PRECEDENTIAL
     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 19-3033
                  _____________

         UNITED STATES OF AMERICA

                         v.

                  SCOTT CAPPS,
                       Appellant
                 _______________

   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
            (D.C. No. 2-18-cr-0572-001)
     District Judge: Hon. Michael M. Baylson
                 _______________

                      Argued
                   June 16, 2020

Before: JORDAN, MATEY and ROTH, Circuit Judges.

              (Filed: October 8, 2020)
                 _______________
Abigail E. Horn [ARGUED]
Leigh M. Skipper
Federal Community Defender Office
  For the Eastern District of Pennsylvania
601 Walnut Street – Suite 540
Philadelphia, PA 19106
      Counsel for Appellant

David J. Ignall [ARGUED]
Office of United States Attorney
615 Chestnut Street – Suite 1250
Philadelphia, PA 19106
      Counsel for Appellee
                      _______________

                  OPINION OF THE COURT
                      _______________

JORDAN, Circuit Judge.

       While working for The Vanguard Group (“Vanguard”),
Scott Capps fraudulently caused funds from dormant accounts
to be mailed to co-conspirators, one of whom then wrote
checks conveying back to him some of the proceeds. Capps
was eventually charged with, and pled guilty to, conspiracy to
commit mail fraud, money laundering, and tax evasion. At
sentencing, he did not raise any objections to the Presentence
Report (“PSR”) that had been prepared, and the District Court
adopted its calculation of the applicable guidelines range.

       Capps now contends that the District Court plainly erred
in applying two upward adjustments in calculating his
guidelines range. First, he says that, in setting the offense level




                                2
for the money laundering, the District Court wrongly applied
an adjustment for abuse of a position of trust (“the abuse of
trust adjustment”). Second, he makes two arguments that the
District Court erred in applying an adjustment for deriving
more than $1 million from a financial institution (“the gross
receipts adjustment”). More specifically, he says that the gross
receipts adjustment should not have been applied because the
account holders, not Vanguard, were the source of the funds,
and he further argues that the District Court made contradictory
statements about whether he met the threshold for the
adjustment to apply.

        As to the offense calculation for money laundering, we
agree that the District Court plainly erred in applying the abuse
of trust adjustment. As to the application of the gross receipts
adjustment, we conclude that, while the District Court did not
plainly err in deciding the adjustment could be applicable, it is
not clear on this record whether Capps met the threshold for
the adjustment to actually apply. We will therefore vacate
Capps’s sentence and remand for resentencing.

I.     BACKGROUND

       Vanguard is “an investment management group that
manage[s] trillions of dollars in assets for account holders
throughout the world.” (Indictment, App. at 16.) Through his
employment there, Capps was able to identify accounts that
were due for escheatment because of, for example, the death of
an account holder with no heirs or the abandonment of funds
in an account. Capps drew the money from such accounts by
surreptitiously using subordinates’ passwords and causing
Vanguard to mail checks drawn on the accounts to his friend,




                               3
Lance Tobin, and others. He concealed his actions by
falsifying documents and deleting records.

       Tobin deposited the stolen funds into his bank accounts
and then wrote checks back to Capps to pay him a portion of
the criminal proceeds. As stated in the indictment, Capps
received at least two checks from Tobin, one for $555,200 and
one for $29,750. Capps deposited those checks in his bank
account and did not report the income on his federal tax returns.

       When the scheme came to light, Capps was charged
with conspiracy to commit mail fraud in violation of 18 U.S.C.
§ 1349, money laundering in violation of 18 U.S.C.
§§ 1956(a)(1)(B)(i) and 2, and filing a false tax return in
violation of 26 U.S.C. § 7206(1). He pled guilty to all charges.

        A PSR was prepared, employing the United States
Sentencing Guidelines. It calculated Capps’s offense level for
money laundering, though not for conspiracy to commit mail
fraud, and included two separate 2-level adjustments that
Capps now disputes: the abuse of trust adjustment and the
gross receipts adjustment. At the time of sentencing, however,
neither party raised any objections to the PSR, and the District
Court adopted its recommendations without change. The
resulting guidelines range was 63 to 78 months. The Court
varied downward and sentenced Capps to 48 months’
imprisonment and 3 years’ supervised release. It also ordered
Capps to pay $2,137,580.81 in restitution to Vanguard. Capps
now appeals.




                               4
II.    DISCUSSION1

       Capps argues that the District Court erred in applying
both the abuse of trust adjustment and the gross receipts
adjustment. We address each in turn.

       Before turning to the merits, however, we first note the
standard of review and how it marks our analytical path.
Because Capps did not at sentencing raise any objections to the
application of the adjustments, we review for plain error. The
plain-error standard requires, first, an error, second, that the
error be plain – “that is to say, clear or obvious[,]” and third, a
“reasonable probability that, but for the error, the outcome of
the proceeding would have been different.” Molina-Martinez
v. United States, 

, 1343 (2016) (citation and
internal quotation marks omitted). This third prong of the
standard is sometimes described as requiring that the plain
error has affected the defendant’s substantial rights. United
States v. Olano, 

, 732 (1993). “Once these three
conditions have been met,” there is a fourth prong to the test,
which advises that “the court of appeals should exercise its
discretion to correct the forfeited error if the error ‘seriously
affects the fairness, integrity or public reputation of judicial
proceedings.’” 

(quoting

).

       The Supreme Court has given directly pertinent
guidance on how the third and fourth prongs of the plain-error
test apply in cases like this. As to the third prong, the Court

       1
         The District Court had jurisdiction under 18 U.S.C.
§ 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a).




                                5
has explained that “[i]n most cases a defendant who has shown
that the district court mistakenly deemed applicable an
incorrect, higher Guidelines range has demonstrated a
reasonable probability of a different outcome.”

And, concerning the fourth prong, the Court has said that,
where the guidelines have been miscalculated, a “reasonable
citizen” would “bear a rightly diminished view of the judicial
process and its integrity.” Rosales-Mireles v. United States,

, 1908 (2018). Of course, “any exercise of
discretion … inherently requires a case-specific and fact-
intensive inquiry.”

(internal quotation marks
omitted). But, “[i]n the ordinary case … the failure to correct
a plain Guidelines error that affects a defendant’s substantial
rights will seriously affect the fairness, integrity, and public
reputation of judicial proceedings.”

       Nothing in this case suggests that we should stray from
those general principles, so we take the third and fourth prongs
of the plain-error test as being met here and are only left to
determine whether the District Court erred in applying the
adjustments and, if so, whether those errors were plain. In
short, we are examining prongs one and two.

       A.     The Adjustment for Abuse of Trust

       Capps first argues that the District Court erred in
applying the abuse of trust adjustment to his money laundering
conviction. That adjustment, set forth in Chapter 3 of the
Sentencing Guidelines, tells a sentencing court that, “[i]f the
defendant abused a position of public or private trust, or used
a special skill, in a manner that significantly facilitated the
commission or concealment of the offense, increase [the
offense level] by 2 levels.” U.S.S.G. § 3B1.3. Importantly,




                               6
however, Note 2(c) of § 2S1.1, the guideline applicable to
money laundering convictions, directs that adjustments
contained in Chapter 3 are to be applied based on the money
laundering behavior alone, not on the underlying offense from
which the laundered funds were derived. In other words, the
abuse of a position of trust has to be manifested in how the
money is laundered, not in how the money was gained.
According to Capps, the District Court plainly erred because,
in applying the adjustment, it relied on his position at Vanguard
and his conduct related to the conspiracy to commit mail fraud,
not on any position he had or anything he did in laundering the
stolen funds. We agree.

                  1. Calculating the Offense Levels

       To explain the error, we need to walk through the
guidelines calculations for both Capps’s mail fraud and money
laundering convictions, 2 as the guidelines require a sentencing
court to group those convictions by choosing the highest
offense level calculation after calculating the level for each
offense separately. See U.S.S.G. § 2S1.1 cmt. n.6 (“In a case
in which the defendant is convicted of a count of laundering
funds and a count for the underlying offense from which the
laundered funds were derived, the counts shall be grouped
pursuant to subsection (c) of §3D1.2[.]”); U.S.S.G. § 3D1.3(a)

       2
         For ease of reference, we speak in terms of Capps’s
“mail fraud” conviction, recognizing that the conviction was,
more precisely, for conspiracy to commit mail fraud. The
distinction has no bearing on our analysis. See U.S.S.G.
§ 2X1.1(a) (providing that the offense level for conspiracy is
the same as the offense level for the substantive offense).




                               7
(“In the case of counts grouped together pursuant to §3D1.2(a)-
(c), the offense level applicable to a Group is the offense level
… for the most serious of the counts comprising the
Group, i.e., the highest offense level of the counts in the
Group.”).

       Mail fraud has a base offense level of 7. U.S.S.G.
§ 2B1.1(a)(1). 16 levels must be added for a loss between
$1,500,000 and $3,500,000.         U.S.S.G. § 2B1.1(b)(1)(I).
Assuming for the moment the applicability of the gross receipts
adjustment, an additional 2 levels are added. 3 U.S.S.G.
§ 2B1.1(b)(17)(A). And a further 2-level abuse of trust
adjustment applies because Capps’s position of trust at
Vanguard significantly facilitated his mail fraud offense.
U.S.S.G. § 3B1.3. Capps agrees that, had the PSR calculated
the guidelines range for his mail fraud conviction, the
adjustment for abuse of a position of trust would have applied
to that offense level. The total adjusted offense level, then
(before any reduction for acceptance of responsibility), is 27.

       The base offense level for money laundering is the
“offense level for the underlying offense from which the
laundered funds were derived[.]” U.S.S.G. § 2S1.1(a)(1).
Here, that is mail fraud, so the base offense level is, again, 7.
U.S.S.G. § 2B1.1(a)(1). As with the mail fraud calculation, 16
levels must be added for a loss between $1,500,000 and
$3,500,000, U.S.S.G. § 2B1.1(b)(1)(I), along with an
additional 2 levels under the gross receipts adjustment,
U.S.S.G. § 2B1.1(b)(17)(A), assuming it applies. For the

       3
        Capps challenges the application of the gross receipts
adjustment, and we address that challenge infra.




                               8
money laundering calculation, an additional 2 levels are added
because Capps was convicted under 18 U.S.C.§ 1956.4
U.S.S.G. § 2S1.1(b)(2). That adds up to an adjusted offense
level of 27, the same as the mail fraud offense level. But the
PSR also added the 2-level adjustment for abuse of a position
of trust, pursuant to U.S.S.G. § 3B1.3, bringing the total
offense level (before any reduction for acceptance of
responsibility) to 29. Consequently, the offense level for the
grouped counts became that higher number, and his guidelines
range was correspondingly increased. That’s the problem. If
the abuse of trust adjustment is inapplicable, the range is
wrong.

       In determining whether to apply the abuse of trust
adjustment, we use a two-step inquiry. United States v.
Douglas, 

, 130 (3d Cir. 2018) (en banc). “First,
we must determine whether the defendant actually occupied a
position of public or private trust.”

At that step, we
“ask whether the defendant had the power to make decisions
substantially free from supervision based on (1) a fiduciary or
fiduciary-like relationship, or (2) an authoritative status that

       4
           Section 1956 of Title 18 is the money laundering
statute that Capps pled guilty to violating. Specifically, he pled
to violating 18 U.S.C. § 1956(a)(1)(B)(i), which provides, in
pertinent part, that whoever launders funds “knowing that the
transaction is designed in whole or in part … to conceal or
disguise the nature, the location, the source, the ownership, or
the control of the proceeds of specified unlawful activity” shall
face various penalties. The guideline for money laundering
instructs that 2 levels should be added in calculating the
guidelines range for defendants convicted under that statute.
U.S.S.G. § 2S1.1(b)(2).




                                9
would lead his actions or judgment to be presumptively
accepted.”

“[I]f we conclude that the defendant did
hold such a position,” we reach the second step, where the
question is “whether the defendant abused this position in a
manner that significantly facilitated his crime.”

(citation and internal quotation marks omitted). In answering
that question, “courts should consider, among other things,
whether the defendant’s position allowed him to commit a
difficult-to-detect wrong, and the defendant’s authority vis-à-
vis the object of the wrongful act. Courts may also consider
whether the victim relied on the defendant’s integrity, such that
the victim became a more susceptible target for the defendant.”

         Capps argues that the guidelines calculation contained
in the PSR and adopted by the District Court violated
Commentary Note 2(c) to the money laundering guideline,
§ 2S1.1, by incorrectly basing the application of the abuse of
trust adjustment on his conduct in the underlying offense, the
mail fraud. He insists that he had no position of trust with
respect to the money laundering and so could not have abused
it. On this record, he is correct.

       Supporting the abuse of trust adjustment, the PSR said:

       As a supervisor at Vanguard, the defendant stole
       the passwords of subordinates and used those
       passwords to access the Vanguard system used
       to issue checks and submit requests to have
       checks issued on certain dormant accounts, all in
       an effort to conceal his conduct. Capps then
       deleted and attempted to delete the record
       transactions in Vanguard’s system related to the




                               10
       falsely submitted requests and improper
       approvals for checks issued by Vanguard on
       certain dormant accounts. The defendant abused
       a position of public or private trust in a manner
       that significantly facilitated the commission or
       concealment of the offense; therefore, the
       offense level is increased by two levels, pursuant
       to USSG §3B1.3.

(Presentence Report at 7.)

        That justification for the adjustment would make perfect
sense, if the count at issue were the mail fraud conviction. But
it isn’t. The PSR did not calculate the mail fraud guidelines
range, though it should have.5 It only calculated the range for
the money laundering. According to the indictment, the factual
basis for the money laundering charge is that Capps caused two
checks to be issued to him by a co-conspirator, knowing that
the property involved in those financial transactions
represented the proceeds of the mail fraud. 6 His position at
Vanguard was indeed “a position of public or private trust” that
he abused to commit the fraud, but it was irrelevant to the

       5
         The government does not contest that the PSR should
have calculated the guidelines for both money laundering and
mail fraud. (See Answering Br. at 10 (“Much of the analysis
presented in the appellant’s brief is correct: With the fraud and
money laundering counts grouped, the court must determine
the offense level applicable to each type of offense, and then
apply to the group the higher of the two offense levels.”).)
       6
        The money laundering was charged in two counts, one
for each check.




                               11
commission or concealment of the money laundering as
charged in the indictment.

        The government responds that the money laundering
could not have happened but for the fact that Capps was able
to direct the disbursement of funds from Vanguard. This is
perfectly true, but beside the point. It is always the case with
money laundering that the money came from some unlawful
activity. By definition, that is a feature of money laundering.
There is always an underlying crime. In Capps’s case, the only
abuse of a position of trust occurred in the fraud that generated
the money to be laundered. The point of Commentary Note
2(c) is to keep the adjustments applicable to the criminal
activity that generated the money from being applied to the
conceptually distinct money laundering offense. In relying on
the flawed PSR, the District Court failed to heed that
separation, just as the government’s argument invites us to
make the same mistake now.

       The government believes that United States v. Sokolow,

(3d Cir. 1996), supports its position. The
defendant there, the president and CEO of a corporation,
collected money in premiums from insurance clients through a
fraudulent scheme.

He converted some of those
premiums for his personal benefit and laundered them through
a number of bank and brokerage accounts, real property, and
mortgages.

On appeal, we affirmed the
application of the 2-level abuse of trust adjustment because
“[i]t was within [the defendant’s] authority to withdraw funds
from [the corporation] and that authority was necessary for the
commission of the money laundering offenses.”

But Sokolow predates the adoption of U.S.S.G. § 2S1.1’s
Commentary Note 2(c) in 2001, so we had no occasion to




                               12
consider the question we do today. The separation between the
underlying offense and the money laundering was simply not
at issue.

       It is at issue here, though, and the District Court erred
in applying the 2-level abuse of trust adjustment to the money
laundering offense calculation. Given the text of Commentary
Note 2(c), we think the error is plain. 7

       7
          The other circuits that have addressed Commentary
Note 2(c) have all explained that it dictates that any Chapter 3
adjustment must be based on the defendant’s conduct in
relation to the money laundering charge, not the underlying
offense. See United States v. Salgado, 

, 1138
(11th Cir. 2014) ( “[The] application note’s meaning for this
case is straightforward: When the district court calculated [the
defendant’s] offense level under § 2S1.1(a)(1), it could base a
role adjustment on his conduct in the money laundering
conspiracy but not on his conduct in the underlying drug
conspiracy.”); United States v. Rushton, 

, 859 (7th
Cir. 2013) (“[T]he 2-level enhancement for abuse of trust … is
permissible in a money laundering case—but only when the
abuse of trust relates to the money laundering itself rather than
to the underling offense (the offense that generated the money
that the defendant laundered).”); United States v. Keck, 

, 800-01 (10th Cir. 2011) (holding that a defendant’s
conduct in an underlying drug conspiracy cannot be used to
apply Chapter 3 adjustments); United States v. Byors, 

, 226-28 (2d Cir. 2009) (implicitly adopting the same
interpretation); United States v. Anderson, 

, 328
(6th Cir. 2008) (defendant ineligible for offense level reduction
to money laundering guideline calculation based on her
minimal role in the underlying drug conspiracy); United States




                               13
        Without application of the abuse of trust adjustment to
the offense level for the money laundering count, the offense
level (again, before any reduction for acceptance of
responsibility) for both the money laundering conduct and the
mail fraud conduct is 27, not 29 as the District Court
concluded. Thus, the sentencing range is different and, in
keeping with the guidance of the Supreme Court and the record
here, resentencing is in order. See 

(“In most cases a defendant who has shown that the
district court mistakenly deemed applicable an incorrect,
higher Guidelines range has demonstrated a reasonable
probability of a different outcome.”); Rosales-Mireles, 138 S.
Ct. at 1908 (explaining that a “reasonable citizen” would “bear
a rightly diminished view of the judicial process and its
integrity.”) (quotation marks and citation omitted). 8

       B.     The Gross Receipts Adjustment

       In calculating the money laundering offense level, the
District Court also applied the gross receipts adjustment, which
calls for a 2-level adjustment when “the defendant derived


v. Cruzado-Laureano, 

, 49 (1st Cir. 2006)
(“[A]pplication note 2(C) to the money-laundering guideline
provides that Chapter Three adjustments should be determined
with reference to the money-laundering offense and not to the
underlying offense[.]”).
       8
         Capps received a sentence well below the range the
District Court had calculated. How, if at all, a resentencing
affects his final sentence is a matter for the District Court on
remand and our opinion today implies nothing about that.




                              14
more than $1,000,000 in gross receipts from one or more
financial institutions[.]” U.S.S.G. § 2B1.1(b)(17)(A). Gross
receipts “includes all property, real or personal, tangible or
intangible, which is obtained directly or indirectly as a result
of such offense.” U.S.S.G. § 2B1.1 cmt. n.13(B). Capps
advances two arguments in his effort to persuade us that the
District Court erred in making that adjustment. First, he asserts
that, in light of United States v. Stinson, 

(3d Cir.
2013), Vanguard should not be viewed as the source of the
funds. Second, he says that a remand is appropriate because
the District Court made inconsistent statements about the
amount of the gross receipts, making it unclear whether his
gross receipts met the $1 million threshold. He’s wrong on the
first point but right on the second.

                  1. The Source of the Funds

        The sentencing guidelines’ definition of “financial
institution” is broad and expressly includes investment
companies. 9 U.S.S.G. § 2B1.1 cmt. n.1. Vanguard is, as the


       9
          “‘Financial institution’ includes any institution
described in 18 U.S.C. § 20, § 656, § 657, § 1005, § 1006,
§ 1007, or § 1014; any state or foreign bank, trust company,
credit union, insurance company, investment company, mutual
fund, savings (building and loan) association, union or
employee pension fund; any health, medical, or hospital
insurance association; brokers and dealers registered, or
required to be registered, with the Securities and Exchange
Commission; futures commodity merchants and commodity
pool operators registered, or required to be registered, with the
Commodity Futures Trading Commission; and any similar




                               15
indictment recognizes, one of the world’s largest investment
companies. No contention has been made to the contrary. It
thus clearly fits within the definition of a “financial
institution,” for purposes of § 2B1.1 of the guidelines.

        It is also true that Vanguard has a property interest in
the accounts it manages. Although its customers, the account
holders, obviously have property rights in their funds,
Vanguard too has a possessory property interest in them. The
Supreme Court’s decision in Shaw v. United States, 

(2016), explains that both account holders and financial
institutions have property interests in funds held by the
institutions. The context in Shaw was the theft of a depositor’s
funds in a scheme “to defraud a financial institution” in
violation of 18 U.S.C. § 1344(1), and the Court explained that,
even when a bank merely assumes possession of a customer’s
funds, “the bank is like a bailee, say, a garage that stores a
customer’s car. And as bailee, the bank can assert the right to
possess the deposited funds against all the world but for the
bailor (or, say, the bailor’s authorized agent). This right, too,
is a property right.”

(citations omitted). Vanguard
is not a bank, but it holds its account holders’ funds in a fashion
similar enough to a bank to warrant following the reasoning in
Shaw. We thus conclude that, for purposes of § 2B1.1,
Vanguard had a property interest in the funds in its possession.

       Capps points to Stinson to argue that Vanguard’s
interest in the funds was nevertheless insufficient to apply the



entity, whether or not insured by the federal government.”
U.S.S.G. § 2B1.1 cmt. n.1.




                                16
gross receipts adjustment. 10 But his understanding of that case
is misguided. In Stinson, we explained that

       a financial institution is a source of the gross
       receipts when it exercises dominion and control
       over the funds and has unrestrained discretion to
       alienate the funds. A financial institution is not
       the source of all funds that have passed through
       the institution, as might occur during a simple
       wire transfer. Accordingly, mere tangential
       effects on financial institutions will not support
       application of the 

.

        Although that language indicates the need for a
significant degree of control over the funds at issue, we do not
read it to mean that a financial institution’s having less than the
unrestrained right to treat the funds as its own means that
crimes against the institution lie outside the reach of the gross
receipts adjustment. Here, Vanguard possessed the funds. Its
control of them was much more than the tangential control
exercised by a bank handling a wire transfer. See 

. In fact, Vanguard’s dominion and control over the
abandoned funds is what allowed Capps to commit his fraud:
it was through his employment at Vanguard that he was able to
identify and draw checks on abandoned accounts.

       Stinson, rightly understood, asks for nuanced fact-
finding. The defendant in that case had a fraudulent scheme in

       10
          At the time, the provision was U.S.S.G.
§ 2B1.1(b)(15)(A); now, it is U.S.S.G. § 2B1.1(b)(17)(A).




                                17
which he set up a sham fund and used investors’ money for a
variety of personal business 

. As
part of the fraud, the defendant entered into agreements with
two independent financial advisory firms whereby the firms
would refer investors to his sham fund in exchange for referral
fees.

We said that, while some investors exercised
“individual decisions to invest with [the sham fund] on the
advice of their investment advisors at each firm[,] … some of
the victim impact statements suggest that [the independent
financial advisory firms] retained control over the assets of
certain clients and invested in [the sham fund] on their behalf.”

the district court because, while the funds
from individuals who made the decision to invest should not
be considered under the adjustment, “we [we]re unable to
conclude definitively that the enhancement d[id] not apply
because the record [wa]s unclear as to whether [the
independent financial advisory firms] invested any money on
behalf of their clients.”

We therefore recognized
that a firm that invests client funds can exercise sufficient
dominion and control over the funds to justify application of
the gross receipts adjustment, even though the clients also had
control over those funds.

      Capps argues that Vanguard’s control over the funds
here was especially weak because the funds were due to
escheat. He points to the Supreme Court’s statement in
Delaware v. New York that “[f]unds held by a debtor[, here,
Vanguard, the holder of the funds,] become subject to escheat
because the debtor has no interest in the funds[.]” 

, 502 (1993). But, if anything, the fact that the money
Capps stole was due to escheat strengthens the argument that
Vanguard exercised the necessary dominion and control over
them for the gross receipts adjustment to apply. Delaware v.




                               18
New York focused on which sovereign could lay claim to
abandoned property.

the holder of the
property, without an ownership interest in it, does not get to
keep it was a statement about the relative rights of a sovereign
and the holder of the abandoned property. It does not mean
that, as the holder of funds before they escheat, institutions like
Vanguard lack the ability to exercise dominion and control
over them. On the contrary, Vanguard was the only one
exercising dominion and control over the abandoned funds at
issue here, until they escheated. Thus, it was not error – let
alone plain error – for the District Court to conclude that the
funds were derived from Vanguard.

                  2. The $1 Million Threshold

        Commentary Note 13(A) to money laundering
guideline § 2B1.1, states that “[f]or purposes of [the gross
receipts adjustment], the defendant shall be considered to have
derived more than $1,000,000 in gross receipts if the gross
receipts to the defendant individually, rather than to all
participants,     exceeded       $1,000,000.”         U.S.S.G.
§ 2B1.1(b)(17)(A) cmt. n.13(A) (emphasis added). Capps
argues that we should remand to the District Court for
clarification of inconsistent statements about whether he met
the $1 million threshold on an individual basis.

       The government does not try to say that the District
Court’s comments were clear but argues that the Court must
have found that Capps met the threshold because “the loss in
this case (which Capps was ordered to repay to Vanguard) is
$2,137,580.81.” (Answering Br. at 21 n.4.) According to the
government, “[t]here is no question that the ‘gross receipts’ in
this case – not Capps’ personal receipts after dividing the




                                19
proceeds – was far over $1 million.” (Id.) Even if true, that
assertion manages to explicitly avoid the relevant question. It
ignores the requirement from the commentary that the
threshold must be applied in terms of what Capps himself
received, individually.

        The District Court’s statements did not answer the
relevant question either. During sentencing, the Court said,
“Mr. Capps himself admitted just now that he took
approximately one half of [approximately $2 million] or a
million dollars” (App. at 96) (emphasis added), and that Capps
stole “almost over a million dollars, or receiving a million
dollars,” (App. at 97) (emphasis added). Accordingly, we will
remand so that the District Court can clarify whether the gross
receipts that Capps received individually exceeded the million-
dollar threshold.

III.   CONCLUSION

       For the foregoing reasons, we will remand for
resentencing.




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