   Case: 13-41177   Document: 00512926245    Page: 1   Date Filed: 02/04/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT



                              No. 13-41177
                                                              United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
                                                              February 4, 2015
UNITED STATES OF AMERICA,
                                                                Lyle W. Cayce
                                                                     Clerk
                                       Plaintiff−Appellee,

versus

JOSE CARDENAS,

                                       Defendant−Appellant.


                        ***************


                              No. 13-41191


UNITED STATES OF AMERICA,

                                       Plaintiff−Appellee,

versus

PEDRO CARRILLO-TORRES,

                                       Defendant−Appellant.


              Appeals from the United States District Court
                   for the Southern District of Texas
                           No. 7:13-CR-164-1
                           No. 7:13-CR-164-2
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                                      No. 13-41177
                                      No. 13-41191
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Jose Cardenas and Pedro Carrillo-Torres pleaded guilty of conspiring to
commit fraud with counterfeit access devices and were sentenced to 108
months’ imprisonment. Each asserts an error in calculating the term of impris-
onment recommended by the United States Sentencing Guidelines (the “Guide-
lines”).   Cardenas challenges an eighteen-level upward adjustment for
expected losses between $2.5 million and $7 million; Carrillo-Torres contests a
six-level upward adjustment for an offense involving more than 250 victims.
Because the district court correctly determined the intended loss, we affirm
Cardenas’s sentence. Because the court erred in interpreting the provision for
calculating the number of victims and the government has not demonstrated
that the error was harmless, we vacate Carrillo-Torres’s sentence and remand
for resentencing.


                                             I.
       Inter-National Bank (“INB”) contacted the McAllen Police Department
about a series of suspicious transactions at ATMs. INB gave the police a card
that one ATM had placed into its rejection slot: a plain white card with a per-
sonal identification number (“PIN”) written on it, a common tool for ATM
fraud. INB eventually provided police with a record of more than $250,000 in
suspicious withdrawals. The police obtained an ATM surveillance video show-
ing the scheme in action. Carrillo-Torres and a confederate would drive up to



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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an ATM multiple times to withdraw cash using white plastic cards.
      The police were notified that a suspect, Carrillo-Torres, had been
detained at an INB branch; they transferred him to the police station, where
he waived his Miranda rights and gave a statement. His car contained a room
key from a local motel, cash, deposit slips, and white plastic cards.
      The police went to the motel, where the front-desk employee identified
the room to which the key belonged and gave them a copy of the tenant’s identi-
fication; it was the ID card for the passenger in Carrillo-Torres’s vehicle. When
the police went to the room, Cardenas answered the door. They saw, in plain
view, bags of currency and materials used to counterfeit ATM cards. The police
detained Cardenas, who was advised of his rights and made a statement admit-
ting to participation in the scheme.
      The police ultimately recovered evidence of $458,276.34 in actual losses,
which was determined by adding together the cash found in the vehicle and
hotel room and deposit slips, wire receipts, and gift cards. Additionally, they
found a flash drive in the hotel that contained 7,197 legitimate bank-account
numbers that had not yet been accessed as part of the scheme.


                                          II.
      Cardenas and Carrillo-Torres were charged with aiding and abetting the
possession of thirty counterfeit access devices in violation of 18 U.S.C.
§ 1029(a)(3). Both pleaded guilty in exchange for the government’s agreement
to recommend a two-level reduction for acceptance of responsibility. 1
      Each was assigned a base offense level of six.              U.S. SENTENCING
GUIDELINES MANUAL § 2B1.1(a)(2) (2012) (“U.S.S.G.”). The court assessed two


      1 The government ultimately recommended a three-level reduction for acceptance of
responsibility, which the district court granted.
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upward adjustments that are at issue in this appeal. 2
      The presentence report (“PSR”) recommended an eighteen-level upward
adjustment based on an intended loss between $2.5 million and $7 million,
U.S.S.G. § 2B1.1(b)(1)(J), reaching that figure by adding together the docu-
mented losses from the scheme and $500 for each of the 7,197 unused account
numbers on the flash drive, U.S.S.G. § 2B1.1 cmt. n.3(F)(i). The court accepted
the sum of $4,056,776.34 for intended losses and applied the adjustment.
      Second, the PSR recommended a six-level upward adjustment for offense
conduct involving more than 250 victims, U.S.S.G. § 2B1.1(b)(2)(C), counting
as victims the holders of the 7,197 account numbers found on the flash drive.
The court applied the adjustment, concluding that the defendants had “used”
the account numbers as required for the account-holders to be victims.
U.S.S.G. § 2B1.1 cmt. n.4(E).
      Each defendant had an offense level of 31 and a criminal history category
of I, yielding a guideline range of 108–135 months, with a statutory maximum
of 120 months. The court imposed 108 months with this explanation:
    In doing so, . . . I’ve considered closely the Guidelines here and the Court
    believes that its rulings are correct on the Guidelines. But even if the
    Court isn’t correct, the Court believes it is necessary to sentence at this
    very high range even as far as the statutory maximum here because of
    all of those things that I have touched on.
      Cardenas challenges the application of the $500 minimum intended loss
to the unused numbers on the flash drive. Carrillo-Torres questions the inclu-
sion, as victims, of those persons whose accounts were not accessed. We review
de novo these questions about the interpretation and application of the




      2 Uncontested on appeal are the upward adjustments for using “sophisticated means,”
U.S.S.G. § 2B1.1(b)(10)(C) & comment. (n.8), and for possessing and using device-making
equipment, id. § 2B1.1(b)(1), (11).
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Guidelines. United States v. Jones, 475 F.3d 701, 705 (5th Cir. 2007).


                                       III.
      The Guidelines instruct the district court to calculate loss as “the greater
of actual loss or intended loss.” § 2B1.1 cmt. n.3(A). The court found that the
intended loss was just over $4 million, reached by adding together the realized
losses and $500 for each account number found on the flash drive.                In
counterfeit-access-device cases, “loss includes any unauthorized charges made
with the counterfeit access device or unauthorized access device and shall be
not less than $500.” U.S.S.G. § 2B1.1 cmt. n.3(F)(i). The court took this to
mean that its intended-loss calculation should include $500 for every access
device, of which there were over 7,000 on the flash drive.
      Cardenas challenges that $500-per-account number, maintaining that
the relevant commentary requires that the defendant actually used the device:
   Stolen or Counterfeit Credit Cards and Access Devices; Purloined Num-
   bers and Codes.—In a case involving any counterfeit access device or
   unauthorized access device, loss includes any unauthorized charges
   made with the counterfeit access device or unauthorized access device
   and shall be not less than $500 per access device.
U.S.S.G. § 2B1.1 cmt. n.3(F)(i).
      Cardenas’s argument fails because nothing in the text requires the
access devices to be actually used. The commentary ascribes two character-
istics to “loss”: It includes any unauthorized charges made with the device,
and it “shall be not less than $500 per access device.” The commentary does
not require unauthorized charges just because that phrase appears first.
Instead, the case can involve “any counterfeit access device or unauthorized
access device.” The express language of the provision makes plain there is no
requirement that the access device was used.
      The next sentence in the same commentary provides further support
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that the $500 minimum sweeps in both the used and the merely possessed. It
distinguishes between use and mere possession in setting the minimum for an
unauthorized access device that is a particular means of telecommunications
access:
    However, if the unauthorized access device is a means of telecommuni-
    cations access that identifies a specific telecommunications instrument
    or telecommunications account . . . and that means was only possessed,
    and not used, during the commission of the offense, loss shall be not
    less than $100 per unused means.
U.S.S.G. § 2B1.1 cmt. n.3(F)(i).
       This language makes two things plain. First, the authors of the Guide-
lines knew how to limit the application of these provisions to the use of access
devices. And second, the general $500 provision applies to devices used and
unused, because this commentary provision treats an unused means of tele-
communications access as already within the category of devices to which this
section applies. If “a case involving any counterfeit access device or unauthor-
ized access device” included only situations involving devices used to make
unauthorized charges, the provision would not include further explanation for
a case in which “the unauthorized access device” was an unused means of tele-
communications access; such a device would be outside the ambit of the
provision.
       The other circuits that have faced this question have reached the same
conclusion. 3 Cardenas’s focus on the meaning of “use” is misplaced; the $500
minimum applies even to unused devices.
       Cardenas asks us to review the sufficiency of the evidence to support this


       3See United States v. Gilmore, 431 F. App’x 428, 430−31 (6th Cir. 2011); United States
v. Camper, 337 F. App’x 631, 632–33 (9th Cir. 2009) (mem.); United States v. Mendez,
Nos. 14-4059, 14-4093, 14-4094, 2014 WL 5786649, at *2 (4th Cir. Nov. 7, 2014) (per curiam)
(unpublished).
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adjustment, but his brief is devoted entirely to the question of interpreting this
provision. Because the district court correctly interpreted the Guidelines, and
Cardenas has provided no legal or factual basis for concluding that there was
insufficient evidence to apply this intended-loss adjustment, there is no error
in his sentence.


                                              IV.
      The district court assessed a six-level increase because it found that
Carrillo-Torres’s offense involved more than 250 victims. In crimes involving
“means of identification,” the term “victim” includes “any individual whose
means of identification was used unlawfully or without authority.” U.S.S.G.
§ 2B1.1 cmt. n.4(E). The court concluded that the persons whose 7,197 account
numbers were on the flash drive counted as victims. 4
      In response to an objection regarding whether these means had been
used, the court noted that the defendants “had 7,000-something access
devices . . . without authority,” “these access devices were obtained without
authority,” and the defendants had “transferred them over to the flash drive.”
The sentence therefore appears to be based on the defendants’ unlawfully
obtaining and possessing these access devices and transferring them to the
flash drive on which the numbers were found. Carrillo-Torres asserts that for
that adjustment to apply, the Guidelines require more than acquisition or pos-
session. The government disputes this interpretation and also claims that any
error was harmless.




      4   The inclusion of account numbers as means of identification is not in dispute.
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                                              A.
       There is no binding Fifth Circuit precedent interpreting this relatively
new provision of the Guidelines. Ordinary methods of textual interpretation 5
and the conclusions of our sister circuits convince us that the acquisition and
possession of a means of identification do not qualify as using that means of
identification.
       The Guidelines do not define what is encompassed by “use.” We normally
construe a word “not defined by statute . . . in accord with its ordinary or
natural meaning.” Smith v. United States, 508 U.S. 223, 228 (1993) (citation
omitted). “Use” is generally understood to require more than acquisition or
possession. For example, in Bailey v. United States, 516 U.S. 137, 144–46
(1995), the Court recognized that “use” in a statute includes “active employ-
ment” or “to carry out a purpose or action by means of” but does not encompass
mere possession. Even possession with the intent to use, or taking steps that
would allow use later, is not active employment. See id. at 147. 6 Although
Bailey interpreted “use” as it appeared in a particular statutory scheme and
did not define the word for all statutes, see United States v. Castillo, 77 F.3d
1480, 1499 n.34 (5th Cir. 1996), its explanation of the common meaning is
persuasive.
       In addition to its common meaning, the usage of the word in other parts
of the Guidelines lends support to the narrower definition. We are informed in
this analysis by two interpretive propositions. First, “[a] term appearing in



       5 “It is well established that our interpretation of the Sentencing Guidelines is subject
to the ordinary rules of statutory construction.” United States v. Carbajal, 290 F.3d 277, 283
(5th Cir. 2002) (citation omitted).
       6 For this reason, transferring the data to a flash drive did not count as using the
means of identification. Transferring the account numbers to a different storage medium did
not actively employ them for the criminal purpose.
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several places in a statutory text is generally read the same way each time it
appears.” Ratzlaf v. United States, 510 U.S. 135, 143 (1994) (citation omitted).
And second, “we construe statutes, where possible, so as to avoid rendering
superfluous any parts thereof.” Astoria Fed. Sav. & Loan Ass’n v. Solimino,
501 U.S. 104, 112 (1991) (citation omitted).
       Other guideline provisions distinguish between possession and use, indi-
cating that the two terms have distinct meanings in that scheme. 7 Reading
“use” to include mere possession for this provision would require either a dif-
ferent definition without a strong contextual justification or reading those
other uses to include surplus terms. For example, interpreting “use” to include
possession would be incompatible with other provisions that invoke, as signif-
icant, the difference between use and possession, such as § 2B2.1’s commentary
background, which references “[w]eapon possession, but not use.” And it would
render some language surplusage, such as § 2K1.5(c)(1)’s reference to a defen-
dant who “used or possessed [a] weapon or material.” The Guidelines plainly
treat mere possession as insufficient to constitute use.
       “Use” likewise requires more than merely obtaining the means of identi-
fication. A person who obtains an item for later use in a crime is not yet
actively employing it for the criminal goal; obtaining an item is usually
antecedent to using it. The Supreme Court has recognized this distinction.


       7 See, e.g., U.S.S.G. §§ 2A2.3(a)(1) (setting base offense level for assault at 7 “if a dan-
gerous weapon . . . was possessed and its use was threatened”); 2B1.1(b)(11) (two-level
increase for “the possession or use of any (i) device-making equipment, or (ii) authentication
feature”); 2B1.6 cmt. n.2 (specifying that a sentence imposed for aggravated identify theft
should not have specific offense characteristics applied “for the transfer, possession, or use of
a means of identification”); 2B2.1 cmt. background (“Weapon possession, but not use, is a
specific offense characteristic because use of a weapon (including to threaten) ordinarily
would make the offense robbery.”); 2K1.3(b)(3) (four-level increase if defendant “used or pos-
sessed any explosive material in connection with another felony offense”); 2K1.5(c)(1) (“If the
defendant used or possessed the weapon or material in committing or attempting another
offense, apply the guideline for such other offense . . . .”).
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For example, in Watson v. United States, 552 U.S. 74 (2007), the Court held
that a defendant had not “used” a gun in relation to a drug crime where he had
traded drugs to an informant in exchange for the gun. The common meaning
of “use” does not encompass receiving something in a transaction; “[a] seller
does not ‘use’ a buyer’s consideration.” Id. at 79 (citation omitted).
       Additionally, as with possession, the Guidelines distinguish between
obtaining a thing and using it. 8 It is not by happenstance that the Guidelines
distinguish among use, possession, and other actions in these adjustments; the
criminal provisions covering unauthorized access devices (under which
Carrillo-Torres was convicted) and identity theft (which provisions govern the
criminal use of means of identification) likewise draw these distinctions. See
18 U.S.C. §§ 1029 (access devices), 1028A (aggravated identity theft).
       Requiring some active employment of the means of identification is con-
sistent with the approaches taken by other courts of appeals. The Seventh,
Eighth, and Eleventh Circuits have concluded that “use” in this application
note requires more than possession or acquisition, 9 and no circuit has held to
the contrary. This interpretation also matches our approach in United States
v. Onenese, 542 F. App’x 427, 429–30 (5th Cir. 2013) (per curiam).
       For the 7,197 account numbers on the flash drive, there was no evidence
that the defendants actively employed those numbers. The evidence shows
only that they obtained and possessed them with the intent to use them for
fraudulent ends. The use requirement in this guideline requires more than


       8  U.S.S.G. §§ 2L2.1(b)(5) (four-level increase if “the defendant fraudulently obtained
or used . . . a United States passport”); 3B1.3 cmt. n.2(B) (“A defendant who exceeds or abuses
the authority of his or her position in order to obtain, transfer, or issue unlawfully, or use
without authority, any means of identification.”).
       9United States v. Rabiu, 721 F.3d 467, 473–74 (7th Cir. 2013); United States v. Ade-
jumo, 772 F.3d 513, 527–28 (8th Cir. 2014); United States v. Hall, 704 F.3d 1317, 1321–23
(11th Cir. 2013).
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acquisition and possession, and the district court erred by interpreting the
Guidelines to the contrary.


                                       B.
      The government contends that the error was harmless. To show that, the
government first “must convincingly demonstrate that the district court would
have imposed” the same sentence for “the same reasons it gave” in the earlier
sentencing. United States v. Ibarra-Luna, 628 F.3d 712, 718–19 (5th Cir.
2010). Second, it must show that the sentence imposed “was not influenced in
any way by the erroneous Guidelines calculation.” Id. at 719. This is a “heavy
burden” that will not be satisfied merely by showing that “the same explana-
tion the court gave for imposing a sentence outside the miscalculated range
could also support a sentence outside the correctly calculated range.” Id.
at 717. Because this sentence is derived from the erroneously identified guide-
line range, the government fails to satisfy the second requirement.
      The district court diligently considered the sentencing factors in
18 U.S.C. § 3553(a) and, as noted above, it stated that “even if the Court isn’t
correct, the Court believes it is necessary to sentence at this very high range.”
But there is no explanation for the sentence (108 months) at the low extreme
of the improper range that is not dependent on the erroneous designation of
that range; we cannot accept that it was a coincidence. It is not enough that
the statutory maximum is 120 months and the district court stated that it felt
the need to sentence near the statutory maximum; the relevant unit of analysis
is the exact sentence imposed. Ibarra-Luna, 628 F.3d at 719. A sentencing
error is not harmless if the sentence was derived from the erroneous range or




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is explainable only by reference to the error. 10
       Cardenas’s sentence is AFFIRMED.                  Carrillo-Torres’s sentence is
VACATED and REMANDED for resentencing.




       10See Ibarra-Luna, 628 F.3d at 718; United States v. Vasquez-Tovar, 420 F. App’x 383,
384 (5th Cir. 2011) (per curiam); United States v. Villarreal, 577 F. App’x 299, 301 (5th Cir.
2014) (per curiam).
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