Sentencing Guidelines – The Guidelines commentary directing courts to calculate a minimum loss amount of $500 for each unauthorized access device improperly expands the text of the substantive guideline under USSG 2B1.1.
The defendant challenged her sentence for possession of unauthorized access devices, arguing that the district court erred in calculating the loss amount based on an application of the Application Notes to U2B1.1 which set the minimum loss amount for each device at $500.
Under Application Note 3(F)(i) to 2B1.1, courts are directed to impose a loss of at least $500 for each unauthorized access device, which include stolen gift cards and credit cards. The defendant argued, and the Sixth Circuit agreed, that “guidelines commentary may only interpret, not add to, the guidelines themselves,” and that “the commentary’s bright-line rule requiring a $500 loss amount for every gift card…cannot be considered a reasonable interpretation of – as opposed to an improper expansion beyond – §2B1.1’s text.”
The Court also recognized that the $500 rule was not a result of interpreting the substantive guidelines provision. It was a “a substantive policy choice” wherein the courts are asked to impose a fictional loss amount where another one cannot be reasonably ascertained and “the Commission may not make this kind of substantive policy choice in the commentary and claim that its choice represents nothing more than an ‘interpretation’ of the guideline.”
The case followed a recent trend wherein courts have reversed sentences based on commentary to the guidelines where the commentary expands the conduct specified in the guidelines, such as the Sixth Circuit’s opinion in United States v. Havis where it held that the definition of “controlled substance offense” under the career offender provisions improperly expanded the definition under the guidelines themselves.
Appeal from the Northern District of Ohio
Opinion by Murphy, joined by Daughtrey, Nalbandian
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