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

                                                                 FILED
                                                                August 20, 2008
                               No. 07-30830
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

JOSEPH R BARTHOLOMEW, III

                                          Defendant-Appellant


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                           USDC No. 2:05-CR-159-1


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Joseph R. Bartholomew, III, appeals the sentence imposed following his
conviction of conspiracy to possess, steal, and embezzle United States Treasury
checks, forging endorsements on United States Treasury checks, theft of mail
matter, and theft of mail matter by an officer or employee, in violation of 18
U.S.C. §§ 371, 510(b)(2), and 1709. He argues that the district court erred at
sentencing by increasing his offense level by two levels pursuant to U.S.S.G.
§ 2B1.1(b)(10)(C)(i) (2006) based on the finding that the offense involved “the

      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                  No. 07-30830

unauthorized transfer of any means of identification unlawfully to produce or
obtain any other means of identification,” increasing his offense level by four
levels pursuant to U.S.S.G. § 2B1.1(b)(2)(B) based on the finding that the offense
involved 50 or more victims, and increasing the offense levels by two levels based
on U.S.S.G. § 3B1.1(c) after finding that Bartholomew was an organizer, leader,
manager, or supervisor in the criminal activity.
      Regarding § 2B1.1(b)(10)(C)(i), Bartholomew argues that this guideline
applies where someone steals another person’s identity and attempts to establish
new credit. He argues that he and his coconspirators were merely trying to
produce identification to allow them to cash stolen checks and that the guideline
does not reach this type of conduct. Although Bartholomew challenged the
application of § 2B1.1(b)(10)(C)(i) in the district court, he did not present to the
district court the same argument that he presents to this court regarding this
issue. Plain error review therefore governs this issue. See United States v.
Green, 324 F.3d 375, 381 (5th Cir. 2003). This court may correct the sentencing
determination only if (1) there is an error, (2) that is plain, meaning an error
that is clear under current law, and (3) it affects substantial rights. See United
States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007), cert. denied, 2008 WL 227315
(June 23, 2008) (No. 07-8978); United States v. Molina, 469 F.3d 408, 411 (5th
Cir. 2006). The decision to correct the error is within the sound discretion of this
court and this court should not correct the error unless it “seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Peltier, 505 F.3d
at 392.
      Section § 2B1.1(b)(10)(C)(i) provides that the offense level is increased by
two levels if the offense involved “the unauthorized transfer or use of any means
of identification unlawfully to produce or obtain any other means of
identification.” § 2B1.1(b)(10)(C)(i). The guideline focuses on an aggravated
form of identity theft where a defendant uses another individual’s name, social
security number, or some other form of identification to produce or obtain new

                                         2
                                  No. 07-30830

or additional forms of identification. § 2B1.1, comment. (background). Evidence
establishes that Bartholomew’s offense involved unauthorized use of a name
taken from Treasury checks that Bartholomew, a postal worker, stole, to produce
false identification using that name. As the guideline language indicates that
§ 2B1.1(b)(10)(C)(i) is properly applied where an offense involves unauthorized
use of a name to produce false identification, the guideline language indicates
that § 2B1.1(b)(10)(C)(i) was properly applied in this case. Bartholomew does
not cite contrary authority. The district court therefore did not commit plain
error when it applied § 2B1.1(b)(10)(C)(i).       See Molina, 469 F.3d at 411
(observing that in plain error review there must be error that is clear under
existing law).
      Bartholomew argues, as he did in the district court, that the district court
erred when it determined that a four-level offense level increase pursuant to
§ 2B1.1(b)(2)(B) was applicable because the offense involved 50 or more victims.
A “special rule” provides that, in cases involving undelivered U.S. mail that
involve a United State Postal Service relay box, collection box, delivery vehicle,
satchel, or cast, the offense “shall be considered” to have at least 50 victims.
§ 2B1.1(2)(B), comment. (n.4(C)(ii)(I)).     A district court’s interpretation or
application of the Sentencing Guidelines is reviewed de novo, and its factual
findings are reviewed for clear error. See United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008). Trial testimony established that Bartholomew
used his mail delivery vehicle in the offense. As the offense involved a postal
service delivery vehicle, the determination that the offense involved at least 50
victims is plausible in light of the record.       See § 2B1.1(2)(B), comment.
(n.4(C)(ii)(I)); Cisneros-Gutierrez, 517 F.3d at 764. The district court did not err
in its application of § 2B1.1(b)(2)(B). See Cisneros-Gutierrez, 517 F.3d at 764.
      Bartholomew argues, as he did in the district court, that the district court
erred when it increased his offense level by two levels pursuant to § 3B1.1(c).
He argues that the record is devoid of evidence indicating that he was an

                                         3
                                 No. 07-30830

organizer, leader, manager, or supervisor, asserting that his role was simply to
provide stolen checks. Bartholomew had access to the checks and was the
supplier of the tools of the conspiracy. Moreover, Bartholomew exercised control
over the conspiracy and provided instructions regarding the conspiracy. Thus,
the district court’s findings are plausible in light of the record.         See
Cisneros-Gutierrez, 517 F.3d at 764.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




                                       4
