Case: 15-13066   Date Filed: 09/26/2016   Page: 1 of 5


                                                    [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-13066
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 1:14-cr-00405-TWT-JSA-5



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,


versus

ANDREW SMITH,
a.k.a. Dru,

                                            Defendant - Appellant.

                     ________________________

                           No. 15-14044
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 1:14-cr-00405-TWT-JSA-1

UNITED STATES OF AMERICA,
                                            Plaintiff - Appellee,

versus
                Case: 15-13066    Date Filed: 09/26/2016   Page: 2 of 5




JULIUS C. APPLING,

                                                   Defendant - Appellant.

                             ________________________

                                   No. 15-15047
                               Non-Argument Calendar
                             ________________________

                     D.C. Docket No. 1:14-cr-00405-TWT-JSA-2



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee,
versus

TAJ J. TILLISON,

                                                   Defendant - Appellant.

                             ________________________

                     Appeals from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                 (September 26, 2016)

Before HULL, MARCUS, and EDMONDSON, Circuit Judges.


PER CURIAM:

         Andrew Smith, Julius Appling, and Taj Tillison appeal their sentences of 33

months, 56 months, and 51 months, respectively, imposed after pleading guilty to


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one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344,

1349. Smith, Appling, and Tillison argue that the district court erred by enhancing

their sentences when it incorrectly counted, as victims, persons who voluntarily

provided access to their debit card information, which Smith, Appling, and Tillison

then used to cash fraudulent checks.

      We review a district court’s application and interpretation of the Guidelines

de novo and its factual findings for clear error. United States v. Lee, 

,

892 (11th Cir. 2005).

      Pursuant to § 2B1.1(b)(2) of the Sentencing Guidelines, a two-level

enhancement is applied if the offense involved 10 or more victims; a four-level

enhancement is applied if the offense involved more than 50 but fewer than 250

victims. U.S.S.G. § 2B1.1(b)(2)(A), (B). Thus, the appropriate enhancement

calculation depends on the number of “victims” involved. A “victim” means a

person who sustained an actual loss or a bodily injury as a result of the offense. 

In cases involving “means of identification,” Application Note

4(E) provides that a “victim” also includes “any individual whose means of

identification was used unlawfully or without authority.” 

4(E));

U.S.S.G. App. C. vol. III, Amend. 726.

      “Means of identification” has the meaning given by 18 U.S.C. § 1028(d)(7),

“except that such means of identification shall be of an actual (i.e., not fictitious)


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individual, other than the defendant or a person for whose conduct the defendant is

accountable under §1B1.3 (Relevant Conduct).” U.S.S.G. § 2B1.1, comment. (n.

1). The “means of identification” include “any name or number that may be used,

alone or in conjunction with any other information, to identify a specific

individual, including any . . . unique electronic identification number, address, or

routing code.” 18 U.S.C. § 1028(d)(7)(C).

      We apply traditional statutory construction rules to interpret the language of

Sentencing Guideline enhancements. United States v. Hall, 

, 1321

(11th Cir. 2013). We will first give the language in the guideline its plain and

ordinary meaning. We will consider, not only the bare meaning of the word, but

also its placement and purpose in the guidelines; “[w]e will not rewrite the

guidelines by reading definitions more broadly than their plain language indicates.”

addressed similar language in the aggravated identity theft statute,

which provides that anyone who “knowingly transfers, possesses, or uses, without

lawful authority, a means of identification of another person shall . . . be

sentenced.” See 18 U.S.C. § 1028A(a)(1). We determined that to establish the

“without lawful authority” element of aggravated identity theft, the government

was not required to show that the defendant obtained another person’s

identification documents by stealing. United States v. Hurtado, 

, 607


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(11th Cir. 2007), abrogated by on other grounds by Flores-Figueroa v. United

States, 

, 

, 

(2009). We noted that the

plain language of this phrase indicated “Congress’s intent to prohibit more than

just the defendant’s transfer, possession, or use of identification that was obtained

by theft by that defendant.” 

that “our reading of the plain

language to prohibit the possession or use of another person’s identification that

was obtained by methods other than stealing does not lead to absurd results”

because “[i]t is not absurd to conclude that Congress also intended to deter the

purchase of identification documents by money.” 

n. 6.

      The district court did not err by enhancing Smith’s, Appling’s, and Tillison’s

sentences because it correctly counted the number of victims. The district court

correctly counted, as victims, persons who voluntarily provided access to their

debit card information, which Smith, Appling, and Tillison then used to cash

fraudulent checks: Smith, Appling, and Tillison used the debit card information in

an unlawful way, regardless of whether Smith, Appling, and Tillison had authority

to have the debit card information.

      AFFIRMED.




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