                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 06a0287p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                   X
                             Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                    -
                                                    -
                                                    -
                                                        No. 05-6258
          v.
                                                    ,
                                                     >
 SYLVESTER MADU TUDEME,                             -
                           Defendant-Appellant. -
                                                   N
                    Appeal from the United States District Court
                  for the Middle District of Tennessee at Nashville.
                  No. 04-00051—Aleta A. Trauger, District Judge.
                                             Argued: July 20, 2006
                                    Decided and Filed: August 9, 2006
             Before: GILMAN and COOK, Circuit Judges; and DOWD, District Judge.*
                                              _________________
                                                   COUNSEL
ARGUED: Paul J. Bruno, Nashville, Tennessee, for Appellant. Darryl A. Stewart, ASSISTANT
UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee. ON BRIEF: Paul J. Bruno,
Nashville, Tennessee, for Appellant. Darryl A. Stewart, ASSISTANT UNITED STATES
ATTORNEY, Nashville, Tennessee, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        RONALD LEE GILMAN, Circuit Judge. Sylvester Madu Tudeme was charged with two
counts of unlawfully using another person’s identity to commit a felony offense, in violation of
18 U.S.C. § 1028(a)(7). After pleading guilty to one of the counts, he was sentenced to 21 months
of imprisonment and 3 years of supervised release, and was ordered to pay $6,682.00 in restitution.
On appeal, he challenges the sentence because the district court allegedly erred in determining the
statutory maximum for the offense and in enhancing the sentence for an amount of loss in excess
of $120,000. For the reasons set forth below, we REVERSE the judgment of the district court and
REMAND for resentencing on a basis consistent with this opinion.



         *
          The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by
designation.


                                                          1
No. 05-6258           United States v. Tudeme                                                Page 2


                                       I. BACKGROUND
A.     Factual background
       In January of 2001, an account was opened at First Union Bank in Nashville, Tennessee in
the name of Tommy Cypress. A deposit in the amount of $500, made by personal check, constituted
the opening balance of the account. James M. Grant, a Tennessee state trooper who testified at
Tudeme’s sentencing hearing, identified three driver’s licenses bearing Tudeme’s photograph, one
of which was in the name of Tommy Cypress.
        Nine months after the account was opened, a fraudulent check in the amount of $155,166.30
was deposited. The check was originally drawn on a Unilever Cosmetics, Inc. account and made
payable to Hess Magazine. It had been reported missing by Unilever, which had stopped payment
on the check. By the time the check was deposited in the fraudulent account, it had been altered to
name Tommy P. Cypress as the recipient. After the check was deposited, the bank received a call
from a person identifying himself as Tommy Cypress. Per his instructions, the bank purchased stock
in an energy company with the deposited funds, presumably for the benefit of the account holder.
The bank immediately sold the stock, however, after discovering that the check was fraudulent. It
incurred a loss of $6,682.50 on the sale. At this point the bank account was empty.
        Three weeks after the fraudulent deposit, the bank was contacted by an electronics store
when someone tried to pay by check for an expensive television set. The store had a routine policy
of verifying personal checks in amounts over $1,000 before the customer could take a purchased
item from the store. Because the check in question was drawn on the Tommy Cypress account, the
bank called law enforcement. When the purchaser returned to the store later in the day to pick up
his new television, law enforcement officers were waiting for him. They arrested the purchaser, who
claimed to be Tommy Cypress, on state charges (the precise charges are not clear from the record).
After his initial court appearance, the man finally identified himself as Tudeme.
        Approximately three years after his arrest, a federal indictment charged Tudeme with two
counts of knowingly using without lawful authority a means of identification of another person with
the intent to commit a felony offense under Tennessee law, in violation of 18 U.S.C. § 1028(a)(7).
One count dealt with Tudeme’s opening and utilizing the First Union checking account in another
person’s name. The second count was for attempting to purchase the television set. Tudeme pled
guilty to the second count and, pursuant to a plea agreement with the government, the first count was
dismissed.
       At his sentencing hearing, Tudeme testified that he opened the account in the name of
Tommy Cypress as part of an undertaking with another individual named Tommy Lawson. The
purpose of the account, Tudeme said, was to enable illegal immigrants without bank accounts to
cash their payroll checks. Tudeme was to receive a fee for setting up the account and cashing the
checks. He said that his only role after opening the account was to withdraw the money when
Lawson asked him to. Tudeme further testified that Lawson had given him a blank check from the
First Union account and told Tudeme that he was entitled to $5,000. With this check, Tudeme
attempted to purchase the expensive television set.
B.     The Presentence Report and the district court’s sentence
        The Presentence Report (PSR) recommended, pursuant to the 2000 edition of the United
States Sentencing Guidelines (U.S.S.G.), that the district court utilize a base offense level of 6.
U.S.S.G. § 2F1.1(a); 18 U.S.C. § 1028(a)(7). Pursuant to U.S.S.G. § 2F1.1(b)(1)(H), the PSR
recommended a 7-level increase for an amount of loss exceeding $120,000 but less than $200,000.
Two additional 2-level increases were made because there was more than one victim and because
the offense involved a fraudulent identification. A 3-point reduction was then granted for
No. 05-6258           United States v. Tudeme                                                    Page 3


acceptance of responsibility. These calculations yielded a total offense level of 14. The PSR then
found that Tudeme had no prior convictions, putting him in Criminal History Category I. Based on
these conclusions, the PSR recommended a Guidelines range of 15 to 21 months of imprisonment
and a 3-year period of supervised release.
        The district court agreed with the Guidelines calculations set forth in the PSR and ultimately
sentenced Tudeme to a term of 21 months of imprisonment, followed by 3 years of supervised
release. With respect to the amount-of-loss enhancement to Tudeme’s base offense level, the district
court stated:
       In terms of the objection to the intended loss being not over . . . $120,000[,] . . . I
       deny that objection as well.
       It seems to be very clear from his testimony, even if he didn’t know anything about
       this $155,000 check, his testimony was that Mr. Lawson was talking about huge
       numbers, 20 and $30,000 . . . a whack, payroll checks apparently for illegal
       immigrants.
       I find that this scheme with or without the $155,000 check was one intended to cause
       a loss of at least . . . $120,000.
The district court further ordered Tudeme to pay restitution to First Union in the amount of $6,682,
the amount of loss it incurred in selling the energy stock. On appeal, Tudeme challenges the district
court’s imposition of a 3-year term of supervised release and the amount-of-loss enhancement to his
sentence, but does not take issue with the order of restitution.
                                           II. ANALYSIS
A.      Statutory maximum as it relates to the applicable term of supervised release
        Tudeme’s first argument is that the district court misinterpreted the maximum penalty set
forth in the statute, which impacts the maximum term of supervised release. We review the district
court’s statutory interpretation de novo. United States v. Morris, 203 F.3d 423, 424 (6th Cir. 2000)
(“The present case involves a question of statutory interpretation and is, therefore, subject to de novo
review.”).
        The district court determined that the statutory maximum sentence for Tudeme’s offense was
15 years pursuant to 18 U.S.C. § 1028(b)(1)(D). This subsection covers the unlawful use of
another’s identification where the “individual committing the offense obtains anything of value
aggregating $1,000 or more during any 1-year period.” Id. In this case, Tudeme attempted to
purchase a television set valued at over $4,000, thus satisfying the dollar amount set forth in the
statute. But he counters that he did not actually “obtain anything of value” because the transaction
was not consummated. He therefore argues that he should have been subjected to a statutory
maximum sentence of only three years of imprisonment. See 18 U.S.C. § 1028(b)(2)(B) (2000)
(setting forth a three-year maximum sentence for offenses involving the unlawful use of another’s
identification that do not satisfy the “obtained” dollar-value requirement in 18 U.S.C.
§ 1028(b)(1)(D)).
       The district court correctly ruled against Tudeme on this point. In the statute setting forth
the applicable offense, a separate subsection addresses the issue of attempts: “Any person who
attempts or conspires to commit any offense under this section shall be subject to the same penalties
as those prescribed for the offense, the commission of which was the object of the attempt or
conspiracy.” 18 U.S.C. § 1028(f). This section specifically provides that the penalties for an
attempted crime are the same as if the offense had been completed.
No. 05-6258           United States v. Tudeme                                                 Page 4


        In this case, had the law enforcement officers stood by and allowed Tudeme to consummate
the transaction for the television set, there would be no dispute that he was subject to the 15-year
statutory maximum under 18 U.S.C. § 1028(b)(1)(D). Because the officers arrested him moments
before the transaction was completed, he can be said to have only attempted the television purchase,
as was found by the district court. The district court properly interpreted 18 U.S.C. § 1028(f) to
provide as punishment for this attempt “the same penalties as those prescribed for the offense.”
Here the “same penalties” included a two-tiered statutory maximum based on the value of the goods
in question. Because the item that Tudeme attempted to procure exceeded the threshold of $1,000,
he is subject to the 15-year statutory maximum. The district court therefore did not err in this
regard.
       We now turn to how the statutory-maximum penalty impacts the applicable term of
supervised release. As demonstrated above, the statutory maximum term of imprisonment for the
crime Tudeme committed was 15 years. A 15-year felony is classified as a Class B felony. See 18
U.S.C. § 3581(b)(2) (applying to felonies with maximum terms of imprisonment of more than 12
years but not more than 25 years). The district court is authorized to include in a sentence for a
Class B felony up to 5 years of supervised release. 18 U.S.C. § 3583(b)(1). As such, the 3-year
period of supervised release to which Tudeme was sentenced fell well within the authorized term.
The district court therefore did not err in imposing the 3-year term of supervised release.
B.     Amount-of-loss increase to the base offense level
        Tudeme’s second argument relates to the amount of loss calculated by the district court. We
review the district court’s determination as to the amount of loss under the clearly erroneous
standard. United States v. Ellerbee, 73 F.3d 105, 108 (6th Cir. 1996) (reviewing an amount-of-loss
determination under U.S.S.G. § 2F1.1(b) using that standard); United States v. Ware, 282 F.3d 902,
907 (6th Cir. 2002) (“A factual finding is clearly erroneous where, although there is evidence to
support that finding, the reviewing court on the entire [record of] evidence is left with the definite
and firm conviction that a mistake has been committed.”); United States v. Davidson, 409 F.3d 304,
310 (6th Cir. 2005) (“We continue, in reviewing individual Guidelines determinations, to apply the
standards of review we applied prior to Booker.”).
        The commentary to U.S.S.G. § 2F1.1 states that the “loss is the value of the money, property,
or services unlawfully taken.” But, in cases of attempted crimes, “if an intended loss that the
defendant was attempting to inflict can be determined, this figure will be used if it is greater than
the actual loss.” As one example, the commentary states that “if the fraud consisted of . . .
representing that a forged check for $40,0000 was genuine, the loss would be $40,000.”
         Here, the district court enhanced Tudeme’s base offense level by seven levels because the
court concluded that the amount of loss was greater than $120,000 but less than $200,000. There
are two purported justifications for this enhancement: (1) the fact that a fraudulent check in the
amount of $155,166.30 was deposited into the account opened by Tudeme in a false name, and
(2) the fact that the check-cashing scheme arranged between Tudeme and Lawson involved cashing
large payroll checks (“20 and $30,000 . . . a whack,” according to the district court), which
cumulatively would add up to an amount in the seven-level enhancement range. Both justifications
were advanced by the district court. (“I find that this scheme with or without the $155,166 check
was one intended to cause a loss of at least . . . $120,000.”)
       We conclude that neither justification supports the district court’s amount-of-loss finding.
With respect to the first justification, Tudeme argues that he was not the one who deposited the
$155,166.30 check and that he did not even know about the deposit. The government responds that
the Guidelines provide that the amount of loss must include,
No. 05-6258           United States v. Tudeme                                                    Page 5


       in the case of a jointly undertaken criminal activity (a criminal plan, scheme,
       endeavor, or enterprise undertaken by the defendant in concert with others, whether
       or not charged as a conspiracy), all reasonably foreseeable acts and omissions of
       others in furtherance of the jointly undertaken criminal activity, that occurred during
       the commission of the offense of conviction, in preparation for that offense, or in the
       course of attempting to avoid detection or responsibility for that offense[.]
U.S.S.G. § 1B1.3(a)(1)(B). The question then becomes whether the deposit of this check into the
fraudulent account, allegedly by a third party, was reasonably foreseeable.
        In the course of the sentencing hearing, Tudeme testified about the scheme with Lawson
whereby payroll checks of illegal immigrants would be deposited into the fraudulent First Union
account and Tudeme would withdraw the money at Lawson’s request, entitling Tudeme to a portion
of the proceeds. This scheme made it reasonably foreseeable that payroll checks would be deposited
into the fraudulent account. But what Tudeme could not have reasonably foreseen, based on the
admitted scheme, was the deposit of (1) a check originally payable to a corporate entity (as opposed
to a payroll check), (2) that was drawn on insufficient funds, and (3) that was payable in an amount
far exceeding a normal payroll check.
         The government at oral argument contended that the deposit of a check in any dollar amount
into this fraudulent account, even if for one million dollars, would have been attributable to Tudeme
in terms of the amount-of-loss calculation. This contention, however, stretches the term “reasonably
foreseeable” beyond its limits. Because the evidence before the district court does not support the
conclusion that Tudeme could have reasonably foreseen the deposit of the fraudulent $155,166.30
check, we are “left with the definite and firm conviction that a mistake has been committed” with
respect to the amount-of-loss calculation based on the first justification provided by the district
court. See Ware, 282 F.3d at 907.
        The second justification provided by the district court was that the check-cashing scheme
arranged between Tudeme and Lawson involved cashing payroll checks that cumulatively would
add up to an amount in excess of $120,000. According to the court, these payroll checks were in
the amount of “20 and $30,000 . . . a whack.” Where the district court came up with this dollar
amount for the payroll checks is totally unexplained. That any illegal immigrant would receive a
payroll check anywhere near that amount is inconceivable, and even a single deposit of multiple
payroll checks that add up to a number in this range finds no support in the record.
        Moreover, even if there was evidence to support the conclusion that a large number of
payroll checks were to be cashed using the fraudulent account in an amount that would eventually
exceed $120,000, we find no basis in the record to suggest that these payroll checks cashed by
Tudeme would have been drawn on insufficient funds. If the payroll checks were in fact legitimate,
as we presume they were, we fail to see how any loss to the bank was intended by the scheme.
       As with the first justification provided by the district court, the evidence available at
sentencing does not support the conclusion that Tudeme intended a loss exceeding $120,000 by
cashing payroll checks belonging to illegal immigrants. We are therefore “left with the definite and
firm conviction that a mistake has been committed” in enhancing Tudeme’s offense level based on
the second justification provided by the district court. See Ware, 282 F.3d at 907.
No. 05-6258         United States v. Tudeme                                           Page 6


                                    III. CONCLUSION
    For all of the reasons set forth above, we REVERSE the judgment of the district court and
REMAND for resentencing on a basis consistent with this opinion.
