     Case: 15-10231   Document: 00513620030        Page: 1   Date Filed: 08/02/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                    No. 15-10231                          FILED
                                                                     August 2, 2016

UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
             Plaintiff - Appellee

v.

ANTHONY MINOR,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Defendant-Appellant Anthony Minor appeals his conviction and
sentence on multiple counts of bank fraud and related offenses. We affirm.


                                         I.
      An employee of Fannie Mae named Katrina Thomas misappropriated
personal identification information from approximately one thousand
individuals. Thomas gave this identification information to Minor, who used
the data to access – and steal money from – those individuals’ bank accounts.
Specifically, Minor would contact the bank, pretend to be an individual whose
     Case: 15-10231       Document: 00513620030         Page: 2    Date Filed: 08/02/2016



                                      No. 15-10231
identity he had misappropriated, and then transfer money from that
individual’s account into a separate account which Minor controlled.
       A jury found Minor guilty of bank fraud and other related offenses. 1 The
district court imposed a below-Guidelines sentence of 192 months’
imprisonment. Minor now appeals.


                                             II.
       Minor first claims that the district court should have held a Franks 2
hearing to determine whether law enforcement officials improperly obtained a
search warrant for his vehicle. In Franks, the Supreme Court held that
       where the defendant makes a substantial preliminary showing
       that a false statement knowingly and intentionally, or with
       reckless disregard for the truth, was included by the affiant in the
       warrant affidavit, and if the allegedly false statement is necessary
       to the finding of probable cause, the Fourth Amendment requires
       that a hearing be held at the defendant’s request. In the event that
       at that hearing the allegation of perjury or reckless disregard is
       established by the defendant by a preponderance of the evidence,
       and, with the affidavit’s false material set to one side, the
       affidavit’s remaining content is insufficient to establish probable
       cause, the search warrant must be voided and the fruits of the
       search excluded to the same extent as if probable cause was
       lacking on the face of the affidavit. 3

Minor claims that the agent assigned to his case, Albert Moore, may have
provided false information to the magistrate judge when obtaining the search
warrant for Minor’s vehicle. Agent Moore averred in the warrant affidavit that
Will Crain, the director of security at a hotel frequented by Minor, reported


       1 Specifically, the jury found Minor guilty of (1) bank fraud; (2) aiding and abetting
bank fraud; (3) conspiracy to commit bank fraud; (4) using or trafficking in an unauthorized
access device; (5) aggravated identity theft; and (6) aiding and abetting aggravated identity
theft.
       2 Franks v. Delaware, 438 U.S. 154 (1978).
       3 Id. at 155-56.

                                             2
     Case: 15-10231        Document: 00513620030          Page: 3     Date Filed: 08/02/2016



                                        No. 15-10231
that he had seen Minor carrying merchandise between his hotel room and his
vehicle on multiple occasions. The magistrate judge accepted Agent Moore’s
representation and issued the search warrant, which ultimately revealed
evidence of Minor’s crimes.
       According to Minor, however, Crain testified at trial that he did not in
fact see Minor carrying merchandise between his hotel room and his vehicle.
Minor therefore requests a hearing to determine whether Agent Moore’s
warrant affidavit contained false information.
       To obtain a Franks hearing, Minor “needed to make a ‘substantial
preliminary showing’ that the affiant[’s] statements were deliberately false or
made with reckless disregard for the truth.” 4 Minor concedes that Agent Moore
“d[id] not intentionally insert false information into the affidavit . . . or act with
reckless disregard for the truth.” Because Minor failed to make the requisite
“substantial preliminary showing,” he is not entitled to a Franks hearing. 5
       Minor nevertheless requests that we “carve” an “exception” to Franks’s
requirement that the defendant show that the affiant’s statements were
deliberately false or made with reckless disregard for the truth. He asks us to
hold that, “in a case where a law enforcement affiant is relying upon
information or attestations from other law enforcement personnel,” 6 “the




       4  United States v. Thomas, 627 F.3d 146, 159 (5th Cir. 2010) (quoting United States v.
Sibley, 448 F.3d 754, 758 (5th Cir. 2006)).
        5 See id. (quoting Sibley, 448 F.3d at 758).
        6 Minor recognizes that Crain is a private citizen, not a law enforcement official. Minor

nonetheless maintains that a district attorney investigator named Grant Jack may have
provided Agent Moore with false information regarding whether Crain saw Minor
transferring merchandise to and from his vehicle. He desires a hearing to determine whether
Investigator Jack conveyed false information to Agent Moore.
                                               3
     Case: 15-10231        Document: 00513620030           Page: 4      Date Filed: 08/02/2016



                                         No. 15-10231
challenger should not be required to meet the intentional or reckless
requirement to proceed to a Franks hearing.” 7
       Minor has not cited any authority recognizing his proposed exception to
Franks. We therefore decline Minor’s invitation to create a new exception to
well-established Supreme Court precedent.


                                               III.
       The district court found that Minor committed an offense with over 250
victims and therefore increased Minor’s offense level by six pursuant to
U.S.S.G. § 2B1.1(b)(2)(C) (2014). 8 Minor challenges this six-level enhancement
on appeal. We review the district court’s interpretation and application of the
U.S. Sentencing Guidelines de novo and its factual findings for clear error. 9
       U.S.S.G. § 2B1.1 (2014) provides the applicable framework for
calculating Minor’s offense level. If the defendant’s offense “involved 250 or
more victims,” § 2B1.1(b)(2)(C) requires the court to increase the defendant’s
offense level “by 6 levels.” 10 If, by contrast, the defendant’s offense only



       7  The government argues that Minor did not preserve this argument, and that we
should therefore review this challenge for plain error. We need not decide the applicable
standard of review because Minor’s argument is meritless under any standard.
        8 See U.S.S.G. § 2B1.1(b)(2)(C) (2014) (“If the offense . . . involved 250 or more victims,

increase by 6 levels.”).
        This case is governed by the 2014 Sentencing Guidelines. We note that the Sentencing
Commission revised § 2B1.1(b)(2)(C) in 2015. See U.S.S.G. § 2B1.1(b)(2)(C) (2015) (“If the
offense . . . resulted in substantial financial hardship to 25 or more victims, increase by 6
levels.” (emphasis added)).
        Minor argues that we should remand his case for resentencing in light of this revision.
However, as Minor acknowledges, our published decision in United States v. Garcia-Carrillo,
749 F.3d 376, 379-80 (5th Cir. 2014), cert. denied, 135 S. Ct. 676 (2014) forecloses that
argument.
        9 United States v. Conner, 537 F.3d 480, 489 (5th Cir. 2008) (citing United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)).
        We reject the government’s argument that we should review this challenge under the
plain error standard.
        10 U.S.S.G. § 2B1.1(b)(2)(C) (2014).

                                                4
     Case: 15-10231          Document: 00513620030      Page: 5   Date Filed: 08/02/2016



                                         No. 15-10231
“involved 50 or more victims,” the court should instead only “increase by 4
levels.” 11
       In cases involving identification fraud, the term “victim” includes, inter
alia, “any individual whose means of identification was used unlawfully or
without authority.” 12 Importantly, however, the mere “acquisition and
possession of a means of identification do not qualify as using that means of
identification” for the purposes of § 2B1.1(b)(2). 13 A defendant only “uses”
another person’s means of identification within the meaning of § 2B1.1(b)(2) if
the defendant “actively employ[s]” that person’s identification in the
furtherance of some “criminal goal.” 14
       We agree with the district court that Minor and his co-defendant actively
employed the means of identification of over 250 victims in furtherance of their
bank fraud scheme. Minor and his accomplice used the identification
information of 361 bank customers with the object of unlawfully accessing
those customers’ bank accounts without their consent. Minor’s use of this
identification information went beyond mere “acquisition and possession of a
means         of   identification;” 15   rather,   Minor   “actively   employed”       that
identification information to further his criminal scheme. 16 Thus, the 361 bank
customers were victims of Minor’s offense.
       Minor rejoins that, even though he attempted to use the identification
information of 361 customers to access their bank accounts, he only
successfully obtained access to approximately 150 accounts. He argues that an




       11 Id. § 2B1.1(b)(2)(B) (2014).
       12 United States v. Cardenas, 598 F. App’x 264, 267 (5th Cir. 2015) (quoting U.S.S.G.
§ 2B1.1 cmt. n.4(E)).
       13 Id. at 268.
       14 Id. at 269.
       15 See id. at 268.
       16 See id. at 269.

                                               5
    Case: 15-10231       Document: 00513620030       Page: 6   Date Filed: 08/02/2016



                                      No. 15-10231
unsuccessful attempt to use a person’s means of identification does not render
that person a “victim” within the meaning of § 2B1.1(b)(2). He therefore posits
that his crime only had 150 victims.
      The Eleventh Circuit rejected a materially indistinguishable argument
in United States v. Adeife. 17 The defendant in Adeife “admitted that he filed
112 fraudulent Social Security retirement benefit claims using the identities
of real people without their authorization,” but claimed that he did not qualify
for a 50-victim enhancement because he “was only successful in receiving
payment on forty-five of those claims.” 18 The Eleventh Circuit held that “the
fact that [Adeife] did not receive payment on all 112 claims is of no moment
because the mere unlawful use of a means of identification or its use without
authorization is sufficient to convert an individual into a victim for
enhancement purposes.” 19 The court therefore concluded that “Adeife’s claim
that these individuals were not victims within the meaning of [§ 2B1.1(b)(2)],
simply because he was unsuccessful in receiving payments on every claim, is
without merit.” 20 The court accordingly ruled that “the district court’s finding
of fact that the offense involved 112 victims was not clearly erroneous, and,
therefore, its application of the four-level enhancement was appropriate.” 21
      We find Adeife both persuasive and analogous to the facts of this case.
Even though Minor did not successfully access or withdraw funds from all 361
victims’ accounts, he nonetheless “actively employed” their identifying
information when he attempted to access their accounts. In other words, Minor
“used” a stolen identity every time he called a bank posing as another
individual in an attempt to breach that individual’s account, even if the bank


      17 606 F. App’x 580 (11th Cir. 2015).
      18 Id. at 581.
      19 Id.
      20 Id.
      21 Id.

                                              6
     Case: 15-10231       Document: 00513620030           Page: 7    Date Filed: 08/02/2016



                                       No. 15-10231
ultimately did not grant Minor access to the account. Therefore, the district
court did not err by imposing a six-level enhancement pursuant to §
2B1.1(b)(2)(C).


                                              IV.
       Minor next argues that the district court erred when calculating the
financial loss that Minor intended to result from his fraudulent scheme. The
district    court    found     that    Minor        and   his   accomplice       successfully
misappropriated a total of $48,400 from seventeen victims’ bank accounts. By
dividing $48,400 by seventeen, the district court determined that Minor’s
average intended loss was $2,847 per victim. The court then found that Minor
and his co-defendant possessed the personal identifying information of 1,107
people, and that Minor intended to attempt to breach all 1,107 of their bank
accounts. The court therefore multiplied $2,847 by 1,107 to reach a total
intended loss of $3,151,629. Because Minor’s total intended loss was between
$2,500,000 and $7,000,000, the district court enhanced Minor’s sentence by
eighteen levels pursuant to U.S.S.G. § 2B1.1(b)(1)(J) (2014). 22
       Minor challenges the district court’s methodology for calculating the
intended loss in this case. He argues that the court should have instead divided
the banks’ actual reported loss, $42,700, by 150, which is the number of
accounts Minor successfully breached, to reach an average intended loss of
$284.66 per victim. Had the district court multiplied that figure by 1,107 (i.e.,
the number of accounts Minor intended to breach), it would have calculated a




       22The Sentencing Commission revised the loss tables set forth in § 2B1.1(b)(1) in 2015
to account for inflation. However, this case is governed by the loss tables codified in the 2014
Sentencing Guidelines.
                                               7
     Case: 15-10231       Document: 00513620030         Page: 8    Date Filed: 08/02/2016



                                      No. 15-10231
total intended loss of $315,118.62 and enhanced Minor’s sentence by only
twelve levels instead of eighteen. 23
       When reviewing a district court’s loss calculations under the Sentencing
Guidelines, we review the district court’s factual findings for clear error 24 and
the court’s calculation methodology de novo. 25 “The district court receives wide
latitude to determine the amount of loss and should make a reasonable
estimate based on available information.” 26 We “need not determine whether
the district court’s estimate was the most reasonable;” 27 rather, we need only
determine whether “[t]he method used to calculate the amount of loss . . .
bear[s] some reasonable relation to the actual or intended harm of the
offense.” 28
       U.S.S.G. § 2B1.1(b)(1), which governs sentencing in fraud cases, “creates
a sliding scale that increases the defendant’s base offense level by zero to thirty
points depending on the amount of loss.” 29 “The applicable loss is generally the
greater of actual loss – which includes only reasonably foreseeable harm
resulting from the fraud – and intended loss – which includes the harm
intended to result from the offense.” 30 Minor’s intended loss exceeds the actual
loss in this case, 31 so the intended loss value determines which sentencing
enhancement is applicable here.



       23 See U.S.S.G. § 2B1.1(b)(1)(G) (2014) (mandating a twelve-level enhancement for
intended losses between $200,000 and $400,000).
       24 United States v. Hebron, 684 F.3d 554, 560 (5th Cir. 2012) (citing United States v.

Sanders, 343 F.3d 511, 520 (5th Cir. 2003)).
       25 Id. (citing United States v. Harris, 597 F.3d 242, 250-51 (5th Cir. 2010)).
       26 United States v. Umawa Oke Imo, 739 F.3d 226, 240 (5th Cir. 2014) (quoting United

States v. Jones, 475 F.3d 701, 705 (5th Cir. 2007)).
       27 Hebron, 684 F.3d at 564 (emphasis added).
       28 United States v. John, 597 F.3d 263, 279 (5th Cir. 2010) (quoting United States v.

Krenning, 93 F.3d 1257, 1269 (5th Cir. 1996)).
       29 Id.
       30 Hebron, 684 F.3d at 560 (citing U.S.S.G. § 2B1.1 cmt. 3(A)).
       31 This is true no matter which party’s calculation methodology we adopt.

                                             8
    Case: 15-10231       Document: 00513620030           Page: 9     Date Filed: 08/02/2016



                                      No. 15-10231
      We conclude that it was reasonable for the district court to calculate
intended loss by determining the average actual loss of each account holder
whose account Minor successfully breached and then multiplying that average
by the total number of accounts Minor intended to access.
      Indeed, we have approved similar loss calculations in other fraud cases.
For instance, in United States v. Chappell, 32 the defendants challenged the
district court’s calculation of intended loss arising from the defendants’
fraudulent scheme of cashing phony checks using counterfeit identification
cards. 33 The district court calculated the amount of loss “by adding together
the values of . . . three checks charged in the indictment, a check cashed by the
defendants in Frankfort, Kentucky, . . . five checks found by police in the
getaway car, and 16 checks reflected on [the defendants’] typewriter ribbon, for
a total of $4,296.29.” 34 The court “then assessed the value of . . . 51 blank checks
found in the [defendants’] car and hotel room at $13,617 by assigning to each
the average value of the checks actually recovered. The district court thus
concluded that the defendants intended to inflict a total loss of $20,838.75.” 35
      We concluded that the district court did not clearly err “by including the
51 blank checks found in the car and hotel room, or by assigning to them the
average value of the other checks actually produced and negotiated.” 36 We
therefore concluded that the court’s calculation constituted “a reasonable
estimate of the loss.” 37
      Here, too, the district court did not clearly err by determining the
average actual loss of each account holder whose account Minor successfully



      32 6 F.3d 1095 (5th Cir. 1993).
      33 Id. at 1097, 1101.
      34 Id. at 1101.
      35 Id.
      36 Id. (citing United States v. Sowels, 998 F.2d 249 (5th Cir. 1993)).
      37 Id. (quoting U.S.S.G. § 2F1.1, cmt. 8).

                                              9
    Case: 15-10231       Document: 00513620030         Page: 10     Date Filed: 08/02/2016



                                      No. 15-10231
breached and then multiplying that average by the total number of accounts
Minor intended to access. Because the district court’s calculations are not
unreasonable, the court did not err by applying an eighteen-level enhancement
pursuant to § 2B1.1(b)(1)(J). 38


                                             V.
       Finally, Minor asks us to remand for resentencing because his sentence
is out of step with the 2015 Sentencing Guidelines. However, Minor concedes
that our published opinion in United States v. Garcia-Carrillo 39 forecloses this
argument. We therefore affirm Minor’s conviction and sentence.
       AFFIRMED.




       38We likewise reject Minor’s argument that the district court failed to formulate an
estimate “based on available information” as required by U.S.S.G. § 2B1.1 cmt. n.3(C) (2014).
      39 749 F.3d 376, 379-80 (5th Cir. 2014).

                                             10
