                                                            NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                    No. 12-4334
                                   _____________

                         UNITED STATES OF AMERICA

                                           v.

                               OUSAMANE BARRY,

                                                   Appellant



                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                      (District Court Nos. 3-09-cr-00220-002)
                    District Judge: Honorable James M. Munley


                              Argued on July 18, 2013


                               (Filed: August 5, 2013)


               Before: RENDELL, SMITH and ROTH, Circuit Judges


Michael J. Diamondstein, Esquire
Jason D. Javie, Esquire (Argued)
Two Penn Center
Suite 900
1500 John F. Kennedy Boulevard
Philadelphia, PA 19102

                   Counsel for Appellant
Peter J. Smith, Esquire
United States Attorney
Michelle L. Olshefski, Esquire (Argued)
Amy C. Phillips, Esquire
Assistant United States Attorney
235 North Washington Avenue
Scranton, PA 18503

                    Counsel for Appellee



                                      OPINION


RENDELL, Circuit Judge:

       Appellant Ousamane Barry was convicted after a jury trial of three counts of

unauthorized use of counterfeit access devices and one count of conspiracy to use

counterfeit access devices in connection with a scheme to use fraudulent credit cards

throughout New Jersey and Pennsylvania. Thereafter, Barry was sentenced to 41

months’ incarceration, two consecutive two-year terms of supervised release, restitution,

and a $400 special assessment. Barry now appeals the judgment of conviction and the

sentence imposed. For the reasons stated below, we will affirm the judgment of

conviction, but we will remand with respect to sentencing.

                                       I. Background

      On February 28, 2009, police responded to a call from the Clinton Township Wal-

Mart loss prevention department. When the police arrived at the store, they were

informed that two men had attempted to purchase merchandise with stolen or fraudulent




                                            2
credit cards. Police officers took the two men—Abdoulaye Ndour and Addis Aka—into

custody, and were then joined by Officer Santoro, who later testified at Barry’s trial.

       Officer Santoro was informed that two men were acting suspiciously in a van in

the Wal-Mart parking lot. After Ndour and Aka admitted that the two men—who turned

out to be Barry and another co-defendant, Ousamane Camara—were with them, Officer

Santoro approached the van. Through the van’s windows, he could see several laptop

computer boxes and Wal-Mart bags filled with merchandise, including several Nintendo

game systems. Police obtained consent to search the vehicle from Camara, who was

sitting in the driver’s seat. Officer Santoro observed three to six credit cards stuffed into

the driver’s side seatbelt housing when Camara stepped out of the vehicle. Police also

found five laptop boxes when Camara opened the van’s back hatch, and three additional

Wal-Mart bags filled with Nintendo DS gaming systems when Camara opened the side

door. After Barry, who was sitting in the passenger seat, stepped out of the van, officers

saw an additional four to six credit cards stuffed in the passenger side seatbelt housing.

Barry and Camara were then taken into custody. During an inventory search after the van

was towed, police found receipts from Wal-Marts in Phillipsburg and Wilkes-Barre,

Pennsylvania, all dated February 28, 2009. A total of 81 credit cards were discovered in

the van.

       Further investigation by the United States Secret Service revealed that the credit

cards were counterfeit or fraudulent,1 and that the men had made other fraudulent


1
 The record does not indicate the precise way in which the credit cards were created,
altered, or otherwise rendered counterfeit or fraudulent.
                                              3
purchases at Wal-Mart stores in New Jersey and Pennsylvania. Secret Service Agent

Jason Wolfson contacted the financial institutions associated with the account numbers to

verify that the accounts were compromised. The financial institutions provided the

potential exposure with respect to each card, and Agent Wolfson arrived at a total

potential exposure of $675,170 by aggregating the maximum individual exposure on each

account associated with the 81 credit cards found in the van.

       On July 21, 2009, a grand jury in the Middle District of Pennsylvania issued an

indictment charging Barry with three counts of credit card fraud in violation of 18 U.S.C.

§ 1029 and one count of conspiracy in violation of 18 U.S.C. § 371. Barry, along with

his co-conspirator Camara, proceeded to trial on April 23, 2012. Barry’s chief defense

was that he was in the van simply to be driven home from a wedding, that he did not

know that the other men were engaged in criminal activity, and that he had committed no

crimes.

       During the course of the three-day trial, Officer Santoro testified for the

government. On cross-examination, defense counsel attempted to elicit testimony that

would support Barry’s chief defense by asking Officer Santoro, “Did Mr. Barry ever

make any type of confessions or admissions to you that he knew what these guys were up

to, that he knew they were engaged in criminal activity?” (App. 138.) On redirect, the

government attempted to refute the suggestion that Barry was not aware that the other

men were engaged in criminal activity:

       Q:     Attorney Comerford asked you whether or not Mr. Barry said
              anything to you. Do you recall that testimony?


                                              4
        A:    Yes.

        Q:    Did Mr. Barry ever say to you, hey, I was at a wedding. I don’t
              know what these guys were up to, but I had nothing to do with it?
              Did he ever say that to you that day?

        A:    No.

        Q:    At any point did he ever say that?

        A:    No. Until you just said it, that was the first time I was being made
              aware of that.

(App. 147.)

        Barry’s attorney objected immediately:

        Mr. Comerford: Your Honor, I think we’re in a gray area here. I really
              don’t think we can use a Defendant’s silence as evidence against
              him, and that’s what she’s doing.

        Ms. Olshefski: Your Honor, he opened the door on cross examination to
              what, if anything, Mr. Barry said when he was in the company of
              this police officer.

        The Court: Would you repeat that again?

        Ms. Olshefski: Attorney Comerford opened the door to that question when
              he asked Officer Santoro what, if anything, Mr. Barry said while he
              was in the company of Officer Santoro.

        The Court: Sustain the objection.

(Id.)

        The government also presented Ndour and Aka as witnesses. They testified that

all four men knew each other, and that they traveled between Virginia and New York to

use the fraudulent credit cards. The government also presented testimony from Amadou




                                             5
Diallo, who knew Barry and Camara from New York, and testified that the three men

used counterfeit credit cards throughout Pennsylvania.

       In the defense case, Barry testified on his own behalf, claiming that he had no idea

why the van stopped at multiple Wal-Marts and that he was merely getting a ride home

from a wedding. Barry presented a photograph of him in the bride’s home to corroborate

his story, although the photograph had no date stamp. Barry also testified that he did not

know Ndour or Aka prior to the trip and that “I never committed those crimes. I swear to

God.” (App. 423.)

       The jury returned a guilty verdict on all counts.

       In preparation for sentencing, the United States Probation Office prepared a pre-

sentence report on June 19, 2012, finding that Barry’s total offense level was 22—which

included a 14-level enhancement for intended loss in excess of $400,000 but less than $1

million and a 2-level enhancement for obstruction of justice based on Barry providing

false testimony at trial—and a criminal history category of I. The PSR recommended a

term of imprisonment between 41 and 51 months and a term of supervised release of

three years.

       Barry objected to the enhancements, and at his sentencing on November 8, 2012,

the District Court heard testimony and argument on those enhancements. The

government offered testimony from Agent Wolfson, who detailed the manner in which he

determined the potential exposure amount of each credit card and concluded from his

research that the aggregate potential exposure as to the 81 cards found in the van was

$675,170. Barry offered no testimony or other evidence into the record on the intended

                                             6
loss issue. The District Court also heard argument regarding the obstruction of justice

enhancement.

       At the conclusion of the hearing, the District Court held that the intended loss

calculation of $675,170 was appropriate based on Agent Wolfson’s testimony, argument

from both parties, and the PSR.2 The District Court also credited the government’s

argument that Barry’s testimony was not believed to be truthful, and therefore found that

the obstruction of justice enhancement was proper. The District Court then sentenced

Barry to 41 months’ imprisonment, restitution in the amount of $13,396.62, and a special

assessment of $100 on each count ($400 in total).

       Barry’s timely appeal followed.

                                       II. Discussion

       Barry raises three issues on appeal: (1) that the government violated his due

process rights pursuant to Doyle v. Ohio by eliciting testimony at trial regarding his post-

arrest silence; (2) that his sentence was unreasonable because the intended loss

calculation equated potential loss with intended loss; and (3) that the District Court erred

by adding a 2-point enhancement for obstruction of justice.

                                    A. Doyle Violation




2
  For the purposes of sentencing, the District Court considered only the 81 cards found in
the van, whose aggregate limit was $675,170, as opposed to the 102 cards “that were part
of the investigation” (App. 590), whose aggregate limit was $863,015. This did not
affect the District Court’s application of the intended loss calculation, however, as in
either case, the value was in excess of $400,000 but less than $1 million, which would
result in a 14-level increase under U.S.S.G. § 2B1.1(b)(1).
                                              7
       Barry argues that his conviction should be vacated because the government

violated his due process rights pursuant to Doyle v. Ohio, 426 U.S. 610 (1976). Under

Doyle v. Ohio, a prosecutor violates a defendant’s due process rights when she questions

his post-arrest and post-Miranda silence to impeach his trial testimony. Id. at 611; see

also Hassine v. Zimmerman, 160 F.3d 941, 947 (3d Cir. 1998). Barry’s due process

violation claim is subject to plenary review. Gov’t of the Virgin Islands v. Davis, 561

F.3d 159, 163 (3d Cir. 2009). Doyle violations claims are then subject to harmless error

review. Gov’t of the Virgin Islands v. Martinez, 620 F.3d 321, 335 (3d Cir. 2010).

“Accordingly, we ask first whether a violation occurred and, if it did, we ask whether it

had an effect on the jury’s verdict beyond a reasonable doubt.” Id.

       In this case, we need not dwell on whether the government’s examination of

Officer Santoro was indeed a Doyle violation, because even if it was, it was harmless.

The government’s question to Officer Santoro that implicated Barry’s post-arrest, post-

Miranda silence was only asked once, and Barry’s objection was immediately sustained.

See United States v. Agee, 597 F.2d 350, 359 (3d Cir. 1979) (assuming that a question fell

within the Doyle proscription, but finding it harmless because “[t]his is not a case in

which repetitive questioning focused the jury’s attention on the defendant’s silence. . . .

Only a single question was involved here”). Nor did the government dwell on this

question during closing arguments.

       Furthermore, importantly, there was sufficient other evidence to suggest that Barry

was convicted for reasons other than the prosecutor’s possibly improper question. For

instance, three cooperating witnesses—Diallo, Aka, and Ndour—testified consistently

                                              8
that they had assisted Barry in a scheme to fraudulently purchase merchandise from Wal-

Mart stores throughout Pennsylvania and New Jersey since September 2008. The

government also presented surveillance photographs from a Wal-Mart that showed Barry,

as identified by Diallo, inside the Wal-Mart “doing his own thing” while Diallo used a

fraudulent card on January 19, 2009. (App. 211-13.) Additionally, police officers

discovered fraudulent credit cards in the seatbelt housing next to where Barry was seated.

       Given the overwhelming evidence—both testimonial and physical—that Barry

was indeed an active participant in the fraudulent scheme, the government’s question

regarding Barry’s post-arrest, post-Miranda silence—even if it was a Doyle violation—

was “harmless beyond a reasonable doubt.” United States v. Waller, 654 F.3d 430, 438

(3d Cir. 2011) (“When the error found is of a constitutional nature, a court may

nonetheless uphold the conviction if the error was ‘harmless beyond a reasonable

doubt.’” (citations omitted)).

                                      B. Sentencing

       We review a district court’s sentence for abuse of discretion in two stages. First,

we review for procedural error—for example, failing to correctly compute the Guidelines

range. United States v. Wright, 642 F.3d 148, 152 (3d Cir. 2011). If we find procedural

error at any step, we will generally “remand the case for re-sentencing without going any

further.” Id. (quoting United States v. Merced, 603 F.3d 203, 215 (3d Cir. 2010)). If

there is no procedural error, the second stage of our review is for substantive

reasonableness. Id.



                                             9
       If we decide that a district court misapplied the Guidelines, “a remand is

appropriate unless the reviewing court concludes, on the record as a whole, that the error

was harmless, i.e., that the error did not affect the district court’s selection of the sentence

imposed.” United States v. Smalley, 517 F.3d 208, 212 (3d Cir. 2008) (internal quotation

marks and citations omitted).

                                        1. Intended Loss

       In calculating the appropriate Guidelines range, the Sentencing Guidelines

mandate that a sentencing court increase the offense level according to a schedule of loss

amounts. U.S.S.G. § 2B1.1(b)(1). Sentencing courts are directed to use “the greater of

the actual or intended loss” in applying § 2B1.1(b).3 In this case, the District Court

equated the potential loss—$675,170, or the aggregate credit limits4—with the intended

loss, despite the fact that the actual loss was only $13,396.33. (PSR ¶ 13.) This resulted

in the District Court’s increasing Barry’s offense level by 14 points. U.S.S.G.




3
 Actual loss refers to the reasonably foreseeable pecuniary harm that actually occurred,
and intended loss refers to the loss which the offender intended, including harm that
would be unlikely or impossible to occur. U.S.S.G. § 2B1.1 app. n.3(A)(i) & (ii).
4
  The District Court relied on the testimony of Agent Wolfson for this figure. Barry
argues that the District Court’s decision to credit Agent Wolfson’s hearsay testimony was
erroneous, but this argument is unpersuasive. A sentencing judge may “consider
responsible unsworn or ‘out-of-court’ information relative to the circumstances of the
crime and to the convicted person’s life and characteristics,” Williams v. Oklahoma, 358
U.S. 576, 584 (1959), and a district court’s decision to credit hearsay testimony is subject
to clearly erroneous review, United States v. McGlory, 968 F.2d 309, 347 (3d Cir. 1992).
The District Court’s reliance on Agent Wolfson’s spreadsheets listing the applicable
credit limits for each card was not clearly erroneous.

                                              10
§ 2B1.1(b)(1) (loss of more than $400,000 but less than $1,000,000 results in the addition

of 14 points). The actual loss amount would have resulted in only a 4-point increase. Id.

          The District Court sentenced Barry on November 8, 2012 without the benefit of

our opinion in United States v. Diallo, 710 F.3d 147 (3d Cir. 2013). In Diallo, we

addressed a nearly identical situation in which the defendant traveled throughout

Virginia, Pennsylvania, New Jersey, and New York using fraudulent credit cards. Id. at

148. While the actual loss attributable to the defendant was $160,000, a Secret Service

case agent testified that the total credit limit of the credit cards was approximately $1.6

million. Id. at 149. Over the defendant’s objections, the government argued that this

figure should be the “intended loss” for the purposes of sentencing. Id. The district court

accepted the government’s arguments, and increased the defendant’s offense level by 16

points.

          On appeal, we considered “how sentencing courts should calculate what

‘pecuniary harm was intended to result’ from credit card fraud when the fraud’s

perpetrator did not know the credit limit, which is the potential loss amount from the

stolen credit card.” Id. at 150 (quoting U.S.S.G. § 2B1.1(b)(1) app. n.3 (A)(ii)). Looking

to United States v. Geevers, 226 F.3d 186 (3d Cir. 2000), we held that “‘[w]hile intended

loss may not be automatically determined based on what the potential loss is, intended

loss may still equal potential loss.’” Diallo, 710 F.3d at 151 (quoting Geevers, 226 F.3d

at 192). We noted, however, that “‘[i]t is clear that a district court errs when it simply

equates potential loss with intended loss without deeper analysis.’” Id. (quoting Geevers,

226 F.3d at 192). Instead, a burden-shifting framework is appropriate in such cases.

                                             11
“[T]hough the government bears the burden of proof in guidelines cases, the burden of

production may shift to the defendant once the government presents prima facie evidence

of a given loss figure.” Id. (quoting Geevers, 226 F.3d at 188).

       With respect to the defendant’s sentencing in Diallo, we found that the district

court had not engaged in the requisite “deeper analysis.” We noted that:

       [i]t is possible that the District Court relied on the Secret Service agent’s
       testimony that the search of his car uncovered a skimming device; the
       evidence that Diallo has traveled from Virginia to New York in order to use
       the fraudulent credit cards; that Diallo had already spent $160,000 and was
       continuing to make additional purchases; or that at the time of his arrest,
       Diallo had returned to a store where he had made $2,600 in purchases just
       one day prior. It is also conceivable that the District Court agreed with the
       Government’s argument that Diallo intended to charge up to the credit limit
       on every credit card number found in his possession. On the other hand,
       the District Court might simply have incorrectly presumed that the
       aggregate credit limit alone can make out a prima facie case for intended
       loss amount in credit card fraud. . . [W]e would be speculating as to what
       evidence or argument was the basis for the District Court’s finding that
       $1.6 million was Diallo’s intended loss amount.

Id. at 153. Accordingly, we remanded to the district court to determine the intended loss

amount and whether a departure was warranted based on the intended loss amount

overstating or understating the seriousness of the offense. Id. at 154.

       In this case, the District Court overruled Barry’s objection to the calculation

simply by stating: “We have overruled the objection. I do that based on the testimony

that I received here today, based on the arguments by both government and the defendant.

And having—appreciating the burden is on the government—proved this by a

preponderance of the evidence.” (App. 596-97.) This falls short of the “deeper analysis”

required under Diallo and Geevers. Furthermore, it is clear that this error affected the


                                             12
District Court’s sentence, as the District Court increased Barry’s offense level by 14

points, resulting in a Guidelines range of 41 and 51.5

       Accordingly, we will vacate Barry’s sentence and remand to allow the District

Court to engage in the “deeper analysis” required under our law to assess whether Barry

intended to charge up to the limit on each card. Diallo, 710 F.3d at 153.

                                 2. Obstruction of Justice

       Barry also objects to the District Court’s addition of a 2-point enhancement for

obstruction of justice. Under the Sentencing Guidelines, the offense level is to be

increased by 2 levels

       [i]f (1) the defendant willfully obstructed or impeded, or attempted to
       obstruct or impede, the administration of justice with respect to the
       investigation, prosecution, or sentencing of the instant offense of
       conviction, and (2) the obstructive conduct related to (A) the defendant’s
       offense of conviction and any relevant conduct; or (B) a closely related
       offense.

U.S.S.G. § 3C1.1. The official commentary identifies perjury as an example of conduct

warranting imposition of the enhancement. Id. at § 3C1.1 app. n.4(B).

       As we stated in United States v. Miller, 527 F.3d 54 (3d Cir. 2008), to trigger the

application of this enhancement, a defendant must give “false testimony concerning a

material matter with the willful intent to provide false testimony.” Id. at 75 (quoting

United States v. Dunnigan, 507 U.S. 87, 94 (2003)). The Supreme Court also addressed

this enhancement in United States v. Dunnigan, when it found that “[a] witness testifying


5
  Had the District Court considered the actual loss amount of $13,396.33, Barry’s offense
level would have been increased by 4 points, which would have resulted in a Guidelines
range of 10-16 months. (Appellant’s Br. at 18-19.)
                                             13
under oath or affirmation violates [the federal criminal perjury statute] if she gives false

testimony concerning a material matter with the willful intent to provide false testimony,

rather than as a result of confusion, mistake, or faulty memory.” 507 U.S. at 94.

Although it is preferable that the district court address each element of the alleged perjury

in a separate and clear finding, separate findings are not required by Dunnigan.

Dunnigan, 507 U.S. at 95; see also United States v. Boggi, 74 F.3d 470, 479 (3d Cir.

1996) (rejecting defendant’s argument that the district court must make an independent

finding of perjury under Dunnigan). Furthermore, a guilty verdict not set aside binds the

sentencing court to accept the facts necessarily implicit in the verdict. Id. at 478-79. We

review a district court’s factual finding of willful obstruction of justice for clear error.

United States v. Powell, 113 F.3d 464, 467 (3d Cir. 1997).

       Barry was on trial for credit card fraud and conspiracy to commit credit card fraud.

It is uncontested that Barry testified under oath. Furthermore, it is uncontested that he

provided testimony on material matters. The only question is whether that material

testimony was false, so as to warrant an enhancement. Barry testified, inter alia, that he

had not provided any co-conspirator with credit cards, which was contradicted by the

testimony of Diallo. (App. at 422, 199.) Barry also testified that he had no idea why the

van was stopping at Wal-Marts. (App. at 420.) Because a sentencing court is bound to

accept the facts necessarily implicit in the jury’s verdict, the District Court was bound to

accept that the jury found that Barry intended to defraud (an element of credit card fraud)

and that he knew the object of the conspiracy (an element of conspiracy). The jury’s

findings therefore confirm that it did not credit Barry’s testimony. See Boggi, 74 F.3d at

                                              14
478-79 (finding defendant’s testimony not credible, both in the court’s own judgment and

as a necessary implication of the jury’s verdict); see also United States v. Fiorelli, 133

F.3d 218, 221 (“[W]here the record establishes that the district court’s application of the

enhancement necessarily included a finding as to the elements of perjury, and those

findings are supported by the record, we will not remand merely because the district court

failed to engage in a ritualistic exercise and state the obvious for the record.” (internal

quotation marks and citation omitted)).

       At sentencing, the government’s burden is “preponderance of the evidence”—the

jury’s verdict demonstrates by a preponderance of the evidence that the jury discredited

at least some of Barry’s testimony and therefore warrants the District Court’s application

of the obstruction of justice enhancement.

                                       III. Conclusion

       For the reasons stated above, we will affirm the District Court’s judgment of

conviction and remand for re-sentencing for the deeper analysis regarding the

determination of intended loss required by our precedent.




                                              15
