* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30830

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOSEPH R BARTHOLOMEW, III

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:05-CR-159-1

Before KING, DENNIS, and OWEN, Circuit Judges. 

PER CURIAM:*

Joseph R. Bartholomew, III, appeals the sentence imposed following his

conviction of conspiracy to possess, steal, and embezzle United States Treasury

checks, forging endorsements on United States Treasury checks, theft of mail

matter, and theft of mail matter by an officer or employee, in violation of 18

U.S.C. §§ 371, 510(b)(2), and 1709. He argues that the district court erred at

sentencing by increasing his offense level by two levels pursuant to U.S.S.G.

§ 2B1.1(b)(10)(C)(i) (2006) based on the finding that the offense involved “the

United States Court of Appeals

Fifth Circuit

F I L E D

August 20, 2008

Charles R. Fulbruge III

Clerk
No. 07-30830

2

unauthorized transfer of any means of identification unlawfully to produce or

obtain any other means of identification,” increasing his offense level by four

levels pursuantto U.S.S.G. § 2B1.1(b)(2)(B) based on the finding thatthe offense

involved 50 or more victims, and increasing the offense levels by two levels based

on U.S.S.G. § 3B1.1(c) after finding that Bartholomew was an organizer, leader,

manager, or supervisor in the criminal activity.

Regarding § 2B1.1(b)(10)(C)(i), Bartholomew argues that this guideline

applies where someone steals another person’s identity and attempts to establish

new credit. He argues that he and his coconspirators were merely trying to

produce identification to allow them to cash stolen checks and that the guideline

does not reach this type of conduct. Although Bartholomew challenged the

application of § 2B1.1(b)(10)(C)(i) in the district court, he did not present to the

district court the same argument that he presents to this court regarding this

issue. Plain error review therefore governs this issue. See United States v.

Green, 324 F.3d 375, 381 (5th Cir. 2003). This court may correct the sentencing

determination only if (1) there is an error, (2) that is plain, meaning an error

that is clear under current law, and (3) it affects substantial rights. See United

States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007), cert. denied, 2008 WL 227315

(June 23, 2008) (No. 07-8978); United States v. Molina, 469 F.3d 408, 411 (5th

Cir. 2006). The decision to correct the error is within the sound discretion of this

court and this court should not correct the error unless it “seriously affects the

fairness, integrity or public reputation of judicial proceedings.” Peltier, 505 F.3d

at 392.

Section § 2B1.1(b)(10)(C)(i) provides that the offense level is increased by

two levels if the offense involved “the unauthorized transfer or use of any means

of identification unlawfully to produce or obtain any other means of

identification.” § 2B1.1(b)(10)(C)(i). The guideline focuses on an aggravated

form of identity theft where a defendant uses another individual’s name, social

security number, or some other form of identification to produce or obtain new
No. 07-30830

3

or additional forms of identification. § 2B1.1, comment. (background). Evidence

establishes that Bartholomew’s offense involved unauthorized use of a name

taken from Treasury checks that Bartholomew, a postal worker, stole, to produce

false identification using that name. As the guideline language indicates that

§ 2B1.1(b)(10)(C)(i) is properly applied where an offense involves unauthorized

use of a name to produce false identification, the guideline language indicates

that § 2B1.1(b)(10)(C)(i) was properly applied in this case. Bartholomew does

not cite contrary authority. The district court therefore did not commit plain

error when it applied § 2B1.1(b)(10)(C)(i). See Molina, 469 F.3d at 411

(observing that in plain error review there must be error that is clear under

existing law).

Bartholomew argues, as he did in the district court, that the district court

erred when it determined that a four-level offense level increase pursuant to

§ 2B1.1(b)(2)(B) was applicable because the offense involved 50 or more victims.

A “special rule” provides that, in cases involving undelivered U.S. mail that

involve a United State Postal Service relay box, collection box, delivery vehicle,

satchel, or cast, the offense “shall be considered” to have at least 50 victims.

§ 2B1.1(2)(B), comment. (n.4(C)(ii)(I)). A district court’s interpretation or

application of the Sentencing Guidelines is reviewed de novo, and its factual

findings are reviewed for clear error. See United States v. Cisneros-Gutierrez,

517F.3d 751, 764 (5th Cir. 2008). Trial testimony established that Bartholomew

used his mail delivery vehicle in the offense. As the offense involved a postal

service delivery vehicle, the determination that the offense involved at least 50

victims is plausible in light of the record. See § 2B1.1(2)(B), comment.

(n.4(C)(ii)(I)); Cisneros-Gutierrez, 517 F.3d at 764. The district court did not err

in its application of § 2B1.1(b)(2)(B). See Cisneros-Gutierrez, 517 F.3d at 764.

Bartholomew argues, as he did in the district court, that the district court

erred when it increased his offense level by two levels pursuant to § 3B1.1(c).

He argues that the record is devoid of evidence indicating that he was an
No. 07-30830

4

organizer, leader, manager, or supervisor, asserting that his role was simply to

provide stolen checks. Bartholomew had access to the checks and was the

supplier ofthe tools ofthe conspiracy. Moreover, Bartholomew exercised control

over the conspiracy and provided instructions regarding the conspiracy. Thus,

the district court’s findings are plausible in light of the record. See

Cisneros-Gutierrez, 517 F.3d at 764.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.