                  REVISED FEBRUARY 25, 2010

       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT
                                                         United States Court of Appeals
                                                                  Fifth Circuit

                                                               FILED
                               No. 08-11121                  February 9, 2010
                               No. 08-11151
                                                        Charles R. Fulbruge III
                                                                Clerk
United States of America

                                        Plaintiff-Appellee
v.

Andrea Renee Harris

                                        Defendant-Appellant

——————————————————

United States of America

                                        Plaintiff-Appellee
v.

DeMarquis LaDelle Williams

                                        Defendant-Appellant



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


Before GARWOOD, DAVIS, and DENNIS, Circuit Judges.
GARWOOD, Circuit Judge:
      Defendant-Appellant Andrea Renee Harris (Harris) pleaded guilty to
one count of bank fraud, in violation of 18 U.S.C. § 1344,1 on March 18, 2008,
and was sentenced in November 2008. On July 15, 2008, in an unrelated
case, Defendant-Appellant DeMarquis LaDelle Williams (Williams) pleaded
guilty to one count of conspiracy to traffic in or use unauthorized access
devices, in violation 18 U.S.C. §§ 3712 and 1029(a)(2), and was sentenced on
December 3, 2008.3 Both Harris and Williams appeal their sentences only,

      1
       Section 1344 reads as follows:
      “§ 1344. Bank fraud
          Whoever knowingly executes, or attempts to execute, a scheme or
      artifice—
              (1) to defraud a financial institution; or
              (2) to obtain any of the moneys, funds, credits, assets, securities, or
          other property owned by, or under the custody or control of, a financial
          institution, by means of false or fraudulent pretenses, representations, or
          promises;
      shall be fined not more than $1,000,000 or imprisoned not more than 30
      years, or both.” 18 U.S.C.A. § 1344 (2000) (emphasis in original).
      2
       Section 371 reads as follows:
      “§ 371. Conspiracy to commit offense or to defraud United States
          If two or more persons conspire either to commit any offense against the
      United States, or to defraud the United States, or any agency thereof in any
      manner or for any purpose, and one or more of such persons do any act to
      effect the object of the conspiracy, each shall be fined under this title or
      imprisoned not more than five years, or both.
          If, however, the offense, the commission of which is the object of the
      conspiracy, is a misdemeanor only, the punishment for such conspiracy shall
      not exceed the maximum punishment provided for such misdemeanor.” 18
      U.S.C.A. § 371 (2000) (emphasis in original).
      3
       The relevant portions of Section 1029 read as follows:
      “§ 1029. 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;

                                             2
arguing that the respective district courts erred in using the aggregate credit
limits of the credit cards compromised by their crimes to calculate the amount
of loss under section 2B1.1 of the Sentencing Guidelines.4 Williams also
argues that the district court erred in finding that there were sixty-three
victims of his offense within the meaning of the Guidelines, when only eight
of these institutions suffered actual losses.
      In September 2009, the two cases were consolidated at the direction of
this court for the purpose of oral argument.
      For the following reasons, we affirm Harris’s sentence in its entirety,
and we affirm Williams’s sentence in part and vacate and remand it in part.
                    FACTS AND PROCEEDINGS BELOW
      We discuss the facts of Harris’s and Williams’s cases separately,
because they are unrelated except for a legal issue that both share.
Harris’s Case
      Citibank, N.A., (Citibank) hired Harris as a customer service
representative in November 2002. In early March 2003, Harris began
accessing Citibank customer accounts without authorization and providing
Keasha Turner (Turner) with confidential credit card information. Turner
then used this information to make fraudulent charges. Harris also falsely
changed information in several customer accounts to indicate that
replacement cards had been requested. She then had these replacement
cards mailed to addresses where Turner retrieved them. Throughout March


                  ***
      shall, if the offense affects interstate or foreign commerce, be punished as
      provided in subsection (c) of this section.” 18 U.S.C.A. § 1029(a) (2000)
      (emphasis in original).
      4
        Both Harris and Williams were sentenced under the November 2007 version of the
Guidelines.

                                             3
2003, Harris removed “blocks” on the accounts that had been compromised
and entered false bank verifications, enabling Turner’s fraudulent charges to
be processed even after they had been flagged as suspicious.
      On March 25, 2003, Citibank’s internal fraud investigator confronted
Harris about her irregular activities. Harris admitted her role in the fraud
and said that her boyfriend had pressured her into helping Turner. She
stated that she had not profited from the use of the fraudulent credit cards or
from giving the information to Turner. Harris also stated that she had never
made any of the fraudulent charges herself. She said that her boyfriend had
told her that Turner planned to use the credit cards to purchase gift cards.
      Citibank later discovered that another one of its employees,
Christianna Wright (Wright) was also providing Turner with customer
account information. However, neither Harris nor Wright knew about the
other’s involvement with Turner.
      Harris compromised eight accounts before being caught, of which six
sustained a total of $11,812.41 in fraudulent charges.5 The eight accounts
that were compromised had an aggregate credit limit of $89,770.00. Most of
the fraudulent charges made on the cards added up to less than half of their
respective limits. However, one account’s credit limit was exceeded. That
account had a credit limit of $500.00, and about $690.00 in charges were
made. Most of the fraudulent charges made on each account were made on
the same day, but there was one occasion on which successful charges were
made to the same account on more than one day.
      On April 24, 2007, Harris was charged with one count of conspiring to
commit bank fraud and one count of bank fraud. She waived indictment and

      5
           The two remaining accounts that were compromised did not sustain fraudulent
charges.

                                             4
pleaded guilty to bank fraud without a plea agreement. The conspiracy count
was dismissed on the motion of the United States.
      Harris’s Pre-Sentence Report (PSR) recommended that she be held
accountable for $89,770.00, the aggregate credit limit of the eight accounts
she had compromised, rather than the $11,812.41 in actual losses she had
inflicted. This recommendation was made based on our holding in United
States v. Sowels, 998 F.2d 249 (5th Cir. 1993), and language from the official
commentary to the Sentencing Guidelines. USSG §2B1.1 comment note
3(A)(i) (Nov. 2007) (providing that the loss inflicted by a defendant convicted
of fraud is to be calculated as the greater of actual or intended loss). Harris
objected to this loss calculation, arguing that Sowels did not support the use
of the aggregate credit limit in her case.
      Harris renewed her objection at sentencing, but the district court
overruled it and adopted the PSR. Based on the district court’s calculations,
the Sentencing Guidelines’ recommended range for Harris’s offense was
fifteen to twenty-one months of imprisonment. The district court sentenced
her to eighteen months and three years of supervised release. She was also
ordered to pay a $100.00 special assessment and restitution in the amount of
$11,812.41. If Harris’s objection to the use of the aggregate credit limit had
been sustained, and the loss she had inflicted had been calculated on the
basis of the $11,812.41 in actual losses that she had inflicted, her
recommended range would have been ten to sixteen months of imprisonment,
and she would have been eligible for a split sentence.
      Harris timely filed a notice of appeal on November 24, 2008.




                                        5
Williams’s Case
      Williams worked as a tollbooth operator at Dallas-Fort Worth
International Airport (DFW). In late June or early July 2007, Curtis Davis
(Davis) drove up to Williams’s tollbooth, identified himself as “D,” and spoke
to Williams about “making some extra money.” Williams indicated that he
was interested, so Davis gave him a credit card skimmer and told him to pass
his customers’ credit cards through it before giving the cards back to them.
Davis told Williams that the skimmer recorded and stored the information
found on the magnetic strips of the cards.
      Williams began regularly passing his customer’s credit cards through
the skimmer. In late July 2007, Davis returned and gave Williams $2,000.00
in exchange for the skimmer. On August 3, 2007, Davis returned the
skimmer to Williams, so he could resume recording his customers’
information. Williams was arrested on August 7, 2007, after investigators
determined that twenty-two different credit card fraud cases under
investigation had charges to his tollbooth in common. He had the skimmer in
his possession when he was arrested, and he admitted to having skimmed
over 500 credit cards. It was later determined that the exact number was
547. He cooperated with the investigators and identified Davis.
      On March 5, 2008, Williams was charged with one count of conspiracy
to traffic and use unauthorized access devices. He pleaded guilty to the
indictment on July 15, 2008. His PSR recommended that he be held
accountable for an intended loss of $2,649,287.25. This figure was calculated
by adding $2,545,287.25, the aggregate credit limit for the 339 credit cards of
which the credit limits were known, to $104,000.00, which represented a
$500.00 loss for each of the 208 cards for which the credit limits were not



                                       6
known.6 The PSR also recommended a four-level enhancement based on its
finding that Williams’s fraud had involved more than fifty victims. USSG §
2B1.1(b)(2)(B). Following the PSR’s reasoning, the range prescribed by the
Sentencing Guidelines for Williams’s conduct would normally have been
seventy-eight to ninety-seven months. However, Williams had pleaded guilty
to conspiracy, which carried a maximum sentence of sixty months’
imprisonment. 18 U.S.C. § 371. Therefore, the Sentencing Guidelines
recommended sentence was 60 months (USSG § 5G1.1(a)), and the PSR
recommended a sentence of sixty months’ imprisonment.
      Williams objected to the PSR on two grounds. First, he argued that the
aggregate credit limit should not have been used to calculate his intended
loss. Instead, he argued that he should only be held responsible for a loss of
$157,138.22. This figure was calculated by adding the sum of the actual loss
inflicted on the accounts with known credit limits, $53,138.22, to the
$104,000.00 total for the 208 cards for which the limits were unknown.7
Second, he argued that only eight of the sixty-three banks whose information
had been compromised were “victims” within the meaning of the Sentencing
Guidelines, because only eight of the banks had reported an actual loss.
      At sentencing, Williams renewed his objections. The district court
overruled them, finding, in accordance with the PSR, that the amount of loss
he had inflicted yielded a recommended range of seventy-eight to ninety-
seven months, but that this had to be reduced to sixty months in Williams’s
case due to the fact that he had pleaded guilty to conspiracy. Accordingly, the


      6
        See USSG § 2B1.1, comment note 3(F)(i). The record suggests that the limits of
these 208 cards were not known because the relevant credit card companies did not respond
to requests for information about these accounts.
      7
          Presumably, no fraudulent charges had been made on these 208 cards.

                                            7
district court sentenced him to sixty months’ imprisonment with three years’
supervised release. He was also ordered to pay $53,138.22 in restitution.
      If the district court had assessed the loss inflicted by Williams at
$157,138.22 but continued to find that there were more than fifty victims, his
guideline recommended range would have been thirty-three to forty-one
months’ imprisonment. If the district court had assessed the loss at
$157,138.22 and reduced the number of victims to eight, his recommended
range would have been twenty-one to twenty seven months. And if the
district court had reduced the number of victims to eight, but continued to
assess the loss at $2,649,287.25, then Williams’s recommended range would
have been fifty-one to sixty months.
      Williams timely filed a notice of appeal on December 8, 2008.
                                DISCUSSION
      On appeal, both Harris and Williams argue that the district courts
erred by using the aggregate credit limits of the compromised cards to
calculate their intended loss. Additionally, Williams argues that his district
court erred in finding that his crime victimized more than fifty individuals.
The Government concedes that it was error for the district court to find that
Williams victimized more than fifty individuals, but argues that this error
was harmless and therefore does not require remand. We address the issue
shared by both cases first.
I. Intended Loss Calculations
      Under the Sentencing Guidelines, the offense level for offenses
involving fraud is increased based on the amount of loss inflicted by the
defendant. See USSG § 2B1.1(b)(1). The higher the offense level is, the
longer the defendant’s recommended sentence will be. The commentary to
the Guidelines provides that “loss is the greater of actual loss or intended

                                        8
loss.” USSG § 2B1.1, comment n.3(A). “Actual loss” is the reasonably
foreseeable pecuniary harm that resulted from the offense. Id. at n.3(A)(i).
“Intended loss” is “the pecuniary harm that was intended to result from the
offense.” Id. at n.3(A)(ii). A special rule provides that, in cases involving an
“unauthorized access device,” a term that includes credit cards, “loss includes
any unauthorized charges made with the . . . unauthorized access device and
shall not be less than $500 per access device.” Id. at n.3(F)(I). The district
court “need only make a reasonable estimate of the loss” based upon the
evidence. Id. at n.3(C).
      Harris and Williams both argue that the district courts erred in
determining the amount of loss they intended to inflict by adding together the
credit limits of the cards they compromised. As a threshold matter, they
argue that this issue should be reviewed de novo. The Government contends
that this issue must be reviewed for clear error and that our precedent
indicates that the district courts did not err in using the aggregate credit
limits to determine the defendants’ intended loss.
      We begin by addressing the proper standard of review. We then
examine the circumstances under which a district court may use the
aggregate credit limit of stolen cards to determine a defendant’s intended
loss. Finally, we examine the facts of Harris’s and Williams’s cases to
determine whether or not the district courts’ use of the aggregate limits was
error. We address each case separately, since their different facts led the
defendants to make somewhat different arguments before this court.




                                        9
       A. Standard of Review
       A district court’s sentencing decision is reviewed for abuse of discretion.
Gall v. United States, 128 S.Ct. 586, 597 (2007); United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). However, the “district court’s
interpretation or application of the Sentencing Guidelines is reviewed de
novo, and its factual findings . . . are reviewed for clear error. There is no
clear error if the district court’s finding is plausible in light of the record as a
whole.” Cisneros-Gutierrez, 517 F.3d at 764 (internal quotation marks and
citation omitted).8
       Harris’s and Williams’s cases illustrate how it can sometimes be
difficult to distinguish an application of the Sentencing Guidelines from a
finding of fact. The defendants argue that the district courts’ decision to use
the aggregate credit limits of the compromised cards involved an application
of the Guidelines that should be reviewed de novo. The Government contends
that we must review for clear error, arguing that the intended loss
calculations were themselves findings of fact, in that each was essentially a
finding that the defendant in question had intended to inflict a certain
amount of loss.
       We confronted a similar situation in United States v. Klein, 543 F.3d
206 (5th Cir. 2008). In Klein, the defendant was a doctor who committed
insurance fraud by several means, one of which was to submit claims for the
in-office administration of injections he had instructed his patients to self-
administer at home. Id. at 208. Another of his fraudulent practices was to
charge retail prices for medications he had bought wholesale. Id. In


       8
         The parties do not contend, and the record does not reflect, that in either case the
district court intended to either make a Guideline authorized departure or a non-guideline
sentence (under Gall or Kimbrough v. United States, 128 S.Ct. 558 (2007)).

                                              10
calculating the losses he had inflicted, the district court simply added
together the face values of the fraudulent bills he had submitted. Id. at 209.
It did not subtract the legitimate value of the injections that were self-
administered or the legitimate wholesale value of the medications he had sold
from the face values of the fraudulent charges. Id. On appeal, the
Government argued for clear error review of the district court’s method of
calculating loss, while the defendant argued that de novo review was
appropriate. We agreed with the defendant:
             “The government is correct that the finding as to the
      amount of loss is a factual finding, and we cannot reassess the
      evidence but owe the finding deference. We can, however,
      consider de novo how the court calculated the loss, because that is
      an application of the guidelines, which is a question of law.
      United States v. Saacks, 131 F.3d 540, 542–43 (5th Cir. 1997). In
      fact, before assessing the court’s loss estimate, we ‘first
      determine[ ] whether the trial court’s method of calculating the
      amount of loss was legally acceptable.’ {United States v. }Olis, 429
      F.3d {540,} 545 {(5th Cir. 2005) }(citing Saacks, 131 F.3d at
      542–43; United States v. Krenning, 93 F.3d 1257, 1269 (5th Cir.
      1996)).” Klein, 543 F.3d at 214 (italicization and brackets in
      original; material in braces added).
This language and the cases from which it was derived require us to review a




                                       11
district court’s method of determining the amount of loss de novo.9 See Klein,
543 F.3d at 214; Olis, 429 F.3d at 545; Saacks, 131 F.3d at 542–43.
       Adding the credit limits of compromised cards together to estimate
intended loss is a method of determining the amount of loss. Therefore, we
hold that the district courts’ use of this method in the defendants’ cases must
be reviewed de novo.
       B. The Method of Calculating Intended Loss
       The method used by the district courts in this case was not to
determine the defendants’ intended loss based on direct inferences from the
facts, but rather to apply Sowels as a sort of bright-line rule that allowed
them to factually estimate the defendants’ intended loss as being equal to the
aggregate credit limits of the stolen cards. We have affirmed methods of
determining intended loss similar to the one used by the district courts


       9
          We recognize that some of the language found in our earlier opinions may be in
tension with Klein. See, e.g., United States v. Hill, 42 F.3d 914, 918–19 (5th Cir. 1995)
(concluding “that the district court did not clearly err” where it found that the defendant’s
intended loss was the face value of securities in which the defendants had no legal interest
but nevertheless fraudulently rented to their victims); United States v. Wimbish, 980 F.2d
312, 316 (5th Cir. 1992) (holding that the district court “did not clearly err in calculating
the loss value under USSG § 2F1.1 as the face value of the checks deposited” where the
defendant only stole the portions of the face values which he requested as “cash back” from
his fraudulent deposits). We read these opinions as primarily examining the factual bases
of the loss determinations that were at issue. Under this reading, we regard the panels
that wrote these opinions as implicitly having approved de novo the methods used by the
district courts before explicitly declining to find clear error in the factual bases for the
district courts’ calculations.
        This reading avoids conflict with our later cases and allows us to treat a district
court’s method of determining loss as an application of the Guidelines, rather than as a
finding of fact. We think the former approach is superior, because the issue of whether or
not a particular method of determining loss is proper, though often fact-dependent, is itself
a sufficiently abstract and general proposition to amount to a question of law. Therefore,
we think that a district court’s method of determining loss should be reviewed de novo,
while clear error review should be applied to the background findings of fact that determine
whether or not a particular method is appropriate, as well as to the mathematical
calculations and the appraisals of value that are made using the method chosen.

                                             12
numerous times in the past. United States v. Oates, 122 F.3d 222, 225 (5th
Cir. 1997) (“This Court has long adhered to the view, supported by the
relevant application note, that the amount of loss for the purpose of
determining a base offense level in U.S.S.G. § 2F1.1(b)(1) is the dollar amount
placed at risk by a defendant’s fraudulent scheme or artifice.”10) (citing United
States v. Brown, 7 F.3d 1155, 1159 (5th Cir. 1993); Sowels, 998 F.2d at 251;
United States v. Wimbish, 980 F.2d 312, 315–16 (5th Cir. 1992), abrogated in
part by Stinson v. United States, 113 S.Ct. 1913, 1918–19 (1993);11 United
States v. Hooten, 933 F.2d 293, 298 (5th Cir. 1991)). However, an
examination of our opinions reveals that it is only proper for sentencing
courts to use these methods under certain factual circumstances.
             1. The Rule of Wimbish
      In United States v. Wimbish, the defendant forged a series of stolen
checks and deposited them, requesting cash back from each deposit.
Wimbish, 980 F.2d at 313. At his sentencing, the district court calculated the
amount of intended loss by adding together the face values of the checks he
had forged. Id. The defendant objected to this method and appealed his
sentence on the ground that he had known the deposits would be detected as
forgeries and voided. Id. Thus, he argued, his intent was only to steal the
amount of money that he had requested as cash back when he made the
deposits. Id. He concluded that this meant the district court should have
found that his intended loss was the same as the actual loss he had inflicted:


      10
        In early versions of the Guidelines, “OFFENSES INVOLVING FRAUD OR
DECEIT” were addressed in USSG § 2F1.1, instead of § 2B1.1. See, e.g., United States
Sentencing Commission, Guidelines Manual, § 2F1.1 (Nov. 1997).
      11
         The opinion in Stinson v. United States did not abrogate Wimbish on grounds that
are relevant to the issues presented by Harris’s and Williams’s cases.

                                           13
the amount of money that he had requested as cash back from the fraudulent
deposits. Id.
      We rejected this argument. Id. at 312. We found that it was proper to
use the sum of the full face values of the forged checks, because the banks
could have failed to detect his fraud in a timely manner. Id. at 315-16. The
possibility of such a failure meant that the defendant’s scheme placed the
entire face value of each stolen check at risk. Id. We held that the
defendant’s “conscious,” “callous indifference” to this risk placed the face
values of the stolen checks within the ambit of his intended loss. Id. at 316.
Our subsequent cases have interpreted Wimbish as establishing that the full
value of property recklessly jeopardized by a defendant’s crime may be
considered part of his intended loss. E.g., Oates, 122 F.3d at 225.
            2. The Rule of Wimbish and Third-Party Transfers
      In United States v. Morrow, we examined one way in which property
can be recklessly jeopardized by a defendant’s crime. 177 F.3d 272, 300–01
(5th Cir. 1999) (per curiam). The defendants in Morrow were mobile home
salesmen who committed fraud in helping their customers obtain financing.
Id. at 285. At sentencing, the district court calculated their intended loss by
adding together the face values of the loans they had procured fraudulently.
Id. at 300. On appeal, the defendants challenged this calculation. Id.
      We began by noting that the repayment of the fraudulent loans was
controlled entirely by the defendants’ customers, not by the defendants
themselves. Id. We found that this lack of control meant that the district
court had “accurately characterized the defendants as consciously indifferent
or reckless about the repayment of the loans.” Id. at 301 (internal quotation
marks omitted). Accordingly, we held that the district court had not erred in


                                       14
calculating the defendants’ intended loss by adding the face values of the
fraudulent loans. Id. Morrow stands for the proposition that one way a
defendant can recklessly jeopardize the full value of property during the
commission of a crime is to place that property in the hands of a third party
whom he does not control. See id. at 300–01. If transferring the property to a
third party creates a significant risk that the property will be completely
destroyed, then its face value may be used to determine the defendant’s
intended loss under the rule of Wimbish. See Morrow, 177 F.3d at 300–01;
Wimbish, 980 F.2d at 316.
            3. The Rule of Wimbish and Incomplete Offenses
      In United States v. Sowels, the defendant was a postal employee who
stole between fifty and seventy-five letters containing credit cards in
November 1991 and 110 letters with cards in January 1992. 998 F.2d at 250.
He was arrested before he was able to use the 110 cards he stole in January,
but after he had already made $28,540.89 in unauthorized charges on the
cards he had stolen in November. Id. At sentencing, the district court
calculated his inflicted loss by adding the $28,540.89 in actual charges made
in November to the $351,600.00 aggregate limit of the 110 cards that were
stolen, but never used, in January. See id. at 252.
      On appeal, the defendant challenged the propriety of using the
aggregate credit limit of the unused cards stolen in January. Id. at 250-51.
We affirmed his sentence. See id. at 251–52. The district court had made an
explicit finding of fact that the defendant had intended to use all of the credit
available under the cards. Id. at 251. We reviewed this finding for clear
error. Id. Even though there was no direct support for the finding in the
record, we found that it was not clearly erroneous for two reasons. See id.


                                       15
The first reason was that the finding was supported by the rule of Wimbish,
because the defendant had planned to transfer the stolen cards to third
parties whom he did not control, meaning his crime would recklessly
jeopardize the full value of the cards’ credit limits. Id. The second reason
was that the offense was incomplete at the time the authorities intervened.
Id. We stated that, “[h]ad Sowels completed or withdrawn from his offense
before being apprehended, he might have been able to rebut the evidence that
he intended to charge the cards to their limit. Given that authorities cut
short his plans, however, the district court did not clearly err.” Id. See also
id. at 252 (“[T]his case is unique because it involves an uncompleted offense.
For this reason, the district court faced the difficult task of projecting into the
future Sowels’s intent as to the extent to which he would use the cards.”).
Thus, Sowels established first, that the rule of Wimbish can be applied to
credit cards, and second, that a defendant cannot easily rebut a factual
finding that his intended loss was equal to the full value of property
jeopardized by his crime if his fraud was never completed due to the
intervention of law enforcement. See id. at 251-52.
            4. The Requirement of Actual, Not Constructive, Intent
      Both Harris and Williams argue that it is improper for a sentencing
court to find that a defendant intended to inflict the total loss of property that
he recklessly jeopardized, citing language from some of our opinions that
provides that intended loss must be calculated by looking to the defendant’s
actual, not constructive, intent. E.g., United States v. Sanders, 343 F.3d 511,
527 (5th Cir. 2003) (“[O]ur case law requires the government prove by a
preponderance of the evidence that the defendant had the subjective intent to
cause the loss that is used to calculate his offense level.”); United States v.


                                        16
Hill, 42 F.3d 914, 919 (5th Cir. 1995) (“When reviewing the calculation of an
intended loss, we look to actual, not constructive, intent . . . .”). We recognize
that this language is confusing when contrasted with the rule of Wimbish,
which allows intent to be inferred from recklessness for the purpose of
calculating intended loss. See Wimbish, 980 F.2d at 315–16. However, this
apparent conflict can be resolved by examining the origin of the language
requiring “actual, not constructive, intent.”
      We first mentioned this requirement in United States v. Henderson. 19
F.3d 917, 928 (5th Cir. 1994). In Henderson, the defendant was convicted of
bank fraud for making loans from one bank, of which he was the president
and largest shareholder, to a second bank he had started with a friend,
without disclosing to the first bank that he was a co-owner of the second
bank. Id. at 919–22. The sentencing court, apparently having confused its
actual and intended loss inquiries, refused to consider the possibility that the
defendant had intended to inflict no loss. Id. at 927–28. Instead, it found
that his intended loss was the face value of the fraudulent loans he had
procured, reasoning that “we intend the result of the acts that we take.” Id.
On appeal, we found that the district court had misapplied the rule of
Wimbish, because it had found intent to inflict a loss of the loan’s face value
based not upon recklessness, but on the fact that an actual loss ultimately
had occurred. Id. at 928. We noted that, unlike Wimbish and Sowels, which
had involved stolen property, Henderson involved a fraudulent loan. Id.
Obtaining a loan fraudulently is different from stealing property outright,
because defendants who fraudulently obtain loans often intend to repay them
in full. See id. It follows that, “where the defendant intends to repay the loan
or replace the property, the intended loss is zero.” Id. Accordingly, we


                                        17
vacated the defendant’s sentence and ordered the district court to consider his
argument that he had intended no loss. Id. at 928–29.
      Thus, Henderson only established that courts could not use the fact that
a defendant’s crime ultimately resulted in a loss of property to find that he
constructively intended to inflict any loss. See id. Such a method of
calculating intended loss confuses what actually occurred with what the
defendant intended to occur. See id. It was in this context that we said,
“[t]he Sentencing Guidelines refer to actual intent, not constructive intent.”
Id. at 928. It is clear from this context and from the way we have discussed
Henderson in later opinions that we did not use the phrase “constructive
intent” in the sense that it is often used in discussing the mental states of
substantive criminal offenses. Compare Henderson, 19 F.3d at 928 (“[T]he
intended loss for stolen or fraudulently obtained property is the face value of
that property.”) and United States v. Hill, 42 F.3d 914, 919 (5th Cir. 1995)
(stating that “we look to actual, not constructive, intent,” but also holding the
defendant responsible for the face value of fraudulently-lent securities based
on the risk imposed on the victims who borrowed the securities), with Wayne
R. LaFave, 1 Substantive Criminal Law § 5.2(e), at 352 (2d ed. 2003) (“[T]he
notion of ‘constructive intent’ has been used by some courts; it is first asserted
that intent is required for all crimes, and then it is added that such intent
may be inferred from recklessness or negligence.”).
      We did not prohibit sentencing courts from inferring intent from a
defendant’s recklessness, for to do so would have been in direct conflict with
Wimbish and its progeny. See, e.g., Tedder, 81 F.3d at 551 (inferring intent to
cause a loss from the fact that the defendant had helped third party clients
whom he did not control to obtain loans, while recklessly disregarding the fact


                                       18
that their poor credit histories and fake social security numbers meant that
they were highly unlikely to pay).12 Instead, we held that a sentencing court
cannot reject a defendant’s claim that no loss was intended based purely on
the fact that a loss was eventually inflicted.13 Henderson, 19 F.3d at 928–29.
       An interpretation of Henderson’s “constructive intent” language that
used the term as it is often used in discussing the intent requirements of
criminal statutes would produce absurd results. In Tedder, the defendant,
who had helped people with poor credit histories obtain a series of fraudulent
loans with fake social security numbers, attempted to argue that it always
had been his “intent” that the loans be repaid. Tedder, 81 F.3d at 551. He
even presented credible evidence that he always instructed his clients to “pay
their bills on time.” Id. The sentencing court calculated his intended loss as
being the face value of the loans he had recklessly obtained for third parties,
and he appealed, arguing the record clearly showed that his actual intent had
been for his clients repay their loans. Id. We were able to reject this strained
argument, because the district court could reasonably infer intended loss from
defendant’s reckless acts, regardless of his evidence of “actual intent.” See id.
       A rule that prohibited sentencing courts from inferring intent from a
defendant’s recklessness would approach effectively creating a defense
capable of eviscerating the “intended loss” provisions of the Sentencing


       12
          In United States v. Tedder, we implicitly distinguished Henderson on the basis of
the fact that the repayment of the fraudulent loans in Henderson was controlled by the
defendant, while the repayment of the fraudulent loans in Tedder was in the hands of third
parties whom the defendant did not control and whose repayments he did not intend to
make in the event of a default. Tedder, 81 F.3d at 551.
       13
         Accordingly, in remanding Henderson, we did not require the district court to find
that the defendant had intended no loss. We ordered it to consider the possibility that the
defendant had intended no loss and to make a factual finding one way or the other.
Henderson, 19 F.3d at 928–29.

                                            19
Guidelines for any criminal who managed to insulate his crime from the
ultimate infliction of loss. It takes no great feat of the imagination to picture
pickpockets selling stolen credit cards to third parties, only to claim at
sentencing, “Sure, I sold them the cards, but it was none of my business what
they planned to do with them,” or computer hackers gaining access to bank
account numbers on behalf of clients, only later to claim, “I don’t know, and I
didn’t ask, what they planned to do with those numbers.” We did not write
Henderson to prevent the intended loss provisions of the Sentencing
Guidelines from being applied to criminal middlemen who act recklessly or in
willful blindness, and we decline to read it in a manner that accomplishes
that result now.14
             5. The Aggregate Limit of Stolen Credit Cards
      Under the rule of Wimbish, a sentencing court may find that a
defendant intended to inflict a loss of the face value of property that was
recklessly jeopardized by his crime. Wimbish, 980 F.2d at 315–16. We have
consistently held that one way a defendant may jeopardize property is by
transferring it to a third party whom he does not control. Morrow, 177 F.3d
at 300–01. We have also held that credit cards constitute a form of property
that can be recklessly jeopardized in this way. Sowels, 998 F.2d at 251;
United States v. Mordi, No. 92-1675, 1993 WL 152261, at *2–4 (5th Cir. Apr.
21, 1993) (per curiam). Therefore, in cases where a defendant recklessly
jeopardizes the full credit limit of a card by transferring it to a third party
whom he does not control, the sentencing court may reasonably find that his
intended loss was equal to the limit of that card. See Sowels, 998 F.2d at 251;


      14
        We do not here deal with or address the elements of a criminal offense or the
statutory maximum sentence, but rather with the Sentencing Guidelines in the post-Gall
and Kimbrough world.

                                           20
Mordi, 1993 WL 152261, at *4. Although it is possible for a defendant to
rebut the inference that he intended to charge a card to its limit by
introducing evidence of a contrary modus operandi, this will be difficult to
accomplish, so as to render clearly erroneous a contrary district court finding,
if there is no evidence that his offense was complete at the time the defendant
was stopped by the authorities. See Sowels, 998 F.2d at 251–52.
      C. Harris’s Intended Loss
      Harris makes three major arguments in support of her assertion that
the district court erred in sentencing her based on the aggregate limit of the
cards she compromised. The first is that, while sentencing based on the
credit limits of compromised cards is supported by Sowels, her case is
distinguishable. Her second major argument is that the district court erred
by relying on a First Circuit case, United States v. Alli, 444 F.3d 34 (1st Cir.
2006), that is not good law in the Fifth Circuit. Her final argument is that,
even if Alli is good law in this circuit, its holding is inapplicable to her case,
because the record reflects that she controlled the third parties whom she
provided with credit card account information. We examine each argument in
turn, but find no error in the district court’s sentence.
             1. Sowels and Harris’s Intended Loss
      Harris argues that the method of assessing intended loss as being equal
to the aggregate limit of stolen credit cards, which we approved in Sowels,
cannot be applied to her case, because our holding in Sowels was conditioned
on the fact that the defendant had not yet used the cards he had stolen at the
time he was apprehended. See generally Sowels, 998 F.2d at 251. She
contends that, while the method used in Sowels is appropriate in cases where
the cards have not been used, the actual charges are better indicators of a


                                         21
defendant’s intended loss in cases where the defendant managed to make
fraudulent charges before being apprehended. See generally id. She notes
that in Sowels, the sentencing court had calculated the loss on cards that had
actually been charged by adding the actual charges, rather than the credit
limits. Id. at 250. She concludes that it was improper for the district court to
hold that she intended to inflict a loss of the aggregate limit of the cards she
compromised, because most of the cards she compromised were charged well
below their limits.
      Harris is correct that the reasoning in Sowels rests in part on the fact
that the defendant was not able to establish a pattern of charges due to the
intervention of law enforcement. See Sowels, 998 F.2d at 251 (“Had Sowels
completed or withdrawn from his offense before being apprehended, he might
have been able to rebut the evidence that he intended to charge the cards to
their limit.”). However, the broader principle behind our result in Sowels was
the rule of Wimbish. This is evident from the fact that Sowels relied heavily
on our unpublished opinion in United States v. Mordi. See Sowels, 998 F.2d
at 251.
      In Mordi, the defendant was arrested for using stolen credit cards to
purchase merchandise. 1993 WL 152261, at *1. At sentencing, the district
court found that he had inflicted an actual loss of $45,368.00. Id. It further
found that his intended loss was $90,768.00, because at the time the
defendant was arrested, there remained $45,400.00 in unused credit on the
accounts the defendant had compromised. Id. The district court used the
larger number to determine his sentence, in accordance with the Guidelines.
Id. at *3. On appeal, we affirmed this sentence. Id. at *4. Citing Wimbish
for support, we held that the defendant recklessly had put his victims at risk


                                       22
for the aggregate amount of the credit cards’ limits. Id. We held that he
could therefore be held to have intended a loss of the cards’ aggregate limit.
       Thus, the central rationale behind Sowels is derived from our opinion in
Mordi, which itself is based on the rule of Wimbish. As is illustrated by our
opinion in Mordi, whether or not a stolen credit card has sustained charges
does not dispositively determine whether or not its full credit limit was
recklessly jeopardized by the defendant’s crime. See Mordi, 1993 WL 152261,
at *4. A defendant can more easily establish a modus operandi defense where
his offense was completed before he was apprehended by the authorities. See
Sowels, 998 F.2d at 251–52. But even in a case involving a completed offense,
it may still be reasonable for the sentencing court to find that the defendant
intended to inflict a loss of the entire credit limit of a stolen card if he
committed his crime in such a way that the entire limit was recklessly
jeopardized. See Mordi, 1993 WL 152261, at *4 (holding that a defendant had
intended to inflict the loss of the aggregate limit of stolen cards, because his
crime had recklessly jeopardized this limit, even though the actual fraudulent
charges on the cards did not exceed it).
       Therefore, we disagree with Harris that Sowels’s application of the rule
of Wimbish to a case of credit card theft wholly relied on the fact that the
defendant in Sowels had not actually made any fraudulent charges at the
time he was apprehended by the authorities.15 The fact that Harris’s co-


       15
          We also disagree with Harris that our opinion in United States v. Ismoila, 100
F.3d 380 (5th Cir. 1996), requires this interpretation. In Ismoila, we merely characterized
Sowels as having held “that available credit limit can be used as a measure of loss when
the credit cards were stolen but not used.” Ismoila, 100 F.3d at 396 (emphasis in original).
We did not state that the available credit limit could not also be used as a measure of loss
where the credit cards were used and the full amount of their limit was recklessly
jeopardized. The central point of our opinion in Ismoila was that sentencing courts have a
large amount of flexibility and discretion in making these determinations. See id.

                                             23
conspirators had made charges on the cards she compromised before they
were stopped by the authorities merely means that it was easier for her to
mount a modus operandi defense to the PSR’s finding that she intended to
inflict a loss of the entire aggregate limit. It did not guarantee that this
defense would succeed.
              2. The District Court’s Use of United States v. Alli
       Harris also argues that the district court erred in relying on the First
Circuit case of United States v. Alli. 444 F.3d at 34. The district court cited
that case as support for the proposition that, because Harris “gave account
information to other people, including her codefendant [sic], Keasha Turner,”
the aggregate credit limit of the accounts she compromised was the proper
measure of her intended loss, since “she had no control over the amount of
charges [these] other people made to the victim’s [sic] accounts.” Harris
argues that the district court’s reliance on Alli was improper, because the
facts of Alli involved no actual loss, and because the First Circuit declined to
follow what it viewed as the law of this circuit in reaching its holding.
       In Alli, the First Circuit held that a defendant’s “‘intended loss’ includes
‘losses that might naturally and probably flow from’ his unlawful conduct”
and therefore that a defendant who sold (or intended to sell) cards to a third
party without making any charges himself could be held to have intended to
inflict the loss of their aggregate limit. 444 F.3d at 38 (quoting United States
v. Jacobs, 117 F.3d 82, 95 (2d Cir. 1997)). In reaching this holding, the panel
rejected our requirement that a sentencing court’s intended loss calculation
be based on “actual, not constructive, intent.” Id. (citing Morrow, 177 F.3d at



(“Available credit is simply one way of determining intended loss.”). That is likewise
significant in our holding here.

                                             24
301). We do not need to decide whether the First Circuit’s examination of
“losses that might naturally and probably flow” from a defendant’s conduct is
equivalent to our examination of what property was recklessly jeopardized.
We also do not need to determine whether Alli’s holding relied upon the fact
that there was no actual loss inflicted in Alli. These inquiries are irrelevant,
because the record reflects that the district court cited Alli to support the
proposition that, generally, a defendant who transfers stolen property to a
third party whom he does not control recklessly jeopardizes the face value of
that property. This proposition is amply supported by our case law. See, e.g.,
Morrow, 177 F.3d at 300–01; Sowels, 998 F.2d at 251. Therefore, the district
court did not err by referring to Alli to support it.
            3. Harris’s Control Over the Parties to the Conspiracy
      Harris’s final argument is that, even if Alli is good law in this circuit,
its holding is inapplicable to her case because the record reflects that she
controlled the third parties whom she provided with credit card account
information. If the assertion that she controlled her co-conspirators’ actions
were supported by the district court’s findings of fact, the rule of Wimbish
might be inapplicable to her case, since it then likely could not be shown that
she had recklessly jeopardized the full credit limits of the cards she
compromised. If reckless jeopardy could not be shown, then arguably her
intended loss could only have been assessed as the aggregate limit if a finding
were made that the intent or hope of the conspiracy had been to ultimately
charge the cards to their limits. That may have been difficult to establish,
given that Harris’s co-conspirators did not charge most of the cards to their
limits and usually did not make any charges on a card after the first day it
was used.
      However, the record does not compel acceptance of Harris’s assertion

                                        25
that she controlled the actions of her co-conspirators. In fact, the district
court explicitly found that “she had no control over the amount of charges
other people made to the victim’s [sic] accounts.” This is a finding of fact,
which we must review for clear error. See Cisneros-Gutierrez, 517 F.3d at
764. While Harris was able to remove obstacles to the processing of her co-
conspirators’ fraudulent charges, there is no indication in the record that she
ever intervened to erase a fraudulent charge that she felt was too large, nor is
there any indication that she even had the power to do so. In fact, when
Harris’s co-conspirators exceeded the limit of one of the cards, there is no
indication in the record that Harris did anything about it. If she were truly
the controlling figure in a conspiracy with an understood goal of never
reaching the limits of any cards, this inaction would be difficult to explain.
      But we think this inaction makes sense, because the record supports
the inference that Harris was little more than a pawn in Turner’s conspiracy.
Harris was pressured into helping Turner by her (Harris’s) boyfriend.
Harris’s only knowledge of Turner’s plan to purchase gift cards came through
this boyfriend. Harris did not even know that there was another participant
in the conspiracy, Christine Wright. Given these facts, we cannot conclude
that the district court clearly erred in failing to find that Harris controlled the
actions of the third parties to whom she gave the account information.
      That Harris’s co-conspirators might have avoided overcharging the
cards does not change this analysis. The question before us is whether or not
the district court clearly erred in determining that Harris intended to inflict a
loss of the credit limits of the cards. This determination was supported by the
fact that Harris recklessly jeopardized this amount by transferring it to third
parties whom she does not appear to have known or controlled. That the
record might support a finding that these third parties never intended to

                                        26
inflict a loss of the credit limits does not excuse Harris’s recklessness in
giving the credit card information to them.
            4. Conclusion as to Harris’s Intended Loss
      Under the rule of Wimbish, a sentencing court may infer intent to
inflict a loss equal to the face value of property based on the fact that the
defendant recklessly jeopardized that property during the commission of his
crime. See Wimbish, 980 F.2d at 315–16. That a defendant recklessly
jeopardized property that he obtained fraudulently may be reasonably
supported by a finding that he transferred it to a third party whom he did not
control. See Morrow, 177 F.3d at 301. We find that the record in Harris’s
case supports a finding that she transferred confidential credit card
information to third parties whom she did not control.
      Therefore, we hold that the district court did not err in calculating her
intended loss as being equal to the credit limits of the cards she compromised.


      D. Williams’s Intended Loss
      Williams also argues that the district court erred in calculating his
intended loss for three reasons. First, he contends that the district court
could not properly calculate his loss as being equal to the aggregate limit of
the cards without finding that he subjectively intended to inflict a loss of that
amount. Second, he argues that potential risk alone cannot support
sentencing enhancements under the Guidelines. Finally, he argues that the
trial court improperly sentenced him based on his co-conspirators’ subjective
intent.
      We have already addressed Williams’s first argument above. We do not
interpret the language from our previous opinions that required “actual, not
constructive, intent” as preventing a sentencing court from inferring intent

                                        27
from recklessness or willful blindness. See Tedder, 81 F.3d at 551. Thus,
where a defendant’s crime recklessly jeopardized property, the defendant may
properly be held to have intended a loss of the amount jeopardized. Wimbish,
980 F.2d at 315–16. A defendant may recklessly jeopardize property by
transferring it to a third party whom he does not control. Morrow, 177 F.3d
at 300–01. In this case, Williams’s PSR indicated that he had given the
information from over 500 credit cards to an individual whom he knew only
as “D” in exchange for $2,000.00. If this did not recklessly jeopardize the
credit limits of these cards, it is hard to imagine what would. Therefore, we
do not think that the district court erred in adopting the PSR’s determination
that Williams had intended to inflict a loss equal to the aggregate credit limit
of the cards he had compromised.
      Williams’s second argument, that potential victim risk alone cannot
support sentence enhancements, is also without merit. We have held
numerous times in the past that a defendant’s sentence may be enhanced
where his crime recklessly jeopardizes property, even if that property
survives the crime intact. E.g., Wimbish, 980 F.2d at 315–16. In these cases,
the sentencing court may infer the intent to inflict loss from the defendant’s
reckless disregard for the value of the property that was jeopardized. Id.
      Williams’s third argument is a variation on his first. He argues that
the court “transferred” his co-conspirators’ subjective intent to steal money
from the cards onto him. He asserts that his intent was only to record the
information off of the cards and give it to Davis. Therefore, he concludes, it
was error for the district court to find that he intended to steal any amount of
money. This argument lacks merit, because a sentencing court may
reasonably infer intent from recklessness or willful blindness. Id. We refuse
to find that Williams must be treated as having intended no loss simply

                                       28
because he happened to be a criminal middleman. He illegally obtained
information that allowed him to steal an amount of money equal to the
aggregate limit of the cards he skimmed. He then gave this information to
Davis, in effect transferring to Davis an option to take the aggregate limit of
the cards that had been skimmed.
      Whether or not Davis intended to exercise this option is irrelevant to
Williams’s intended loss, because Williams had no control over Davis’s
actions. The district court could reasonably find that Williams knew that
Davis planned to steal money (indeed, it is hard to conceive of any other
reasonable finding), and that he enabled Davis to steal the full amount that
could be obtained with the cards. By holding Williams responsible for an
intended loss of the aggregate limit of the cards, the district court held him
responsible for his own intent, not that of his co-conspirators.
      Therefore, we find that the record in Williams’s case supports a finding
that he intended to inflict a loss equal to the credit limits of the cards he
compromised. The district court did not err in holding him responsible for
this amount.
      E. Conclusion as to the District Courts’ Method
      As we discussed in detail above, neither Sowels nor Wimbish allows
district courts to always automatically assess intended loss as being equal to
the limits of stolen credit cards. Rather, the method used in each case was
contingent upon a factual background wherein the defendant evidenced his
intent to cause a certain amount of loss by recklessly jeopardizing property
worth that amount.
      The records in both Harris’s and Williams’s cases support the intended
loss findings ultimately made by the district courts, because both records
reasonably support the implicit findings that the defendants recklessly

                                        29
jeopardized the aggregate credit limits of the cards they compromised. For
this reason, we find no error in the district courts’ intended loss calculations.
II. Number of Victims in Williams’s Case
      Williams’s second assignment of error is that the district court
enhanced his sentence four levels based on its finding that his offense had
involved fifty or more victims. Williams objected to this enhancement,
because only eight of the sixty-three financial institutions identified as
“victims” by the district court suffered an actual loss. The Government
correctly concedes that it was error to apply this enhancement in its brief,
explaining that:
      “In the application notes to § 2B1.1, ‘victim’ is defined to include
      ‘any person who sustained any part of the actual loss determined
      under subsection (b)(1).’ USSG § 2B1.1, comment. (n.1)
      (emphasis added). ‘Actual loss’ is ‘the reasonably foreseeable
      pecuniary harm that resulted from the offense.’ Id. (n.3(A)(I)).
      ‘Pecuniary harm’ means ‘harm that is monetary or that otherwise
      is measurable in money.’ Id. (n.3(A)(iii)). Here, only eight of the
      63 financial institutions that had issued the credit cards
      improperly skimmed by Williams suffered an ‘actual loss’ . . . .
      Thus, only those eight financial institutions would qualify as
      ‘victims’ under the plain language of § 2B1.1, and it was error for
      all 63 banks to be counted in calculating the four-level
      enhancement for more than 50 ‘victims.’ See, e.g., United States
      v. Conner, 537 F.3d 480, 489 (5th Cir. 2008) (recognizing that,
      under language of §2B1.1, ‘actual loss’ must be suffered to qualify
      as a ‘victim’ under § 2B1.1(b)(2)).”
However, the Government argues that this error does not require remand,
because Williams’s sentence fell within the correct range, and because it
asserts that the record adequately demonstrates that the district court would
have imposed the same sentence without the error. Williams argues that the
record does not show that the district court would have selected the same
sentence if it had calculated the correct range.

                                        30
      Under the district court’s erroneous interpretation of the Guidelines,
Williams’s recommended range would have been seventy-eight to ninety-
seven months, had he not pleaded guilty only to conspiracy. Because
Williams pleaded guilty only to conspiracy, the Guidelines recommended a
sentence of sixty months under USSG § 5G1.1(a).16 If the district court had
correctly assessed the number of victims, Williams’s recommended range
normally would have been fifty-one to sixty-three months, which would have
been reduced by the statutory maximum for conspiracy to a range of fifty-one
to sixty months. See USSG § 5G1.1(c)(1).
      A procedural error made during sentencing is harmless if the error did
not affect the district court’s selection of the sentence imposed. United States
v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009) (citing Williams v.
United States, 112 S.Ct. 1112, 1120–21 (1992)). The burden of establishing
that an error is harmless rests on the party seeking to uphold the sentence.
Delgado-Martinez, 564 F.3d at 753. The proponent of the sentence “must
point to evidence in the record that will convince us that the district court had
a particular sentence in mind and would have imposed it, notwithstanding
the error made in arriving at the defendant’s guideline range.” Id. (quoting
United States v. Huskey, 137 F.3d 283, 289 (5th Cir. 1998)). We use this
method of analysis even when the sentence selected under a district court’s
erroneous interpretation of the Guidelines would have fallen within the
correct range. Delgado-Martinez, 564 F.3d at 753. “[T]he crux of the


      16
        USSG § 5G1.1 states:
“Sentencing on a Single Count of Conviction
      (a)   Where the statutorily authorized maximum sentence is less than the
            minimum of the applicable guideline range, the statutorily authorized
            maximum sentence shall be the guideline sentence.” (Emphasis in
            original).

                                           31
harmless-error inquiry is whether the district court would have imposed the
same sentence, not whether the district court could have imposed the same
sentence.” Id (emphasis in original). The fact that the actual sentence fell
within the properly calculated Guidelines range may sometimes be relevant
to the harmless-error inquiry, but it is not dispositive. Id.
      After reviewing the record, we cannot say that the district court would
have imposed the same sentence if it had properly calculated Williams’s
Guidelines range. The Government points to several statements made by the
district court at Williams’s sentencing hearing as support for its argument
that the district court would have imposed the same sentence if it had
correctly calculated the guidelines range:
      “[Y]ou are dealing with over 500 cards that were skimmed
      improperly, that is why the Guidelines are so high, and I think
      this qualifies as a serious offense.
                                       ***
             So I think the Guideline range is appropriate in this case.
      It is reasonable for the conduct. It is a serious offense.
             And frankly, Mr. Williams, you received a break by the fact
      that your lawyer was able to work out a plea agreement to get
      you to plead guilty to a conspiracy. If you had pled guilty to the
      underlying statute, you would be looking at 78 to 97 months or six
      to eight years confinement. That is where your Guidelines are.
      By working a plea agreement for conspiracy, you limited your
      exposure to 60 months. . . .
             So I think the Guideline range is reasonable in light of the
      conduct that is involved here, the type of crime, and the
      magnitude of the crime . . . .” (emphasis added)
We find that these statements are ambiguous, because it is unclear to us
whether, in speaking of the “Guideline range,” the district court was referring
to the seventy-eight to ninety-seven month range that would normally have
been recommended or to the sixty month range that was technically
recommended in Williams’s case due to the fact that he pleaded guilty to

                                       32
conspiracy. While the sixty month range was the official Guidelines range for
Williams’s case, the district court also referred to the seventy-eight to ninety-
seven month range as “where your Guidelines are.”
      Furthermore, that the district court found its miscalculated Guidelines
range “reasonable” would not necessarily mean that it would have issued the
same sixty month sentence if it had been apprised of the correct range. This
is true whether the range to which the district court referred was the sixty
month sentence or the seventy-eight to ninety-seven month sentence. We
have nothing that indicates to us, with the confidence needed to satisfy the
standard of harmless error review on this issue, that the district court would
have sentenced Williams to sixty months’ imprisonment if it had calculated
his Guidelines range correctly.
      Therefore, we must vacate Williams’s sentence and remand it to the
district court, so that it may sentence him after considering the correct
Guidelines range for his offense, fifty-one to sixty months. The district court
may decide not to alter Williams’s original sentence, but the sentence must be
reconsidered.
                                  CONCLUSION
      For the foregoing reasons, we affirm the district court’s sentence in
Harris’s case. In Williams’s case, we affirm the district court’s intended loss
determination, but vacate and remand his sentence on the issue of the
number of victims of his crime, with instructions that the district court
consider the correct Guidelines range of fifty-one to sixty months before
sentencing him again.
                  No. 08-11121, USA v. Harris, AFFIRMED;
   No. 08-11151, USA v. Williams, Sentence VACATED and REMANDED
                      for resentencing with instructions.

                                       33
