                Case: 13-11863       Date Filed: 07/07/2014       Page: 1 of 11




                                                                                   [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-11863
                               ________________________

                          D.C. Docket No. 1:12-cr-20806-UU-1



UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,

versus

JEAN BAPTISTE CHARLES,

                                                          Defendant - Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                        (July 7, 2014)

Before HULL, COX and FARRIS, * Circuit Judges.

HULL, Circuit Judge:
         *
        Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
              Case: 13-11863    Date Filed: 07/07/2014    Page: 2 of 11


      After a guilty plea, Defendant-Appellant Jean Baptiste Charles appeals his

18 months’ sentence on Count One of his indictment for conspiring to use

unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(2) and (b)(2).

Specifically, Charles argues that in calculating his offense level for Count One, the

district court committed legal error by including a two-level increase for trafficking

in unauthorized access devices under U.S.S.G. § 2B1.1(b)(11)(B). After careful

review of the record and the briefs, and with the benefit of oral argument, we

vacate Charles’s sentence on Count One and remand for proceedings consistent

with this opinion.

                                I. BACKGROUND

A.    Offense Conduct

      During a traffic stop of a rental car driven by Charles, law enforcement

officers found ten prepaid debit cards issued in the names of individuals other than

Charles. One of the ten prepaid debit cards was in the possession of Allen Bien-

Aime, a passenger in the car. Charles and Bien-Aime used the prepaid debit cards

to withdraw money from ATMs or to buy money orders from Western Union.

      Bank records revealed that the ten prepaid debit cards were loaded with tax-

refund monies sent by the Internal Revenue Service (“IRS”) in response to

fraudulent tax returns submitted in the names of 25 individuals. A search of

Charles’s cellphone discovered an exchange of text messages in which Charles


                                          2
              Case: 13-11863      Date Filed: 07/07/2014   Page: 3 of 11


admitted to having filed tax returns in other people’s names without their

authorization. And, four months later, law enforcement officers found Charles in

possession of lists containing the names, dates of birth, and social security numbers

of individuals other than Charles.

B.     Indictment and Guilty Plea

       Charles pled guilty to Count One, which charged that Charles conspired with

Biene-Aime and others “to commit violations of Title 18, United States 1029(a)(2),

namely, to knowingly, and with intent to defraud, traffic in and use one or more

unauthorized access devices during any one-year period,” in violation of 18 U.S.C.

§ 1029(b)(2). The statutory maximum penalty for Charles’s offense in Count One

is five years’ imprisonment. See 18 U.S.C. § 1029(b)(2) and (c)(1)(A)(i).

       Charles also pled guilty to aggravated identity theft in Count Five, which

charged that Charles, during and in relation to the § 1029(a)(2) and (b)(2) felony in

Count One, “did knowingly transfer, possess, and use, without lawful authority, the

means of identification of another person,” in violation of § 1028A. The term

“means of identification” includes an “access device,” see 18 U.S.C. § 1028(d)(7),

such as the prepaid debit cards at issue here, see 18 U.S.C. § 1029(e)(1)

(explaining that “the term ‘access device’ means any card . . . that can be used . . .

to obtain money, goods, services, or any other thing of value, or that can be used to

initiate a transfer of funds”).


                                           3
               Case: 13-11863      Date Filed: 07/07/2014      Page: 4 of 11


       For Charles’s aggravated identity theft offense in Count Five, § 1028A(a)(1)

“mandates an additional consecutive two-year term of imprisonment for a

defendant convicted of certain predicate crimes if, during (or in relation to) the

commission of those other crimes, the offender ‘knowingly transfers, possesses, or

uses, without lawful authority, a means of identification of another person.’”

United States v. Cruz, 713 F.3d 600, 605 (11th Cir.) (quoting 18 U.S.C.

§ 1028A(a)(1)), cert. denied, 133 S. Ct. 2788 (U.S.) and cert. denied, 134 S. Ct.

213 (U.S. 2013).1 This Court has held already that a defendant’s “convictions

under 18 U.S.C. § 1029(a)(2) for defrauding by using an unauthorized access

device are predicate offenses for § 1028A purposes.” Id. at 605 (citing 18 U.S.C.

§ 1028A(c)(4)). The same is true for the § 1029(b)(2) offense of conspiring to

commit violations of § 1029(a)(2). Therefore, Charles’s conviction in Count One

was a predicate crime for Charles’s § 1028A conviction in Count Five.

C.     Sentencing

       For Count Five, the presentence investigation report (“PSR”) stated that

Charles’s § 1028A(a)(1) offense has a statutory mandatory two-year prison term

and is excluded from the grouping rules in the guidelines. No one objected to this

statement. Accordingly, the district court sentenced Charles to 24 months’

       1
         See also 18. U.S.C. § 1028A(b)(3) (providing that “no term of imprisonment imposed on
a person under [§ 1028A] shall run concurrently with any other term of imprisonment imposed
on the person under any other provision of law, including any term of imprisonment imposed for
the felony during which the means of identification was transferred, possessed, or used”).
                                              4
              Case: 13-11863    Date Filed: 07/07/2014    Page: 5 of 11


imprisonment on Count Five to run consecutively to any sentence imposed for

Count One.

       For Count One, the PSR calculated an offense level of 18 consisting of:

(1) a base offense level of six, pursuant to U.S.S.G. § 2B1.1(a)(2); (2) an eight-

level increase because the loss amount was greater than $70,000, pursuant to

§ 2B1.1(b)(1)(E); (3) a two-level increase because the offense involved ten or more

victims, pursuant to § 2B.1(b)(2)(B); and (4) a two-level increase for the

production or trafficking of unauthorized devices under § 2B1.1(b)(11)(B).

Combined with a criminal history category of I, the total offense level of 18

yielded an advisory guidelines range of 27 to 33 months’ imprisonment for Count

One.

       After Charles objected to the two-level increase for production or trafficking

under § 2B1.1(b)(11)(B), the district court ruled that this increase was warranted

because Charles transferred one of the prepaid debit cards to Bien-Aime and

thereby “trafficked” an unauthorized access device.

       Concluding that Charles had accepted responsibility for his actions, the

district court reduced Charles’s offense level by three levels, pursuant to U.S.S.G.

§ 3E1.1(a) and (b). This reduction dropped Charles’s offense level for Count One

from 18 to 15, resulting in an advisory guidelines range of 18 to 24 months’




                                          5
              Case: 13-11863     Date Filed: 07/07/2014   Page: 6 of 11


imprisonment. The district court ultimately sentenced Charles to 18 months’

imprisonment on Count One.

      Charles timely appealed the inclusion of the two-level increase for

“trafficking” unauthorized access devices under § 2B1.1(b)(11)(B) in the district

court’s guidelines calculation for Count One.

                                 II. DISCUSSION

A.    Alleyne v. United States

      In his brief, Charles argues that the district court erred under Alleyne v.

United States, 570 U.S. ___, ____, 133 S. Ct. 2151 (2013) when it refused to

submit the applicability of the § 2B1.1(b)(11)(B) increase to a jury. Charles’s

claim lacks merit because Alleyne does not apply to his case.

      In Apprendi v. New Jersey, the Supreme Court held that a fact, other than a

prior conviction, that increases the maximum penalty for a crime is an element of

the crime that must be submitted to a jury. 530 U.S. 466, 490–91, 120 S. Ct. 2348.

2362-63 (2000). In Alleyne, the Supreme Court extended Apprendi’s holding to

facts, other than a prior conviction, that increase the mandatory minimum

prescribed by a statute, while recognizing that such facts are distinct from fact-

findings that guide judicial discretion in selecting a punishment within limits fixed

by law. Alleyne, 133 S. Ct. at 2161 & n.2. Indeed, the Supreme Court cautioned




                                          6
              Case: 13-11863     Date Filed: 07/07/2014     Page: 7 of 11


that its holding did not disturb judicial fact findings at sentencing for facts that do

not impact the statutory punishment. See id. at 2163.

      Accordingly, a district court may continue to make guidelines calculations

based upon judicial fact findings and may enhance a sentence—so long as its

findings do not increase the statutory maximum or minimum authorized by facts

determined in a guilty plea or jury verdict. See United States v. McGarity, 669

F.3d 1218, 1257 (11th Cir. 2012) (concluding that under an advisory guidelines

regime, judicial fact-findings that support a sentence within the statutory maximum

set forth in the United States Code do not violate the Sixth Amendment); United

States v. Dean, 487 F.3d 840, 854 (11th Cir. 2007). Because the two-level increase

here affected only Charles’s guidelines calculation and not his statutory mandatory

minimum or maximum, Charles’s reliance on Alleyne is misplaced.

      We now turn to whether the district court properly applied the

§ 2B1.1(b)(11)(B) increase to Charles’s guidelines calculation.

B.    Trafficking in Unauthorized Access Devices

      Guidelines § 2B1.1 applies to, inter alia, offenses involving fraud, deceit,

forgery, and altered or counterfeit instruments, including Charles’s § 1029(a)(2)

and (b)(2) offense for conspiracy to use unauthorized access devices in Count One.

See U.S.S.G. § 2B1.1, commentary (listing statutory provisions). Specifically,

§ 2B1.1(b)(11)(B) increases a defendant’s offense level by two levels when “the


                                           7
              Case: 13-11863     Date Filed: 07/07/2014    Page: 8 of 11


offense involved . . . the production or trafficking of any . . . unauthorized access

device.” U.S.S.G. § 2B1.1(b)(11)(B)(i) (emphasis added). This “trafficking”

language was the basis for the district court’s two-level increase to Charles’s Count

One offense. As noted above, the district court found that Charles transferred one

of the prepaid debit cards to Bien-Aime and thereby “trafficked” an unauthorized

access device under § 2B1.1(b)(11)(B)(i).

       However, given Charles’s sentence for aggravated identity theft in Count

Five, the district court’s inclusion of the § 2B1.1(b)(11)(B) two-level increase for

this transfer (i.e., the “trafficking”) in the offense level calculation for Count One

was legal error under the guideline rules themselves. We explain why.

      For Count Five, Charles received the statutory, two-year consecutive

sentence mandated for aggravated identity theft offenses under § 1028A(a)(1).

Guidelines § 2B1.6 applies to violations of § 1028A and expressly provides that

the guideline sentence for a defendant convicted under § 1028A “is the term of

imprisonment required by statute.” U.S.S.G. § 2B1.6(a). Importantly, Application

Note 2 to § 2B1.6 then explains how the § 2B1.6 guideline interacts with other

guidelines, stating: “If a sentence under [§ 2B1.6] is imposed in conjunction with a

sentence for an underlying offense, do not apply any specific offense characteristic

for the transfer, possession, or use of a means of identification when determining

the sentence for the underlying offense.” U.S.S.G. § 2B1.6 cmt. n.2 (emphasis


                                           8
               Case: 13-11863        Date Filed: 07/07/2014      Page: 9 of 11


added). The reason given for this guidelines rule is that “[a] sentence under

[§ 2B1.6] accounts for this factor for the underlying offense of conviction,

including any such enhancement that would apply based on conduct for which the

defendant is accountable under § 1B1.3 (Relevant Conduct).” Id. Thus, “when a

defendant receives the two-year consecutive sentence on the [aggravated] identity

theft count [under §1028A], h[is] sentence for any underlying offense is not

eligible for a 2-level increase for transfer, possession, or use of false

identification.” Cruz, 713 F.3d at 607 (quotation marks omitted). 2

       Under the directive of Application Note 2, the mandated two-year

consecutive sentence Charles received for the Count Five § 1028A offense already

accounted for Charles’s transfer of the debit card (the “means of identification”) to

Bien-Aime when determining the sentence for the underlying § 1029(a)(2) and

(b)(2) offense in Count One. Therefore, the district court’s application of the two-

level increase for Count One under § 2B1.1(b)(11)(B) for Charles’s transferring an

access device (the prepaid debit card) to Bien-Aime ran afoul of § 2B1.6’s

prohibition against applying a “specific offense characteristic for the transfer . . .

of a means of identification when determining the sentence for the underlying

offense,” here Count One. U.S.S.G. § 2B1.6 cmt. n.2.

       2
        This statement in Cruz would wholly resolve the issue here; however, we note that it is
dicta because Cruz did not involve an increase for “trafficking.” Cruz involved the possession of
“device-making equipment,” another ground for a two-level increase under § 2B1.1(b)(11). See
713 F.3d at 605.
                                                9
             Case: 13-11863      Date Filed: 07/07/2014    Page: 10 of 11


      Given that Charles was already subject to a 24 months’ consecutive sentence

for aggravated identity theft under § 1028A(a)(1), Application Note 2 to guideline

§ 2B1.6 precluded the two-level increase in the Count One offense level for

transferring the debit card to Bien-Aime. See Cruz, 13 F.3d at 607; see also United

States v. Doss, 741 F.3d 763, 766-67 (7th Cir. 2013) (holding that Application

Note 2 to § 2B1.6 precluded the application of the two-level increase under

§ 2B1.1(b)(11)(B) for trafficking an unauthorized access device when the

defendant was convicted and sentenced under 18 U.S.C. § 1028A); United States

v. Lyons, 556 F.3d 703, 708 (8th Cir. 2009) (“Given that the plain meaning of

trafficking involves a transfer, the enhancement in § 2B1.1(b)([11])(B)(i) for

trafficking of an unauthorized access device is one such specific offense

characteristic that cannot be applied” under Application Note 2 to § 2B1.6); United

States v. Jones, 551 F.3d 19, 25 (1st Cir. 2008) (providing that “if a defendant

receives the two-year consecutive sentence on the identity theft count, her sentence

for any underlying offense is not eligible for a 2-level increase for ‘transfer,

possession, or use’ of false identification”).

C.    Production of Unauthorized Access Devices

      As an alternative argument, the government asks us to affirm the application

of the two-level increase under U.S.S.G. § 2B1.1(b)(11)(B) because the record




                                           10
               Case: 13-11863       Date Filed: 07/07/2014       Page: 11 of 11


supports a finding that Charles “produced” unauthorized access devices.3 In the

district court, the government consistently argued “production” and expressly

asked the district court for a ruling on that ground. But the district court ruled

solely on the “trafficking” ground and declined to rule on the government’s

“production” argument, leaving us without the benefit of the requisite fact findings

on this issue. On remand, the issue of production should be addressed by the

district court in the first instance based on the current record.

                                    III. CONCLUSION

       For these reasons, we vacate the district court’s sentence on Count One and

remand for resentencing on Count One without the two-level enhancement for

“trafficking” in § 2B1.1(b)(11)(B). We express no opinion about “production” and

remand with directions that the district court rule on the “production” issue and

give reasons why and then resentence Charles on Count One.4

VACATED AND REMANDED.

       3
        To recall, § 2B1.1(b)(11)(B) also applies a two-level increase in the defendant’s offense
level when “the offense involved . . . the production . . . of any unauthorized access device.”
U.S.S.G. § 2B1.1(b)(11)(B)(i). The application notes to § 2B.1.6 do not prohibit an
enhancement to the offense level of the underlying offense based on the defendant’s production
of an unauthorized access advice.
       4
         On appeal, Charles also contends that the district court erred when it denied Charles’s
motion to suppress evidence obtained in the traffic stop. However, this argument was waived by
Charles’s guilty plea. See United States v. Brown, No. 13-10023, — F.3d —, 2014 WL
2200395, at *3 (11th Cir. May 28, 2014); see also United States v. Patti, 337 F.3d 1317, 1320
(11th Cir. 2003) (“Generally, a voluntary, unconditional guilty plea waives all nonjurisdictional
defects in the proceedings.”).



                                               11
