       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2     United States v.               Nos. 03-5107/5189/5192
    ELECTRONIC CITATION: 2003 FED App. 0453P (6th Cir.)         Williams, et al.
                File Name: 03a0453p.06
                                                          Berry, ASSISTANT UNITED STATES ATTORNEY,
                                                          Memphis, Tennessee, for Appellee. ON BRIEF: Bruce I.
UNITED STATES COURT OF APPEALS                            Griffey, OFFICE OF BRUCE IRWIN GRIFFEY, Memphis,
              FOR THE SIXTH CIRCUIT                       Tennessee, Mary C. Jermann, OFFICE OF THE FEDERAL
                _________________                         PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF
                                                          TENNESSEE, Memphis, Tennessee, Jerry Stokes, Memphis,
                                                          Tennessee, for Appellants. Tracy L. Berry, ASSISTANT
 UNITED STATES OF AMERICA , X                             UNITED STATES ATTORNEY, Memphis, Tennessee, for
              Plaintiff-Appellee, -                       Appellee.
                                   -
                                   -  Nos. 03-5107/                           _________________
             v.                    -  5189/5192
                                    >                                             OPINION
                                   ,
 MICHELLE WILLIAMS                 -                                          _________________
 (03-5107); TANISHA JONES          -
                                                            DAMON J. KEITH, Circuit Judge. Defendants-Appellants
 WARD (03-5189); ROBERT            -
                                                          Michelle Williams (“Williams”) and Robert Kelly, III
 KELLY , III (03-5192),            -
                                                          (“Kelly”) appeal their sentences following the entry of guilty
        Defendants-Appellants. -                          pleas to identity theft, 18 U.S.C. § 1028(a)(7). Defendant-
                                   -
                                                          Appellant Tanisha Jones Ward (“Ward”) appeals her sentence
                                  N
                                                          following the entry of a guilty plea to identity theft, 18 U.S.C.
       Appeal from the United States District Court       § 1028(a)(7), and making a false statement, 18 U.S.C.
    for the Western District of Tennessee at Memphis.     § 1001(a)(2). Williams, Kelly, and Ward were involved in a
     No. 02-20151—Julia S. Gibbons, District Judge.       scheme that involved the use of false identifying information
                                                          to obtain home loans. The district court found that the
        Argued and Submitted: October 21, 2003            enhancement in § 2B1.1(b)(9)(C)(i) of the 2002 Sentencing
                                                          Guidelines for “the unauthorized transfer or use of a means of
        Decided and Filed: December 23, 2003              identification unlawfully to produce or obtain any other
                                                          means of identification” applied to Williams’s and Kelly’s
 Before: KEITH, DAUGHTREY, and GILMAN, Circuit            conduct. UNITED STATES SENTENCING GUIDELINES MANUAL
                    Judges.                               § 2B1.1(b)(9)(C)(i) (2002). Due to ex post facto concerns, the
                                                          district court sentenced Kelly and Ward using the 1998
                  _________________                       Sentencing Guidelines (in effect at the time of the crime)
                                                          rather than the 2002 Sentencing Guidelines (in effect at the
                       COUNSEL                            time of sentencing). Williams appeals the application of the
                                                          § 2B1.1(b)(9)(C)(i) enhancement. Kelly appeals the use of
ARGUED: Bruce I. Griffey, OFFICE OF BRUCE IRWIN           the 1998 Sentencing Guidelines, contending that the 2002
GRIFFEY, Memphis, Tennessee, for Appellants. Tracy L.     Sentencing Guidelines should be applied without the

                            1
Nos. 03-5107/5189/5192                  United States v.     3    4      United States v.                Nos. 03-5107/5189/5192
                                        Williams, et al.                 Williams, et al.

§ 2B1.1(b)(9)(C)(i) enhancement. Ward appeals the district        apply to her conduct. The government supported the
court’s refusal to depart downward due to her family              imposition of the enhancement because of Williams’s
circumstances, aberrant behavior, and her relative culpability    purchase and use of someone else’s social security number in
compared to the other defendants. For the reasons set forth       order to obtain two separate loans. According to the
below, we AFFIRM the sentences of Williams, Kelly, and            government, the bank loan number is equivalent to false
Ward.                                                             identification. Williams argued that the enhancement did not
                                                                  apply because she engaged in a single act - the signing of the
             I. FACTUAL BACKGROUND                                loan documents containing the false information. Williams
                                                                  maintained that she purchased a loan package from Mr. Green
  From on or about September 25, 1998, and continuing to on       and that she did not use the social security number in those
or about June 21, 2000, Terrell Green, Marcus Martin, and         documents to obtain additional false identification.
Thomas Anthony Taylor provided false identifying
information to persons who wanted to buy a house under a            After hearing the arguments of the parties, the district court
loan program administered by the Federal Housing                  rejected Williams’s position. According to the district court,
Administration (“FHA”). The data included a social security       § 2B1.1(b)(9) applied directly to the type of situation
number, employment information, and salary information.           Williams presented. The district court stated:
Purchasers such as Kelly and Williams signed loan
documents containing the false information and submitted              To elaborate further, with respect to the application of the
them to Community Mortgage Corporation (“CMC”) for the                guideline we’ve just been talking about, the court refers
federally guaranteed loans and the City of Memphis,                   to the guideline itself. The commentary application note
Tennessee Division of Housing and Community Development               nine, which refers to the definition of means of
for down payment assistance loans. On or about May 16,                identification, which is a very broad one, and
2000, Williams received loans from CMC and the City of                encompasses a bank loan which we might not ordinarily
Memphis valued in excess of $59,000. On or about May 19,              think of as being included by that language, would note
2000, Kelly received over $90,000 in loans. Ward acted as             also the Application Notes 7(C)(i) and 7(C)(ii) and then
the realtor in each of the loans. In addition, on or about June       the commentary background which discusses subsection
21, 2000, Ward used a false social security number, which she         (B)(9)(C) in some detail. It appears to me that that
received from Terrell Green, in order to apply for a FHA loan.        enhancement does apply.
   Williams entered a plea of guilty to violating 18 U.S.C.       J.A. at 159-160.
§ 1028(a)(7), through her use of Larmont F. White’s social
security number, in order to commit the federal felony              Kelly entered a guilty plea to the use of the social security
violations of social security fraud and making a false            number of Samuel Robert DeMoya. In objecting to the
statement within the jurisdiction of an agency of the United      presentence investigation report, Kelly argued that the two-
States. On December 2, 2002, Williams filed objections to the     point enhancement for more than minimal planning was not
presentence report. At the sentencing hearing, Williams           appropriate. On December 6, 2002, Kelly supplemented his
argued that the two-point enhancement pursuant to                 objections contending that the probation office erred in using
§ 2B1.1(b)(9)(C)(i) of the 2002 Sentencing Guidelines did not     the 1998 Sentencing Guidelines. Kelly contended that the
Nos. 03-5107/5189/5192                  United States v.     5    6     United States v.               Nos. 03-5107/5189/5192
                                        Williams, et al.                Williams, et al.

2002 Sentencing Guidelines should be used, but that the use         On or about July 3, 2002, Ward entered a plea admitting to
of the 2002 Sentencing Guidelines should exclude the              the use of the social security number of Allison Campbell and
enhancement pursuant to § 2B1.1(b)(9)(C)(i).                      to making a false statement to a department of the United
                                                                  States. Unlike Williams and Kelly, Ward urged the district
  At the sentencing hearing, Kelly conceded that the use of       court to depart downward from the applicable guideline range
another’s social security number created a potential for harm     by contending that her family circumstances were
to that individual. Nonetheless, Kelly argued that the            extraordinary, her criminal conduct was aberrant behavior,
§ 2B1.1(b)(9)(C)(i) enhancement applied only if the loan was      and she was less culpable than some of the other co-
in the name of the individual whose social security number        defendants. The government responded by asking the district
was stolen. Kelly stressed the fact that he was trying to get a   court to recognize that the four-level enhancement received
home loan for himself, not run a scam and split with the          by the organizer of the activity provided adequate
money. In the alternative, Kelly argued that, under the 1998      consideration for the difference between their roles in the
Sentencing Guidelines, the enhancement for more than              criminal conduct. The government also noted that the
minimal planning was not appropriate because the facts            conduct occurred over a two-year period and that Ward’s lack
presented a simple case. The government supported the use         of criminal history was already taken into account in
of the 1998 Sentencing Guidelines due to ex post facto            determining the guideline range.
concerns. Specifically, the government contended that the
use of the 2002 Sentencing Guidelines would require the              The district court found that the facts of Ward’s case did
enhancement proscribed in § 2B1.1(b)(9)(C)(i) as a result of      not support a downward departure. In reaching its decision,
the commentary background to § 2B1.1 and application notes        the district court found that: Ward’s family responsibilities
7(C)(i), 7(C)(ii), and 9 for that guideline section. The          were not so extraordinary as to suggest the need for a
§ 2B1.1(b)(9)(C)(i) enhancement would have put Kelly in a         downward departure; the importance of payment of restitution
higher guideline range than would be applicable under the         did not override the need to serve a term of imprisonment;
1998 Sentencing Guidelines, even with the enhancement for         Ward was more culpable than the individual defendants who
more than minimal planning.                                       applied for loans themselves due to her integral role in the
                                                                  transactions; and the conduct was too repeated and extensive
  In finding that the 1998 Sentencing Guidelines applied, the     in terms of the period of time in order to constitute aberrant
district court rejected Kelly’s attempt to prevent the            behavior. Further, the district court found that the
application of § 2B1.1(b)(9)(C)(i) on the basis that Kelly used   aggregation of circumstances and factors was not sufficient to
his own name rather than the name of the individual whose         take the case “out of the heartland” and thereby justify a
social security number he appropriated. According to the          downward departure.
district court, the commentary application notes and the
commentary background made clear that the enhancement                                   II. DISCUSSION
would apply under the facts of the case at bar. The district
court explained that even if the name was not used, there           In reviewing a district court's application of the Sentencing
would still be harm to the credit of the person whose social      Guidelines, we "accept the findings of fact of the district court
security number was used. The district court found that the       unless they are clearly erroneous and . . . give due deference
minimum offense level of 12 would apply in Williams’s case.       to the district court’s application of the guidelines to the
Nos. 03-5107/5189/5192                  United States v.     7    8     United States v.               Nos. 03-5107/5189/5192
                                        Williams, et al.                Williams, et al.

facts." 18 U.S.C. § 3742(e). In light of Buford v. United         defendant uses another individual’s name, social security
States, 532 U.S. 59, 63-66 (2001), this court has held that our   number, or some other form of identification (the “means of
standard of review of a district court's application of           identification”) to “breed” (i.e., produce or obtain) new or
provisions of the Sentencing Guidelines to the facts should be    additional forms of identification.            UNITED STATES
treated deferentially and should not be disturbed unless          SENTENCING GUIDELINES MANUA L § 2B1.1, cmt. background
clearly erroneous. United States v. Jackson-Randolph, 282         (2002). Section 2B.1.1(b)(9)(C)(i) of the Sentencing
F.3d 369, 389-90 (6th Cir.2002) (holding that the Supreme         Guidelines authorizes a two-level increase in a defendant’s
Court's reasoning in Buford leads to the use of a deferential     base offense level in cases in which the defendant has
standard of review in the application of the Sentencing           unlawfully used any means of identification without
Guidelines under circumstances involving fact-bound               authorization to produce or obtain any other means of
determinations).                                                  identification. UNITED STATES SENTENCING GUIDELINES
                                                                  MANUAL § 2B1.1(b)(9)(C)(i) (2002). If after the two-level
A. Section 2B1.1(b)(9)(C)(i) enhancement                          increase, the offense level is less than level 12, then the
                                                                  offense level is to be increased to level 12. Id. The minimum
   On October 30, 1998, Congress enacted the Identity Theft       offense level of 12 accounts for the seriousness of the offense
and Assumption Deterrence Act of 1998 (“ITADA”), Pub. L.          as well as the difficulty in detecting the crime prior to certain
No. 105-318. The ITADA amended the fraud chapter of title         harms occurring, such as a damaged credit rating or an
18 of the United States Code to create a new crime                inability to obtain a loan. UNITED STATES SENTENCIN G
prohibiting the unlawful use of personal identifying              GUIDELINES MANUA L § 2B1.1, cmt. background (2002). The
information, including, but not limited to, names, social         minimum offense level also accounts for the non-monetary
security numbers, and credit card numbers. Identity fraud         harm associated with these types of offenses, such as harm to
involves the misappropriation of another person’s personal        the individual’s reputation or credit rating, inconvenience, and
identifying information. Criminals use this information to        other difficulties resulting from the offense. Id.
establish credit in their name, run up debts on another
person’s account, or take over existing financial accounts.          The sentencing court found that the § 2B1.1(b)(9)(C)(i)
The ITADA directed the Sentencing Commission to “review           enhancement applied because Williams and Kelly used a
and amend the Federal sentencing guidelines and the policy        means of identification, i.e., a social security number of
statements of the Commission, as appropriate, to provide an       another, to obtain another means of identification, i.e., a bank
appropriate penalty for each offense under section 1028 of        loan number. Appellants argue that the enhancement was
title 18, United States Code, as amended by this Act.”            inapplicable to their conduct. Specifically, Williams argues
Identity Theft and Assumption Deterrence Act of 1998, Pub.        that the bank loan number is not the equivalent of a false
L. No. 105-318 § 4(a), 112 Stat. 3007 (codified in 28 U.S.C.      identification, and that she purchased the entire loan package,
§ 994 note).                                                      not a social security number. Thus, according to Williams,
                                                                  the social security number in those documents was not used
   Subsection 2B1.1(b)(9)(C) of the Sentencing Guidelines         to obtain additional false identification. Kelly argues that the
was implemented pursuant to Section 4 of the ITADA. It            enhancement does not apply to his conduct because he
focuses on an aggravated from of identity theft known as          obtained the bank loan in his own name. Each of these
“affirmative identity theft” or “breeding,” in which a            arguments will be addressed in turn.
Nos. 03-5107/5189/5192                     United States v.       9    10   United States v.                Nos. 03-5107/5189/5192
                                           Williams, et al.                 Williams, et al.

    “‘Means of identification’ has the meaning given that term         unlawfully.” UNITED STATES SENTENCING GUIDELINES
in 18 U.S.C. § 1028(d)(4), except that such means of                   MANUA L § 2B1.1, cmt. n. 7(C)(ii)(II) (2002).
identification shall be of an actual (i.e., not fictitious
individual), other than the defendant or a person for whose               The Sentencing Guidelines also set forth examples of
conduct the defendant is accountable under § 1B1.3 (Relevant           conduct to which subsection (b)(9)(C)(i) does not apply. The
Conduct).” UNITED STATES SENTENCING GUIDELINES                         first example involves a defendant’s use of a credit card from
MANUAL § 2B1.1, cmt. n. 7(A) (2002). Under 18 U.S.C.                   a stolen wallet “only to make a purchase.” UNITED STATES
§ 1028(d)(4), “the term ‘means of identification’ means any            SENTENCING GUIDELINES MANUAL § 2B1.1, cmt. n.
name or number that may be used, alone or in conjunction               7(C)(iii)(I). The Sentencing Guidelines make clear that in
with any other information, to identify a specific individual.”        that case, the defendant “has not used the stolen credit card to
18 U.S.C. 1028(d)(3) (emphasis added). “Means of                       obtain another means of identification.” Id. The second
identification” includes, inter alia, a name, social security          example applies to a defendant who “forges another
number, unique electronic identification number, or                    individual’s signature to cash a stolen check. Forging another
telecommunication identifying information or access device             individual’s signature is not producing another means of
as defined in 18 U.S.C. § 1029(e).                    18 U.S.C.        identification.” UNITED STATES SENTENCING GUIDELINES
§ 1028(d)(3)(A)-(D). “[T]he term ‘access device’ means any             MANUA L § 2B1.1, cmt. n. 7(C)(iii)(II).
. . . account number . . . or other means of account access that
can be used, alone or in conjunction with another access                 In this case, Williams and Kelly each used the social
device, to obtain money, goods, services, or any other thing           security number of someone else to obtain home loans in their
of value, or that can be used to initiate a transfer of funds . . .”   own names. Kelly argues that the bank loan number is not
18 U.S.C. § 1029(e)(1).                                                another “means of identification.” As a bank loan number is
                                                                       an account number that can be used to obtain money,
  In providing guidance for the applicability of § 2B1.1(b)(9),        however, it is a “means of identification” as that term is
the Sentencing Commission set forth examples of conduct to             defined in 18 U.S.C. § 1028. Further, the first example in the
which the subsection would apply. The first example, which             commentary specifically provides that “the account number
is most applicable to this situation, provides for the                 of the bank loan is the other means of identification that has
imposition of the enhancement when “[a] defendant obtains              been obtained unlawfully.” UNITED STATES SENTENCING
an individual’s name and social security number from a                 GUIDELINES MANUA L § 2B1.1(b)(9)(C)(i), cmt. n. 7(C)(ii)(I).
source . . . and obtains a bank loan in that individual’s name.        Accordingly, Kelly’s argument that a bank loan number is not
In this example, the account number of the bank loan is the            a “means of identification” lacks merit.
other means of identification that has been obtained
unlawfully.” UNITED STATES SENTENCING GUIDELINES                          Williams and Kelly both argue that their situation is
MANUAL § 2B1.1, cmt. n.7(C)(ii) (2002). In the second                  different from the one in the example about the bank loan
example, a defendant obtains an individual’s personal                  because they obtained the loans in their own names and,
information, such as a name and address, and “applies for,             therefore, did not use the social security number and name of
obtains, and subsequently uses a credit card in that                   someone else. Thus, according to Williams and Kelly, their
individual’s name. In this example, the credit card is the             situation is more analogous to making a purchase with a
other means of identification that has been obtained                   stolen credit card. While the defendant in the example used
Nos. 03-5107/5189/5192                   United States v.     11    12   United States v.                Nos. 03-5107/5189/5192
                                         Williams, et al.                Williams, et al.

two means of identification in order to obtain the bank loan,       instances. Williams knew that the loan package included a
the definition of “means of identification” provided in 18          social security number other than her own and that the social
U.S.C. § 1028 does not require that a name and social security      security number would be used to obtain the loan.
number be used together in order for them to become a               Accordingly, the sentencing court did not err in finding that
“means of identification.” To the contrary, it states that any      the § 2B1.1(b)(9)(C)(i) enhancement applied to Williams’s
name or number may be used “alone or in conjunction with            and Kelly’s conduct.
any other information, to identify a specific individual.”
18 U.S.C. 1028(d)(3) (emphasis added). A social security            B. Ex post facto considerations
number is clearly defined as a “means of identification” and,
thus, its use to obtain a loan falls within the scope of the           If a district court determines that use of the version of the
statute and the Sentencing Guidelines even if another form          Sentencing Guidelines in effect on the date of sentencing
was not used. 18 U.S.C. § 1028(d)(3).                               would violate the ex post facto clause, the version of the
                                                                    Sentencing Guidelines in effect on the date the offense of
   Further, unlike the use of a stolen credit card to make a        conviction was committed should be used. UNITED STATES
purchase, obtaining a bank loan involves the opening of a new       SENTENCING GUIDELINES MANUA L § 1B1.11(b)(1) (2002). In
line of credit. Opening a new line of credit, as opposed to         this case, Kelly was sentenced on January 17, 2003. The facts
using a line of credit that already exists, is what distinguishes   revealed that Kelly used the fraudulent social security number
the first set of examples, where the enhancement applies,           when he applied for a home loan on or about May 22, 2000.
from the second set of examples, where the enhancement does         The district court applied the 1998 Sentencing Guidelines to
not apply. In the examples where the enhancement applies,           Kelly’s conduct because it determined that the 2002
a bank loan that did not otherwise exist is created and a new       Sentencing Guidelines would result in a higher offense level.
credit card is obtained. In the examples where the                  The court’s finding was based on the fact that the
enhancement does not apply, the defendant used an existing          § 2B1.1(b)(9)(C)(i) enhancement would apply if the 2002
credit card to make a purchase and cashed a check from an           Sentencing Guidelines were utilized. With the enhancement,
existing bank account. Thus, while the use of someone’s             the adjusted offense level using the 2002 Sentencing
credit card to make a purchase is a punishable offense, the         Guidelines is 12 while the 1998 Sentencing Guidelines results
nature of the harm is different from that which results from        in an offense level of 9. As previously discussed, the
using someone’s identifying information to establish new            § 2B1.1(b)(9)(C)(i) enhancement was applicable to Kelly’s
credit.                                                             conduct. Accordingly, the district court did not err in using
                                                                    the 1998 Sentencing Guidelines due to ex post facto concerns.
   Finally, Williams’s argument that she bought a loan
package and not a social security number and, thus, that her        C. District court’s refusal to grant Ward’s downward
conduct is not within the purview of the enhancement, is               departure
similarly without merit. Whether Williams bought the social
security number as part of a package that was used to procure         Generally, we will not “review a district court’s refusal to
a loan or bought the social security number and used it to fill     exercise its discretion to grant a downward departure.”
out a loan application is irrelevant. The harm to the person        United States v. Ridge, 329 F.3d 535, 544 (6th Cir. 2003).
whose social security number was used is the same in both           We do have jurisdiction, however, to review a district court's
Nos. 03-5107/5189/5192                  United States v.    13    14   United States v.               Nos. 03-5107/5189/5192
                                        Williams, et al.               Williams, et al.

belief “that it lacked any authority to depart downward as a      argument, Judge Gibbons stated: “You know, I don’t really
matter of law.” Id. (quoting United States v. Ebolum, 72 F.3d     have a lot of flexibility in this case. And that doesn’t mean I
35, 37 (6th Cir.1995)). We review de novo whether the             don’t recognize my ability to depart downward, because I
district court was aware of its authority to make a downward      do.” J.A. at 251. After consideration of all of Ward’s
departure, examining the transcript of the sentencing hearing     arguments for downward departure, Judge Gibbons stated:
to make this determination. Id. We presume that the
sentencing court has properly exercised its discretion when it      The factors are just not here for a downward departure
decides that a departure is not warranted, as “there is no duty     that take this case out of the norm of cases. A number of
on the trial judge to state affirmatively that he knows he          the factors that you’ve mentioned are already covered in
possesses the power to make a downward departure, but               the guidelines, a number of others. The facts in this case
declines to do so.” United States v. Byrd, 53 F.3d 144, 145         just don’t warrant a downward departure on that basis,
(6th Cir.1995).                                                     even when all the factors are considered together.

   In its introduction to the Sentencing Guidelines, the          J.A. at 255. As the sentencing court was aware of its
Sentencing Commission states that it “intends the sentencing      authority to depart, Ward lacks a basis to challenge the
courts to treat each guideline as carving out a ‘heartland,’ a    sentencing court’s denial of her motion for a downward
set of typical cases embodying the conduct that each guideline    departure.
describes. When a court finds an atypical case, one to which
a particular guideline linguistically applies but where conduct                           CONCLUSION
significantly differs from the norm, the court may consider
whether a departure is warranted.” UNITED STATES                   For the foregoing reasons, we AFFIRM the sentences of
SENTENCING GUIDELINES MANUA L ch. 1, pt. A, subpt. 4(b)           Williams, Kelly, and Ward.
(2002). By statute, a district court may sentence outside the
prescribed guideline range if “there exists an aggravating or
mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result
in a sentence different from that described.” 18 U.S.C.
§ 3553(b); UNITED STATES SENTENCING GUIDELINES
MANUA L § 5K2.0 (2002).
  In this case, a de novo review of the transcript from Ward’s
sentencing hearing reveals that the district court explicitly
recognized that it possessed the discretion to depart
downward. The government argued that “while the court
does have the ability to give a downward departure in this
case, that the conduct is not outside the heartland.” J.A. at
250. After defense counsel’s response to the government’s
