           Case: 13-13746   Date Filed: 10/23/2014   Page: 1 of 5


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                       ________________________

                             No. 13-13746
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:12-cr-60281-RNS-6



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

FLOYD HARPER,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (October 23, 2014)

Before TJOFLAT, WILSON and JORDAN, Circuit Judges.

PER CURIAM:
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      Floyd Harper appeals the district court’s application of a two-level

enhancement pursuant to U.S.S.G. § 2B1.1(b)(11)(B) in calculating his total 42-

month sentence, imposed below the advisory guideline range, after he pleaded

guilty to one count of conspiracy to commit access device fraud, in violation of 18

U.S.C. § 1028(b)(2) (Count 1); one count of aggravated identity theft, in violation

of 18 U.S.C. § 1028A(a)(1) (Count 13); and one count of theft of public money, in

violation of 18 U.S.C. § 641 (Count 15). Harper argues on appeal that the district

court plainly erred in applying the § 2B1.1(b)(11)(B) enhancement because

Application Note 2 to U.S.S.G. § 2B1.6 prohibits the application of specific

offense characteristics for the transfer, possession, or use of a means of

identification to the sentence for an underlying offense when the defendant has

also been sentenced for aggravated identity theft. Harper asserts that the

underlying offense in his case involved trafficking, but not production, of

unauthorized access devices, and as such application the § 2B1.1(b)(11)(B)

enhancement to his conduct would constitute improper double counting.

      We review objections raised for the first time on appeal under a plain error

standard of review. United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006)

(per curiam). Under the plain error standard, the defendant must demonstrate four

factors: (1) there was an error, (2) the error is plain, (3) the error affects substantial

rights, and, if the foregoing three factors are met, (4) the error seriously affects the


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fairness, integrity, or public reputation of judicial proceedings. United States v.

Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993).

      An error is plain if it is clear from either the plain meaning of a statute or

constitutional provision, or from a holding of the Supreme Court or this court.

United States v. Pantle, 637 F.3d 1172, 1174–75 (11th Cir. 2011). An error affects

substantial rights when it is prejudicial to the defendant, meaning the defendant

must show that the error “affected the outcome of the district court proceedings.”

Olano, 507 U.S. at 734, 113 S. Ct. at 1778. With regard to sentencing, this means

that the defendant must show that there is a reasonable probability that the district

court would have imposed a shorter sentence absent the challenged enhancement.

Pantle, 637 F.3d at 1177. Finally, an error seriously affects the fairness, integrity,

and public reputation of judicial proceedings if failure to correct the error would

result in a miscarriage of justice. Olano, 507 U.S. at 736, 113 S. Ct. at 1779.

      Section 2B1.1(b)(11)(B) provides a two-level enhancement for the

production or trafficking of any unauthorized access device or counterfeit access

device. U.S.S.G. § 2B1.1(b)(11)(B). For purposes of the enhancement, the term

“production” includes manufacture, design, alteration, authentication, duplication,

or assembly. Id. § 2B1.1 cmt. n.10(A). The Guidelines provide that specific

offense characteristics are based on a defendant’s relevant conduct. See id.

§ 1B1.3(a). Relevant conduct includes not only all acts and omissions committed


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by the defendant himself, but also all reasonably foreseeable acts and omissions of

others in furtherance of jointly undertaken criminal activity. Id. § 1B1.3(a)(1)(A),

(B). To determine the defendant’s accountability for the conduct of others, the

court must first determine the scope of the criminal activity the defendant agreed to

undertake. Id. § 1B1.3 cmt. n.2; United States v. Hunter, 323 F.3d 1314, 1319

(11th Cir. 2003). The court must then determine whether the conduct of others

was in furtherance of, and reasonably foreseeable in connection with, the criminal

activity jointly undertaken by the defendant. Id. § 1B1.3 cmt. n.2.

      Application Note 2 to § 2B1.6 instructs that where a sentence for aggravated

identity theft is imposed in conjunction with a sentence for an underlying offense,

the court should not apply any specific offense characteristic for the transfer,

possession, or use of a means of identification when determining the sentence for

the underlying offense. Id. § 2B1.6 cmt. n.2. In other words, to the extent that a

sentence under § 2B1.6 accounts for the transfer, possession, or use of a means of

identification by the defendant, an enhancement based on that conduct should not

be applied for the underlying offense. See id. We have held that conspiracy to

commit access device fraud in violation of 18 U.S.C. § 1029(b)(2) is a predicate

offense for aggravated identity theft in violation of 18 U.S.C. § 1028A. United

States v. Charles, 757 F.3d 1222, 1225 (11th Cir. 2014).




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      In reconciling the applicability of § 2B1.1(b)(11)(B) with Application Note

2 to § 2B1.6, we have held that a defendant sentenced under § 2B1.6 for violating

18 U.S.C. § 1028A cannot be subjected to the two-level enhancement under

§ 2B1.1(b)(11)(B) for trafficking of an unauthorized access device. Id. at 1226–

27. Where the enhancement is based on the production of unauthorized access

devices, however, Application Note 2 to § 2B1.6 does not prohibit imposition of

the § 2B1.1(b)(11)(B) enhancement. Id. at 1227 n.3.

       The undisputed facts in Harper’s presentence investigation report

demonstrate that Harper conspired with others to file fraudulent tax returns using

stolen identities and created debit accounts into which the tax refunds could be

deposited. The fact that at least one of the debit cards was in Harper’s name

demonstrates that Harper was involved in the production of the cards or that

someone involved in the conspiracy produced the cards in furtherance of the

jointly undertaken criminal activity. See id. § 1B1.3 cmt. n.2. It would have been

improper under § 2B1.6 for the district court to impose the § 2B1.1(b)(11)(B)

enhancement on the trafficking ground. However, the district court did not plainly

err in applying the § 2B1.1(b)(11)(B) enhancement in this case because the record

supports the finding that Harper’s offense involved the production of unauthorized

access devices.

      AFFIRMED.


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