. According to Corker, Application Note 3(F)(i)’s requirement that courts assess a minimum loss of $500 per access device 

is invalid because it conflicts with the plain meaning of the word 

“loss” in the Guidelines’ text. U.S.S.G. § 2B1.1 states that for fraud 

offenses, the offense level should be increased according to the provided table “if the loss exceeded $6,500.” Corker argues that the 

commonly understood meaning of “loss” is “the amount of something lost,” so “loss” as used in the Sentencing Guidelines refers to 

the dollar amount that the victim actually lost as a result of the offense. Corker concedes that he is liable for the $5,278.01 that USAA 

actually lost, but he contends that he cannot be liable for the 

$61,000 in intended losses because the Sentencing Guidelines only 

call for sentences to be enhanced based on actual loss. 

Corker also asserts that Application Note 3(F)(i) is invalid 

under Kisor v. Wilkie. The Supreme Court held in Kisor that a 

court should only defer to an agency’s own interpretation of a regulation if “a regulation is genuinely ambiguous . . . even after a 

court has resorted to all the standard tools of interpretation.” 139 

S. Ct. at 2414. Corker argues that Kisor abrogates the rule that the 

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Guidelines’ commentary4 should be afforded significant deference—a rule that this Court has followed in the past. See United 

States v. Lange, 862 F.3d 1290, 1294 (11th Cir. 2017). Application 

Note 3(F)(i), Corker argues, is not a reasonable interpretation of a 

“genuinely ambiguous” Guideline, as the $500-per-device assessment is “wholly unrelated” to the victim’s actual loss and “is inconsistent with the unambiguous text of the [G]uideline.” 

We review a sentencing challenge raised for the first time on 

appeal for plain error. United States v. Clark, 274 F.3d 1325, 1326 

(11th Cir. 2001). Plain error lies only where “(1) there is an error in 

the district court’s determination; (2) the error is plain or obvious; 

(3) the error affects the defendant’s substantial rights in that it was 

prejudicial and not harmless; and (4) the error seriously affects the 

fairness, integrity, or public reputation of judicial proceedings.” Id. 

If an issue is not resolved directly by the language of a statute or 

rule, Eleventh Circuit precedent, or Supreme Court precedent,

there can be no plain error. United States v. Lejarde-Rada, 319 F.3d 

1288, 1291 (11th Cir. 2003). “Such error must be so clearly established and obvious that it should not have been permitted by the 

trial court even absent the defendant’s timely assistance in 

4 Although Kisor does not explicitly extend its holding to the U.S. Sentencing 

Guidelines, the Supreme Court has stated that “the guidelines are the equivalent of legislative rules adopted by federal agencies.” Stinson v. United States, 

508 U.S. 36, 45, 113 S. Ct. 1913, 1919 (1993). 

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detecting it.” United States v. Hesser, 800 F.3d 1310, 1325 (11th 

Cir. 2015) (quotations omitted).

Section 2B1.1 of the U.S. Sentencing Guidelines contains the 

offense level calculation for theft and fraud offenses. U.S.S.G. 

§ 2B1.1. Section 2B1.1(b)(1)(D) provides for an offense level increase of 6 levels if the loss caused by the relevant offense exceeds 

$40,000 but is less than $95,000. Id. § 2B1.1(b)(1)(D). This section 

itself does not provide a definition of “loss.” Id. Application 

Note 3(F)(i) to § 2B1.1 provides a “Special Rule” for cases involving 

counterfeit credit cards or access devices. Pursuant to the “Special 

Rule,” “loss includes any unauthorized charges made with the 

counterfeit access device or unauthorized access device and shall 

be not less than $500 per access device.” Id. § 2B1.1, cmt. n.3(F)(i). 

Application Note 3(A) to § 2B1.1 directs courts to calculate loss as 

“the greater of actual loss or intended loss.” Id., cmt. n.3(A).

In Stinson v. United States, the Supreme Court held that the 

commentary to the Guidelines is authoritative unless it: (1) violates 

the Constitution; (2) violates a federal statute; or (3) is inconsistent 

with, or a plainly erroneous reading of, a given Guideline. 508 U.S. 

36, 38, 113 S. Ct. 1913, 1915 (1993). Applying this test, the Court 

held that the definition of “crime of violence” in the commentary 

to U.S.S.G. §§ 4B1.1 and 4B1.2 was authoritative because it did not 

violate the Constitution or a federal statute and was consistent with 

the Guidelines. Id. at 47, 113 S. Ct. at 1920. 

In Kisor, the Supreme Court clarified when courts should 

defer to agency interpretations of ambiguous regulations. 139 S. 

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Ct. at 2408. The Court held that such deference is warranted only 

when a court has determined, “based on indicia like text, structure, 

history, and purpose, whether the regulation really has more than 

one reasonable meaning,” and where the interpretation “is of the 

sort that Congress would want to receive deference.” Id. at 2424. 

Although the United States Sentencing Commission is not an executive agency, Congress permissibly delegates authority to the Sentencing Commission to issue Guidelines in the same way it delegates authority to executive agencies. See Mistretta v. United 

States, 488 U.S. 361, 371, 374–80, 109 S. Ct. 647, 654, 656–59 (1989). 

We have reversed district courts’ applications of “special 

rules” from Application Notes when they contradict the Guidelines. For example, in United States v. Tejas, 868 F.3d 1242, 1245 

(11th Cir. 2017), a case involving a defendant who stole undelivered 

mail from a postal delivery vehicle, the district court applied a “special rule” set out in Application Note 4(C)(i) to § 2B1.1 for determining the number of victims in the offense. The rule provided 

that, when a mail-theft offense “involves a United States Postal Service . . . delivery vehicle . . . [the offense] shall be considered to have 

involved at least 10 victims.” Tejas, 868 F.3d at 1245 (quoting 

U.S.S.G. § 2B1.1, comment. (n.4(C)(ii))) (internal quotation marks 

omitted). Application of the rule triggered a two-level enhancement under § 2B1.1(b)(2)(A)(i) for an offense involving ten or more 

victims. Id. Because the evidence clearly demonstrated that the 

offense involved fewer than ten victims, however, we held that the 

special rule’s mandate of ten victims was inconsistent with the 

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plain text of the Guideline, which was based solely on the number 

of victims. Id. We recognized that the special rule might be reasonable in other instances where there may be doubt about the 

number of victims involved in the offense, but in the instant case it 

produced “erroneous and contrary results when the number of victims is readily determined, as it is here.” Id. at 1245–46.

This Court has not previously addressed whether Application Note 3(F)(i) contradicts the text of § 2B1.1 itself. Nevertheless, 

we have upheld district courts’ applications of § 2B1.1(b)(1) and Application Note 3(F)(i) in making fraud-loss calculations without 

questioning whether the $500-per-device “Special Rule” contradicted the text of the Guidelines. See, e.g., United States v. Maitre, 

898 F.3d 1151, 1159–61 (11th Cir. 2018); United States v. Wright, 

862 F.3d 1265, 1274–75 (11th Cir. 2017). We have also explicitly 

rejected the argument that Application Note 3(A) to § 2B1.1, instructing courts to calculate “the greater of actual loss or intended 

loss,” contradicts the plain meaning of the Guidelines’ text. See 

United States v. Moss, 34 F.4th 1176, 1190 (11th Cir. 2022) (upholding the application of Application Note 3(A) in a case involving 

Medicare and Medicaid fraud).

III. 

Corker has not shown that the District Court plainly erred 

in relying on Application Note 3(F)(i) to calculate the offense’s loss 

amount under § 2B1.1. Regarding Application Note 3(F)(i)’s $500-

per-device loss measurement, Corker simply asserts, based on two 

standard dictionary definitions, that the term “loss” plainly refers 

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to the monetary value of “something lost.” However, Corker identifies no binding Supreme Court or Eleventh Circuit cases that 

clearly establish that Application Note 3(F)(i)’s $500-per-device loss 

measurement is inconsistent with the text of § 2B1.1(b)(1), which 

provides no definition of the term “loss.” To the contrary, this 

Court has repeatedly upheld the application of Application 

Note 3(F)(i)’s $500-per-device measurement without questioning 

whether it was contrary to the plain text of § 2B1.1. See Maitre, 

898 F.3d at 1159–61; Wright, 862 F.3d at 1274.5 

Corker has also failed to show that the District Court committed plain error by relying on Application Note 3(A) to § 2B1.1. 

This Court has specifically rejected Corker’s secondary argument 

that Application Note 3(A), which instructs courts to calculate loss 

as “the greater of actual loss or intended loss,” contradicts the text 

of § 2B1.1 itself. See Moss, 34 F.4th at 1190. Accordingly, this 

Court’s decision in Moss forecloses Corker’s argument that the 

District Court plainly erred in applying Application Note 3(A) to 

§ 2B1.1. See Clark, 274 F.3d at 1326.

The decisions from the Supreme Court that Corker cites addressed general issues of when courts should treat the commentary 

to the Guidelines as authoritative, Stinson, 508 U.S. at 38–39, 47, 

5 In his brief before this Court, Corker cited a Sixth Circuit case to support the 

proposition that the $500-per-device measurement is not part of “loss” as used 

in the Guideline. See United States v. Ricciardi, 989 F.3d 476 (6th Cir. 2021). 

However, the Sixth Circuit case that Corker identifies is not binding precedent 

that could establish plain error in this Circuit. 

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113 S. Ct. at 1915–16, 1920, and when agency interpretations of 

rules are authoritative, Kisor, 139 S. Ct. at 2408. This Court recently held that Kisor applies to the Sentencing Guidelines, concluding that the Court may not defer to the commentary “if uncertainty does not exist in the Guideline.” United States v. Dupree, 

No. 19-13776, slip op. at 12 (11th Cir. Jan. 18, 2023). However, the 

question of whether Stinson and Kisor govern how much deference to give to Guidelines commentary is a separate issue from 

whether binding precedent holds that Application Note 3(A) and 

Application Note 3(F)(i) are inconsistent with the Guidelines’ 

text—which Corker must show to prove plain error. Lejarde-Rada, 

319 F.3d at 1291. Corker’s assertion that our holding in Tejas supports a finding of plain error in this case also fails because Tejas 

involved a different provision from the ones at issue here. Tejas, 

868 F.3d at 1245 (quoting U.S.S.G. § 2B1.1(b)(2)(A)(i)). 

IV. 

Here, the District Court did not plainly err in applying the 

$500-per-device rule in Application Note 3(F)(i) because no binding 

precedent clearly establishes that Application Note 3(F)(i) is inconsistent with the Guidelines’ text. Further, Corker’s argument that 

the District Court plainly erred in applying Application Note 3(A) 

is foreclosed by this Court’s binding precedent in Moss. Finally, 

the District Court did not plainly err in light of Kisor, as Kisor does 

not resolve the specific question presented in this case—whether 

the District Court’s loss calculations directly contravened binding 

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precedent, as required under the plain-error test. The District 

Court’s decision is accordingly

AFFIRMED. 

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