                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 08a0608n.06
                                Filed: October 10, 2008

                                           No. 06-4141

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


United States of America,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
Corlethea A. White,                                )    SOUTHERN DISTRICT OF OHIO
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )



BEFORE:        Merritt, Clay and Gilman, Circuit Judges.


       MERRITT, Circuit Judge. Defendant, Corlethea White, appeals her sentence after a plea

of guilty to violations of Access Device Fraud, 18 U.S. C. § 1029(a)(2), and Aggravated Identity

Theft, 18 U.S.C. § 1028A(a)(1).1 Defendant was sentenced to 109 months, which included a

mandatory two-year sentence for the Aggravated Identity Theft conviction consecutive to any

sentence for the Access Device Fraud. Although the facts are largely undisputed and defendant pled

guilty to the two counts in the indictment, she continues on appeal to dispute her role in the scheme

to steal credit card account information, claiming that she played only a minimal role. She does not

       1
        By motion submitted after oral argument and submission of the case, defendant requested
to withdraw the issue in her appeal challenging the factual bases supporting her guilty plea. We
reserved ruling on the motion until the opinion was issued, and we now grant defendant’s motion
to withdraw issue III-1.
No. 06-4141
United States v. White

challenge the authority of the court below to increase her sentence based on judicial findings

concerning the number of victims or the amount of the loss. But defendant does challenge the

district court’s refusal to apply the three-level reduction for acceptance of responsibility and its

calculation of the amount of loss attributed to the scheme. In addition, defendant contends that the

district court either did not adequately consider the 28 U.S.C. § 3553(a) factors in sentencing or

failed adequately to articulate its reasoning and, finally, she contends that her constitutional rights

were violated under the Double Jeopardy Clause when the same facts were used to punish her for

both crimes.

       After careful examination of the evidence offered of defendant’s guilt in the Presentence

Report and at the sentencing hearing, and based on her criminal history category of V and the fact

that the district court found her testimony at the sentencing hearing “wholly incredible,” we affirm

the sentence imposed.

                                               I. Facts

       Faith Cook, a codefendant, was employed by Intelirisk, a company that did collections work

for the credit card company Capital One. She met defendant in October 2004. Cook began relaying

account information from Capital One customers to defendant via cell phone. Cook transferred

account information to defendant from between 50 and 100 Capital One accounts. Defendant kept

the information in a notebook. The information included names, corresponding account numbers,

mothers’ maiden names, social security numbers, telephone numbers, addresses and card expiration

dates. Cook testified that defendant was the only person to whom she gave account information, and

Cook also testified that she did not keep any of the information herself. Cook testified that she had

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expected to split the proceeds from goods purchased with the stolen account information, but she

never received any money from defendant and only received about $500 worth of clothing.

         Cook continued to convey information to defendant until July 2005, when Cook was fired

from her job at Intelirisk after it was discovered that a number of Capital One accounts had been

compromised by Cook. Defendant picked up Cook from work the day Cook was fired and claims

that when she arrived to pick up Cook, Cook put a large plastic bag containing personal papers from

her office into the trunk of defendant’s car and left it there. Cook, on the other hand, testified that

she was escorted from the building by security and was not allowed to bring anything from her office

except her purse. Cook pled guilty to identity theft and was awaiting sentencing at the time of

briefing of this appeal.

         A third person involved in the scheme, LaShanta Hartman, met defendant when they were

both incarcerated in the Franklin County [Ohio] Jail in 1999. Hartman testified that she received

from defendant five to eight names with corresponding addresses, account numbers, mothers’

maiden names, social security numbers, passwords, card expiration dates, and phone numbers.

Hartman used these to make fraudulent purchases from various stores. Hartman testified that she

would then sell the items. Hartman testified that she never met or talked to Faith Cook and that she

did not receive any credit card information from her. Like Cook, Hartman pled guilty to identity

theft.

         Also testifying at the sentencing hearing was Mekel Henderson, a realtor who specialized in

government-assisted housing. She was introduced to defendant by a fellow realtor who told

Henderson that defendant could get discounted appliances at Lowe’s stores to put in the houses she

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was selling. Defendant came to Henderson’s office and picked up money for the purchase of

appliances. Defendant later called Henderson to arrange for the delivery of appliances from Lowe’s

purchased by defendant with stolen Capital One account information. Working with Capital One,

agents investigating the stolen accounts made a controlled delivery of appliances from Lowe’s to

Henderson’s residence in October 2005.

       In November 2005, defendant’s residence (which was a home owned by defendant’s

grandmother) was searched. In a locked closet the agents found two shopping bags containing

various papers and documents, including Capital One identification documents pertaining to

accounts furnished by Faith Cook when she worked at Intelirisk. Information removed from the two

shopping bags matched 49 of the 57 victims identified by Capital One as having their account

information stolen by Cook. Mail addressed to defendant was also in the bags. The search also

turned up a letter addressed to a Nate Smith, one of the compromised Capital One account holders,

at 545 Kimball Place, Columbus, Ohio – the address of defendant’s residence. Nate Smith’s name,

Capital One account number, date of birth, social security number, mother’s maiden name, address

and telephone number were found among the papers in the shopping bags. Although no fax machine

was ever found in the house, agents also found a fax sent from Capital One to the phone number at

defendant’s residence. The phone number at defendant’s residence was also linked to the fraudulent

use of other Capital One accounts. Defendant testified at the hearing that she was simply storing the

bags for Faith Cook and she had no idea what was in them.

       William Brown met defendant in December 2005 while he was working in a Sprint cell

phone store. In violation of store policy, Brown permitted defendant to open a Sprint account with

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United States v. White

nothing other than a credit card number. In exchange for opening the account for defendant, Brown

testified that defendant bought a $400 phone on the account and gave it to Brown. Brown was fired

for violating store policy by opening a cell phone account for defendant using only a credit card

number. The credit card number used to purchase the phone at the Sprint store was also found

among the papers in the shopping bags removed from defendant’s residence the month before.

       Capital One’s investigation of the accounts compromised by Cook revealed an actual loss

of $212,361.21 to 57 individuals holding 103 separate Capital One accounts.

       Defendant was charged with one count of access device fraud in violation of 18 U.S.C. §

1029(a)(2),2 and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1).3


       2
           Fraud and related activity in connection with access devices

       (a) Whoever--
       ...
             (2) knowingly and with intent to defraud traffics in or uses one or
             more unauthorized access devices during any one-year period, and by
             such conduct obtains anything of value aggregating $1,000 or more
             during that period;
       ...

       shall, if the offense affects interstate or foreign commerce, be punished as provided
       in subsection (c) of this section.

       18 U.S.C. § 1029(a)(1).
       3
           18 U.S.C. § 1028A(1) states:

       (a) Offenses.--

                 (1) In general.--Whoever, during and in relation to any felony
                 violation enumerated in subsection (c), knowingly transfers,
                 possesses, or uses, without lawful authority, a means of identification

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No. 06-4141
United States v. White

Defendant initially pled not guilty, but withdrew the original pleas and entered guilty pleas to both

counts. See Transcript of Plea Agreement Hearing (Apr. 25, 2006); Plea Agreement. The district

judge went over the plea agreement carefully with defendant because she seemed to dispute some

of the facts in the plea agreement. No agreement was made at this time as to the amount of loss

attributable to defendant, number of victims, or her role in the offense; but the indictment states that

the loss is in excess of $12,000 and specifically mentions only “Victim 1.” The judge explained to

defendant that she would be sentenced after a Presentence Report was completed and that without

that information, he could not tell her what sentence he might impose at the time of sentencing.

Defendant told the judge she understood.

        A Presentence Report was prepared that established an advisory guideline range for Count

1 (Access Device Fraud) based on a total offense level of 22 (Base offense level of 6, plus 12

additional levels for loss amount of $212,361.21, plus 4 additional levels because there were more

than 50 victims), with a criminal history category of V. Count 2 (Aggravated Identity Theft) requires

a 24-month sentence consecutive to the sentence imposed for the underlying felony (Count 1–

Access Device Fraud). Defendant filed numerous objections to the Presentence Report, which the

district court went over in great detail at the sentencing hearing.

        After a lengthy hearing with several witnesses, including defendant, the district court

sentenced defendant to 109 months in prison: 85 months on the access device fraud charge, followed


                of another person shall, in addition to the punishment provided for
                such felony, be sentenced to a term of imprisonment of 2 years.



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by a mandatory 2-year sentence on the aggravated identity theft charge. The district judge stated at

the hearing that he found defendant’s hearing testimony “wholly incredible” and “perjurious” and

credited the testimony of the other witnesses as to defendant’s primary role in the scheme.

Defendant appeals her sentence to this Court.

                                            II. Analysis

                                     A. The Guidelines Range

        Defendant argues that the guidelines range assigned to her pursuant to the United States

Sentencing Guidelines was clearly erroneous factually because it held her responsible for the crimes

of others through the amount of loss calculation and the number of victims harmed by her actions.

She also contests the denial of the three-point reduction for acceptance of responsibility in light of

her guilty plea.

1. Amount of Loss. The district court attributed $212,361.21 to the defendant as the amount of

loss, agreeing with the amount suggested in the Presentence Report and overruling defendant’s

objection.4 Defendant argues that the indictment listed only $12,000 in losses personally attributable

to her conduct and that is the only amount that can be proved as attributable specifically to her

conduct. The district court reiterated that it found defendant’s testimony “wholly incredible” and



        4
          At the sentencing hearing, the probation officer noted that the Application Note to U.S.S.G.
§ 2B1.1 directs that the greater of the intended versus actual loss should be used, but that at the time
she prepared the report she did not have the information about intended loss from Capital One. She
stated that had she had that number, which was in excess of $700,000, she would have recommended
that the court apply it to defendant’s loss calculation instead of the $212,361.21 amount. Sentencing
Tr. at 132. Had the amount of loss risen to the $700,000 number, the level would have increased by
two points from 12 to 14. U.S.S.G. § 2B1.1(b)(1).

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instead believed the witnesses who testified about the extent of defendant’s role in the identity theft.

Sen. Tr. at 131. The district court found that the amount of loss attributable to the entire scheme

should be imputed to defendant. Id. The court then noted that case law in the Sixth Circuit allows

the entire intended, or possible, loss to be attributed to the defendant. United States v. Tudeme, 457

F.3d 577, 581-82 (6th Cir. 2006) (citing U.S.S.G. § 2F1.1). But, the court stated that it “has always

felt comfortable with the actual loss and uncomfortable with an intended loss calculation,” despite

the existence of authority for that position. Id. at 131-32. The court also noted that only actual loss

was used in the Presentence Report and that defendant was not on notice of the larger amount;

therefore, it would be “unfair” to “ambush” her with a larger loss calculation at the hearing. Id. at

132.

        The evidence in the record demonstrates that the accounts of various Capital One customers

incurred actual losses of $212,361.21 over the course of time that defendant had access to the credit

card numbers. Information concerning each of these account holders was found in the shopping bags

in defendant’s closet during the search of her residence. It was, therefore, not clearly erroneous to

attribute the entire actual loss to defendant. Defendant’s argument that she compromised the

accounts in the amount of only $12,000 and that Faith Cook or LaShanta Hartman must be

responsible for the remaining amount was not credited by the district court. There is no evidence

that Faith Cook ever used the account information to obtain goods or services. Instead, her

testimony was that she received only about $500 in clothing from defendant for giving over the

information. Unlike the situation with defendant, no account or other information was ever found

in her possession, no goods were delivered to her address, and no phone or fax numbers used to

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order goods were attributable to her. The district court found credible Cook’s testimony that she

simply gave the customer information to defendant in exchange for clothing and the unrealized hope

that she might receive cash if goods purchased with the stolen information were sold.

        As for LaShanta Hartman, she admitted to having the account information of about five to

eight people, which she used to purchase items from various stores, but she testified that the

information was given to her by defendant and was not from Cook. She testified that she did not

know Faith Cook, and no evidence was produced to demonstrate that Hartman had access to the

Capital One account information except through her relationship with defendant.

2. Number of Victims. As with the amount of loss, defendant claims she should be held

responsible for only the one victim identified in the indictment. The record, however, shows that

defendant had two shopping bags in a locked closet in her residence containing personal and account

information for 57 Capital One account holders and that information from these stolen accounts was

used by defendant to purchase goods and services. The district court did not err in adding four levels

to her base offense level for the number of victims she impacted. U.S.S.G. § 2B1.1(b)(2)(B).

3. Reduction for Acceptance of Responsibility. Defendant claims that she should have received

a three-level reduction in her base offense level because she pled guilty to the charges against her.

Despite the guilty pleas, the district court found that defendant failed to accept responsibility for her

actions as demonstrated by her “wholly incredible” testimony at the sentencing hearing. During her

testimony at the sentencing hearing, defendant disputed the testimony of Cook and Hartman and

repeatedly denied that she played the significant role testified to by the other two women involved

in the scheme. Instead, defendant placed the blame on Cook and Hartman, claiming that they lied

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about their roles in the scheme to lessen their culpability and to put most of the blame on defendant

as the ringleader in order to help themselves. Defendant’s testimony at the sentencing hearing was

that she knew very little about the identity theft and had done only two or three transactions using

stolen account information. She denied that the shopping bags in the locked closet at her residence,

which were full of Capital One account information, belonged to her. She testified instead that they

belonged to Cook, who denied ownership.

       After the witnesses had testified, the district judge went through all of defendant’s objections

carefully. The district court found defendant’s version of the facts “wholly incredible” and credited

the testimony of Cook and Hartman as to defendant’s role in the identity theft ring.5 In addition, the

district court found that the physical evidence obtained during the search of defendant’s residence

did not support defendant’s version of the facts. Accordingly, the district court denied defendant the

reduction for acceptance of responsibility.

                                    B. Section 3553(a) Factors

       Defendant also contends on appeal that the district court erred by either failing to consider

the factors under 28 U.S.C. § 3553(a) or adequately to articulate its reasoning for the sentence.

       The district court is not required to recite each § 3553(a) factor, but “must articulate its

reasoning in deciding to impose a sentence in order to allow for reasonable appellate review.”

United States v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005). While defendant correctly points out that


       5
         Defendant did not receive any additional levels for her role in the offense under U.S.S.G.
§ 1B1.3, nor did she receive an upward adjustment for perjury, despite hints by the district court that
such an adjustment might be warranted given the extent of her denials and untruthfulness to the court
in the face of the evidence.

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the district court did not go through the section 3553(a) factors one-by-one, which generally is

preferable, the court stated that it had “reviewed every one of the factors in Section 3553(a) . . . .”

Sentencing Tr. at 148. A review of the entire sentencing hearing reveals that the district court did

take the factors into consideration in sentencing defendant. In addition to stating on the record that

it had considered all the factors, the court asked the defendant and other witnesses many questions

and expressed its thoughts repeatedly throughout the hearing. The district court also carefully went

over each of defendant’s objections and explained why it sustained or overruled each objection. In

undertaking this careful articulation of the reasoning for its rulings on the objections, the basis for

the court’s ultimate sentence is clear. A full reading of the sentencing transcript demonstrates that

the court was thoughtful about imposing the sentence and did not rigidly apply the Guidelines and

mindlessly ratchet up the relevant conduct in order to impose the harshest sentence possible.

       We hold the sentence reasonable under the circumstances. The district court used the lower

amount for the loss calculation, despite the government’s request at sentencing for the court to use

the higher amount of loss. In addition, the court did not impose an obstruction of justice

enhancement despite the fact that LaShanta Hartman testified that when they were in prison together,

defendant threatened Hartman and her family with bodily harm if Hartman testified against

defendant. The government also hinted that it might ask for a perjury enhancement if the court was

inclined to hear about it. The court rejected all these requests, despite the fact that the judge was

clearly troubled by the defendant’s apparent extensive falsehoods about this and earlier crimes in

which the defendant had been involved but for which she sought to avoid responsibility at

sentencing. The district court stated that it found defendant’s testimony “to be not only incredible

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but perjurious,” Sentencing Tr. at 148, and the judge told defendant that he was tempted to do as

the government requested and “deviate upwards as a result of the testimony that I heard today.” Id.

In the end, the district court did not ratchet up defendant’s sentence, but, to the contrary, showed

restraint in sentencing despite the fact that increases based on perjury, obstruction of justice and

amount of loss were readily justifiable on the record.

                                      C. Double Jeopardy

       Defendant argues that the mandatory two-year sentence she received for Count Two,

Aggravated Identity Theft, which must run consecutively to the sentence for the underlying felony

conviction for Count One, Access Device Fraud, violates double jeopardy principles. Defendant

pled guilty to Access Device Fraud as defined in 18 U.S.C. § 1029(a)(2), which makes it unlawful

to “knowingly and with intent to defraud, traffic in or use one or more unauthorized access devices

[e.g., credit cards] during any one-year period, and by such conduct obtains anything of value

aggregating $1,000 or more during that period . . . .” She also pled guilty to Aggravated Identity

Theft as defined in 18 U.S.C. § 1028A(a)(1), which requires the district court to impose a two-year

mandatory sentence consecutive to any other sentence for any person who “during and in relation

to any felony violation enumerated in subsection (c) [which includes § 1029], [also] knowingly

transfers, possesses, or uses without lawful authority, a means of identification of another person

[other than a credit card] . . . .” Therefore, a violation of 18 U.S.C. § 1028A occurs when a

defendant, in addition to meeting the elements of Access Device Fraud under Section 1029, meets

the additional element of using specific identifying information from a known person, such as a

social security number or mother’s maiden name.

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        Defendant contends that Count Two, the Aggravated Identity Theft charge, violates the

Double Jeopardy Clause because both the Access Device Fraud charged in Count One and the

Aggravated Identity Theft charged in Count Two require the same proof in requiring a finding of

unauthorized use of an “access device,” which in this case is the stolen credit card numbers. “Where

the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is

to determine whether the legislature – in this case Congress – intended that each violation be a

separate offense.” Garrett v. United States, 471 U.S. 773, 778 (1985). If the legislative intent can

be discerned from the face of the statute or the legislative history, then double jeopardy principles

are not violated. Id. at 779 (stating that the “Blockburger rule is not controlling when legislative

intent is clear from the face of the statute or the legislative history”). In Blockburger v. United

States, 284 U.S. 299 (1932), the Supreme Court explained that “where the same act or transaction

constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether

there are two offenses or only one is whether each provision requires proof that the other does not.”

Id. at 304.

        Based on a plain reading of 18 U.S.C. § 1028A, it is clear that the statute is meant to impose

additional punishment on those defendants who, in addition to using an “access device” (such as a

credit card number or bank card), also used specific identifying information from a known person.

United States v. Komolafe, 246 Fed. App’x 806 (3d Cir. 2007) (consecutive sentences for violations

of Sections 1028A and 1029 do not violate Double Jeopardy Clause). Furthermore, the legislative

history of § 1028A makes clear “that the enhancement be imposed as a consecutive sentence and

expressly prohibits a judge from ordering the sentence to run concurrently with the underlying

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offense [here, § 1029(a)(2)].” H.R. Rep. 108-528, 2004 U.S.C.C.A.N. 779, 786. Accordingly, the

sentences imposed pursuant to Counts One and Two were proper.

       For the foregoing reasons, we affirm the judgment and sentence of the district court.




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