Sentencing Guidelines/Victim Enhancement – For purposes of defining “victims” under U.S.S.G. § 2B1.1(b)(2), victims do not include those whose means of identification have merely been stolen, sold, or transferred without a showing that the means of identification was used to obtain something of value.
Tanganica Corbett pleaded guilty to federal charges of identify fraud. At sentencing, the district court enhanced her offense level under the Guidelines based on a loss amount between $150,000 and $250,000 and a finding that her offense involved ten or more victims. She appealed, and the Court reviewed application of the enhancements for plain error.
The Court reversed the district court’s application of the number-of-victims enhancement under U.S.S.G. § 2B1.1(b)(2)(A)(i), in which the Application Notes define identity-fraud victims as those “whose means of identification were used unlawfully or without authority.”
Corbett participated in a conspiracy in which she sold people’s “identifiable health information,” using her employment at a Florida Hospital to unlawfully download more than 1,700 means of identification. Corbett argued that the enhancement should not apply because only a handful of victims suffered financial harm as a result of having their means of identification unlawfully accessed. The district court disagreed, opining that “anybody [whose] information was stolen is a victim.”
The district court plainly erred in defining “victims” that way, the Court held on appeal, citing United States v. Hall, 704 F.3d 1317 (11th Cir. 2013). In Hall, the Court had clearly held that the “mere sale or transfer” of identifying information was not “equivalent of its actual use.”
Accordingly, the government would have had to prove that Corbett actually used the means of identification of 10 or more people to procure credit cards or other things of value. It was not enough to argue that Corbett “used” them to further the conspiracy’s purpose of enriching herself and her co-conspirator. The Court vacated Corbett’s sentence, finding that there was a reasonable probability that the error affected Corbett’s sentence, notwithstanding that the district court varied downward significantly.
The Court affirmed the loss amount, however, rejecting Corbett’s argument that the district court failed to hold the government to its burden of proving a disputed fact regarding the loss amount. The Court held that Corbett did not sufficiently identify “what ‘sentencing fact’ related to the loss amount was ‘disputed,’” noting that she did not object to the facts in the PSI and only offered “legal objections.”
The Court acknowledged her arguments regarding the Hospital’s losses not being “reasonably foreseeable to her,” but held that this did not involve a disputed fact. Moreover, by failing to object to the PSI’s factual assertions, Corbett admitted that the Hospital’s losses were associated with identifying and notifying compromised patients, and not expenses “primarily to aid the government.” Accordingly, there was no disputed fact that the government did not prove. The Court made it a point to “remind the defense bar of the important of specific factual and legal argumentation at every stage of sentencing proceedings.”
Appeal from the Middle District of Florida
Opinion by W. Pryor, joined by Newsom and Vratil (by designation from D. Kansas)