United States Court of Appeals

For the Eighth Circuit

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No. 13-3544

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Kenvis Norwood

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: September 12, 2014

 Filed: December 18, 2014

[Published]

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Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.

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PER CURIAM. 

Kenvis Norwood appeals from the sentence imposed by the district court for

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conspiracy to commit bank fraud. Norwood argues that the district court improperly

The Honorable David Gregory Kays, United States District Judge for the

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Western District of Missouri.
enhanced his sentence for use of sophisticated means and for the unauthorized use of

a means of identification to produce or obtain another means of identification. We

affirm. 

I. Background

Norwood pleaded guilty to one count of knowingly and intentionally

conspiring with Exavius Tatum, Joe Javonta Brown, Patrick Julius Giles, Jr., Gregory

Jennings, D'Andre Carter, Tyrique Eggleston, Corey Odom, Vincent Mitchell, and

William Brandon McCaslin to commit bank fraud in violation of 18 U.S.C. § 1349.

The scheme started on October 22, 2011, with the theft of United States mail from

approximately 20 businessesin Olathe, Kansas. Shortly thereafter, banks noticed that

computer-generated counterfeit checks were being cashed from the very accounts of

the businesses that had reported the mail theft. The scheme spread to Leawood,

Kansas and Kansas City, Missouri, where further police investigation led to the

discovery of the scheme's modus operandi. Two men recruited the homeless to go to

banks and cash their computer-generated counterfeit checks. 

Norwood became involved with the scheme in May 2012 when he traveled

from his home in Atlanta, Georgia to Springfield, Missouri, with his friend and

coconspirator Tyrique Eggleston. Eggleston told Norwood about his plan to recruit

homeless men to cash counterfeit checks, and he wanted Norwood to accompany and

assist him. Norwood agreed. During their stay in Springfield, both Norwood and

Eggleston stayed at the same hotel with coconspirators who printed the computergenerated fraudulent checks. On May 2, 2012, Eggleston recruited homeless men to

cash checks while Norwood waited in their car. While Eggleston talked, Norwood

mostly acted as security so Eggleston would not be threatened by the homeless men

that were recruited. When recruiting these men, Eggleston and Norwood would ask

for each person's government-issued identification card so that the fraudulent checks

could be printed using that person's legal name. Eventually, the Springfield Police

Department arrested Eggleston and Norwood. The pair had successfully cashed four

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checks totaling $12,321.79, and two uncashed checks for an additional $4,163.87

were found in their vehicle.

At the sentencing hearing, the district court first considered the two-level

enhancement for use of sophisticated means as called for in the presentence

investigation report (PSR) prepared by the United States Probation Office to assist

with sentencing. The government offered no additional evidence at the hearing. The

court believed that none was needed stating, "I don't think we need to have any

evidence on [sophisticatedmeans]. You [Norwood] agree to the facts basically; right?

. . . I don't think we need any." Neither party objected to the facts giving rise to the

enhancement. After deciding that the sophisticated-means sentencing enhancement

should apply, the court moved on to the two-level enhancement for the unauthorized

use of a means of identification to produce or obtain another means of identification.

As before, the parties did not dispute the facts, so the government did not produce any

evidence pertaining to this enhancement. Further, both sides declined oral argument

on the application of this enhancement. Based on the uncontested facts of the case,

the court applied the two-level means-of-identification enhancement to Norwood's

total offense level. 

Norwood appeals, arguing that the district court improperly applied both

sentencing enhancements because Norwood had only limited knowledge and

participation in the conspiracy. Given his limited involvement, he argues that he

should not be held responsible for the actions of the entire conspiracy since they were

not foreseeable. Further, Norwood contests the sufficiency of the evidence used to

establish the predicate facts for both enhancements.

II. Discussion

A. Application of Sentencing Enhancements

Norwood first argues that his limited involvement in the conspiracy made it

impossible for him to foresee the full extent of the fraudulent scheme; as a result, he

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contendsthat the district court erred by holding himaccountable for the losses caused

by the conspiracy. We review the district court's application of the Guidelines and

imposition of sentencing enhancements de novo. United States v. Scott, 448 F.3d

1040, 1043 (8th Cir. 2006) (citing United States v. Noe, 411 F.3d 878, 888 (8th Cir.

2005)). We also note that "sentencing judges are required to find sentence-enhancing

facts only by a preponderance of the evidence." Id. (citing United States v. Pirani,

406 F.3d 543, 551 n.4 (8th Cir. 2005) (en banc)). We review factual findings at

sentencing for clear error. United States v. Finck, 407 F.3d 908, 913 (8th Cir. 2005)

(citing United States v. Hart, 324 F.3d 575, 579 (8th Cir. 2003)). 

1. Sophisticated Means

Sophisticated means is defined as "especially complex or especially intricate

offense conduct pertaining to the execution or concealment of an offense." U.S.S.G.

§ 2B1.1(b)(10)(C), cmt. n.9(B). "'Even if any single step is not complicated, repetitive

and coordinated conduct can amount to a sophisticated scheme.'" United States v.

Huston, 744 F.3d 589, 591–92 (8th Cir. 2014) (quoting United States v. Fiorito, 640

F.3d 338, 351 (8th Cir. 2011)). "We review the factual finding of whether a

. . . scheme qualifies as 'sophisticated' for clear error." Id. at 592 (alteration in

original) (quoting United States v. Brooks, 174 F.3d 950, 958 (8th Cir. 1999)). 

"Sophisticated means" need not be highly sophisticated. The application of

"[t]he sophisticated-means enhancement is proper when the offense conduct, viewed

as a whole, 'was notably more intricate than that of the garden-variety [offense].'"

United States v. Jenkins, 578 F.3d 745, 751 (8th Cir. 2009) (alteration in original)

(quoting United States v. Hance, 501 F.3d 900, 909 (8th Cir. 2007)); see, e.g., Finck,

407 F.3d at 911–12, 915 (finding the sophisticated-means enhancement was

appropriately applied where the defendant "engaged in a repetitive and coordinated

scheme to obtain vehicles" by calling or faxing a company that money to purchase

vehicles had been wired into its bank account); United States v. Anderson, 349 F.3d

568, 570–71 (8th Cir. 2003) (holding the sophisticated-means enhancement was

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appropriately applied in a ponzi scheme where the defendant tried to conceal his

fraud by telling his victims that the shares they bought in the defendant's sham

company would be compensated with worthless bonds of another sham company).

Here, the district court's findings of fact were not clearly erroneous: Norwood

knowingly accompanied Eggleston to recruit homeless men, helped Eggleston obtain

these men's government-issued identification cards, had knowledge that these

identification cards were being used by coconspirators to print fraudulent checks at

the hotel where he stayed, and then gave these checks to the homeless men to cash.

Reviewing the application ofthe sentencing enhancement de novo, we determine that

Norwood's actions and knowledge of the conspiracy, despite their limits, rise to the

level of complexity sufficient to justify the application of the sophisticated-means

enhancement. The scheme Norwood participated in exceeds the "garden-variety"

scheme to commit bank fraud. Even the limited part of the scheme involving

Norwood required recruiting othersso asto avoid detection, using government-issued

identification cards, and using this identification to create computer-generated checks. 

2. The Unauthorized Transfer or Use of Any Means of Identification 

Unlawfully to Produce or Obtain Any Other Means of Identification

Norwood also contends that the district court erred by enhancing his sentence

for the "the unauthorized transfer or use of any means of identification unlawfully to

produce or obtain any other means of identification." U.S.S.G. § 2B1.1(b)(11)(C)(i).

Themeans-of-identification enhancement was originally designed to combat the harm

"which resultsfromusing someone's identifying information to establish new credit."

United States v. Williams, 355 F.3d 893, 900 (6th Cir. 2003). According to examples

in the Guidelines, application is appropriate when a defendant uses "a means of

identification to obtain a bank loan or a credit card in the individual's name. The

[enhancement] does not apply, however, to a defendant who merely forges another's

signature to cash a stolen check or uses a stolen credit card to make a purchase."

Scott, 448 F.3d at 1045 (citing U.S.S.G. § 2B1.1, cmt. n.9(C)(ii)–(iii)). 

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According to Norwood, he never produced or obtained another means of

identification as required by the enhancement, even taking into account his

coconspirators' acts. While Norwood concedes that he used a means of identification

by obtaining the government-issued identification cards from the homeless men that

were recruited, he denies that reprinting their names on counterfeit checks amounts

to producing another means of identification. 

The term "'means of identification' has the meaning given that term in 18

U.S.C. § 1028(d)(7)," U.S.S.G. § 2B1.1, cmt. n.1, which in turn defines the term as

"any name or number that may be used, alone or in conjunction with any other

information, to identify a specific individual." 18 U.S.C. § 1028(d)(7). It is not readily

apparent if a computer-generated check that has a bank's routing number, a business's

bank account number, and a homeless man's name qualifies as such a "means of

identification."

Our most analogous application of the means-of-identification sentencing

enhancement was in United States v. Scott. In Scott, the defendant's coconspirators

bought individuals' identification cards, socialsecurity cards, and payroll checks, and

obtained legitimate business names and account numbers. Scott, 448 F.3d at 1042.

The defendant used these means of identification to create computer-generated

counterfeit checks with the business account information made payable to the

individuals whose identifying information was sold to the coconspirators. Id. The

coconspirators then opened up accounts in the individuals' names and started

depositing and cashing the counterfeit checks to obtain cash. Id. We upheld the

imposition of the means-of-identification sentencing enhancement because

a bank account number is a unique identification number, and because

Scott's conduct is more akin to using a means of identification to obtain

a bank loan than to merely forg[e] another's signature to cash a stolen

check, we conclude that the district court's imposition of a two-level

enhancement was appropriate.

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Id. at 1045 (citing United States v. Oates, 427 F.3d 1086, 1089–90 (8th Cir. 2005);

Williams, 355 F.3d at 899–900). Our decision in Scott, thus, was based on the finding

that the coconspirators' creation of bank accounts in the names of the individuals

whose identifications were obtained constituted a new means of identification. The

district court made no such finding in this case. 

Looking to our sister circuits, we agree with the Third Circuit's analysis and

holding in United States v. Newsome, 439 F.3d 181 (3d. Cir. 2006), concluding that

duplicating a means of identification onto another medium satisfies the sentencing

enhancement where that duplication enables an altered or hybrid means of

identification or false identification. In Newsome, conspirators obtained the personal

and banking information of customers at a bank, and used this information to create

driver's licenses with the customers' information, but the picture of a conspirator. Id.

at 183. The conspirators would then make withdrawals from the bank, presenting the

false driver'slicense to establish their faux identity. Id. The defendant argued that the

means-of-identification enhancement should not apply because he merely took the

customers' information and transferred it to false driver's licenses; thus, he did not

create or produce a "new" means of identification such as a bank account number, but

only duplicated the same information in another form. Id. at 184–85. The Third

Circuit disagreed, stating that "[t]he phrase 'any other means of identification' . . . 

does not mean 'different' as [the defendant] would read it. Rather, it is a broader

phrase meaning 'additional' as evinced by the Commentary's definition of 'produce'

as including 'manufacture, design, alter, authenticate, duplicate, or assemble.'" Id. at

185 (emphasis in original) (quoting U.S.S.G. § 2B1.1, cmt. n.9(A) (2006) (current

version at U.S.S.G. § 2B1.1, cmt. n.10(A) (2013)). Given that the sentencing

enhancement contemplatesthe "[a]lteration, duplication, and assembly" of "means of

identification," the Third Circuit found that the defendant's actions of copying

customers' information onto a new medium, a fake driver's license, fell within the

intent of the enhancement. Id. at 185–86.

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Norwood's argument mirrors the defendant's failed argument in Newsome,

contending that the mere copying of real bank account numbers and routing numbers

of businesses and banks respectively onto computer-generated checks is not

producing or creating a means of identification. We read the Guidelines's definition

of "produce" to include duplicating a means of identification such as a bank account

number and transferring it onto a new medium, such as a counterfeit check. While the

district court reached the same conclusion for different reasons, we need not remand

the case, but affirm based on our analysis.2

B. Sufficiency of the Evidence

Norwood also argues that the government failed to present sufficient evidence

to support the sentencing enhancement's application. "'If the defendant objects to any

of the factual allegations contained [in the PSR] . . . , the government must present

evidence at the sentencing hearing to prove the existence of the disputed facts.'"

United States v. Hartstein, 500 F.3d 790, 796 (8th Cir. 2007) (alteration in original)

(emphasis added) (quoting United States v. Jenners, 473 F.3d 894, 897–98 (8th Cir.

2007)). Norwood is correct that evidence is required to prove the factual allegations

supporting a sentencing enhancement. However, the factual allegations already

contained in the record before the district court are uncontested. If those facts justify

the enhancement, no additional evidence is required. The government need not

present evidence to establish facts that Norwood has already conceded. See, e.g.,

Huston, 744 F.3d at 591–92 (upholding an application of the sophisticated-means

Additionally, the means-of-identification enhancement applies when, as in 2

Norwood's case, counterfeit checks are printed with existing bank account and

routing information because the check itself would qualify as another means of

identification. Other circuits have so concluded. See United States v. Alexander, 725

F.3d 1117, 1119–20 (9th Cir. 2013) (finding that the plain language of § 1028(d)(7)

includes a counterfeit check with an individual's name, bank account number, and

bank routing number as a means of identification). We agree with our sister circuits

that such a check is within the statutory meaning of 18 U.S.C. § 1028(d)(7).

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enhancement even though "[n]o party submitted evidence on this issue at either

sentencing hearing").

III. Conclusion

For the foregoing reasons, we affirm the district court's imposition of both the

sophisticated-means and means-of-identification sentencing enhancements.

Additionally, the district court did not err by imposing these enhancements without

hearing evidence on the issues because the material facts were undisputed.

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