                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0518n.06

                                           No. 08-2293
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                             Aug 17, 2010
                               FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE WESTERN
                                       )                  DISTRICT OF MICHIGAN
MAMOUDOU BATHILY,                      )
                                       )
                                                                  OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: BATCHELDER, Chief Circuit Judge; MOORE and COLE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Mamoudou Bathily pleaded guilty pursuant

to a written plea agreement to two counts of a seven-count superseding indictment and received a

sentence of forty-eight months of imprisonment: twenty-four months of imprisonment on Count One

for conspiracy to commit access-device fraud, mail fraud, and/or identity theft in violation of 18

U.S.C. § 371; and a consecutive twenty-four months of imprisonment, the statutory mandatory term,

on Count Four for aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1), (c)(5), and (b).

He challenges his sentence for Count One as procedurally unreasonable, asserting that the district

court sua sponte enhanced his sentence in violation of the notice requirement in Federal Rule of

Criminal Procedure 32 and failed to address his arguments that the Sentencing Guidelines for fraud

offenses yield an excessive sentence in light of the 18 U.S.C. § 3553(a) factors.
                       I. BACKGROUND FACTS AND PROCEDURE

       Bathily, with the assistance of at least his three co-defendants, utilized stolen identification

information from Chase Bank customers to obtain credit cards and money to purchase goods that

they later resold, splitting the profits. Bathily’s conduct spanned from Chicago to Grand Rapids,

Michigan, to New York City, involving twenty-five victims, and eventually came to the attention of

Chase Bank officials, who collaborated with the U.S. Postal Inspection Service in Grand Rapids,

Michigan, where Bathily had requested many of the fraudulent credit cards to be sent. Bathily was

arrested after he personally signed for the delivery of a fraudulently produced credit card in Grand

Rapids. Bathily and his co-defendants were subsequently charged in a seven-count superseding

indictment.

       Bathily pleaded guilty pursuant to a written plea agreement to only Counts One and Four of

the superseding indictment and proceeded to sentencing. Utilizing the 2008 edition of the United

States Sentencing Commission Guidelines Manual, the Presentence Investigation Report (“PSR”)

started with a base offense level of six for Count One and recommended a twelve-level enhancement

under United States Sentencing Guideline (“U.S.S.G.”) § 2B1.1(b)(1)(G) for an intended aggregate

loss of $305,177.92, a two-level enhancement under U.S.S.G. § 3B1.1(c) for his role in the offense,

and a three-level reduction for acceptance of responsibility, arriving at a recommended total offense

level of seventeen. PSR at ¶¶ 53–64. With a criminal history category of I, the PSR thus

recommended a Guidelines range of twenty-four to thirty months of imprisonment for Count One.

Id. at ¶¶ 52, 97. Count Four, under the Aggravated Identity Theft statute, 18 U.S.C. § 1028A,

required an additional mandatory term of imprisonment of twenty-four months to be imposed

consecutive to Bathily’s term of imprisonment for Count One. Id. at ¶¶ 65, 96–97. Bathily raised


                                                  2
only one objection to the PSR, contesting the amount of loss suffered by one of the victim banks.1

Id. at add. 1.

        Bathily’s sentencing memorandum focused on the 18 U.S.C. § 3553(a) factors, requesting

the district court to “give[] less weight and deference” to the fraud Guidelines “because, like the

crack guideline at issue in Kimbrough, it does not achieve the § 3553(a) purposes of punishment,”

based in part on the Sentencing Commission’s “conce[ssion] that they implemented sentences

‘significantly more severe than past practice’ for a number of offenses, including fraud cases, and

that therefore the fraud guidelines are not based on empirical evidence.” Dist. Ct. Doc. (“Doc.”) 92

(Sent. Mem. at 3–4). He specifically “request[ed] a downward departure or variance to account for

the nature and circumstances of the offense as well as his history and characteristics, which suggest

he is unlikely to re-offend” and to account for “the fact that the fraud guidelines result in a sentence

that is greater than necessary to accomplish the goals of sentencing.” Id. at 7–8. Bathily did not

include a preferred below-Guidelines sentence in his memorandum, but requested that the court

impose only “the mandatory minimum” twenty-four months of actual imprisonment, the mandatory

minimum for Count Four (implicitly requesting a non-custodial sentence for Count One).2

        At the very beginning of the sentencing hearing, the district court confirmed that neither party

had any objections to the PSR and that Bathily had read and did not object to the PSR. Doc. 98



        1
         Bathily did include a footnote in his sentencing memorandum “to clarify” the PSR’s
characterization of his role—he stressed that “although he is not objecting to the leadership
enhancement in ¶ 57 of the PSR, he was not the mastermind of this operation, nor did he have to
recruit others to participate.” Doc. 92 (Sent. Mem. at 6 n.2).
        2
        The government opposed this suggestion, noting that 18 U.S.C. § 1028A(b)(3)
“expressly prohibited” considering the mandatory consecutive sentence for Count Four to reduce
the sentence for the underlying crime. Doc. 93 (Substantial Assistance Mem. at 2 n.1).

                                                   3
(Sent. Tr. at 2–3). Bathily’s counsel then withdrew his restitution objection and stated that he had

no objections at that time. Id. at 3. Immediately thereafter, the district court indicated that it

believed that the recommended two-level enhancement under U.S.S.G. § 3B1.1 should be a three-

level enhancement, even though “it doesn’t appear” that five or more people were involved in more

than a “tangential” way. Id. at 3–4. The court stated that “this is an extensive one, and I think Mr.

Bathily’s leadership here is fairly - - intellectually and financially, it’s rather sophisticated.” Id. at

4. The court then noted that the new adjusted offense level was eighteen before entertaining the

parties’ arguments. Id. at 3–4.

        Following this announcement, Bathily’s counsel argued for a downward variance under

§ 3553, stating that when the court “considers the factors set forth in [§] 3553, I think that most of

them weigh in my client’s favor in terms of fashioning a sentence that’s below the guideline range

or takes into account his extraordinary family life history and circumstances.” Id. at 4. Counsel

asserted that Bathily’s lack of a criminal record, difficult upbringing in Africa, educational

achievements, and family support, as well as his low statistical likelihood of recidivism, warranted

a lesser term of imprisonment “at the low end of the range [recommended by the PSR] or at the

minimum sentence available to the Court.” Id. at 4–7. Bathily addressed the court to express his

remorse for his crime, explaining, when pressed, that he was motivated by greed. Id. at 7–12. The

government argued “for a significant deterrent sentence,” but moved for a four-level substantial-

assistance downward departure, which the court accepted as a three-level departure to an adjusted

offense level of fifteen before it considered the § 3553(a) factors.3 Id. at 13–14.


        3
         The district court did not state its Guidelines range calculation, but it indicated at the
outset of the sentencing hearing that it had received the PSR and it made reference to the PSR
calculations. Bathily does not challenge his sentence based on this failure, and the district court

                                                    4
        The court then began a short but detailed statement of its reasoning. The court found “that

the nature and circumstances of this offense are . . . egregious” because “[i]t crosses state lines,”

“destabilizes not only banking proceedings, but credit proceedings,” “causes people to lose faith in

the system of commerce and the system of credit and credit cards and identity which is kind of at the

heart of people’s commercial activity, and the nature, the widespread nature of this is really

upsetting.” Id. at 14. The court stated that Bathily’s history and characteristics of “spending the first

13 years in Timbuktu, Mali, and going from there on to one school to another and coming to the

United States and navigating at least the commercial system like he has indicates we have a very,

very intelligent young man here at age 29,” but the court stressed that Bathily’s “intelligence was

unfortunately used for something not very constructive, but in a greedy, harmful way to others.” Id.

at 15. The court noted that its “duty to impose a sentence sufficient, but not greater than necessary

to comply with the federal sentencing statute not only requires the Court to look at the seriousness

of this offense, but to promote respect for law.” Id. The court next addressed “the deterrence of a

sentence in this kind of matter, which requires the Court to look further than merely Mr. Bathily and

what he did, but [to] look to the larger community that’s affected by this . . . and . . . [to] the

protection the public deserves from the continued conduct of this kind.” Id. at 15–16. The court

prefaced its statement of Bathily’s forty-eight-month sentence with,

        the Court believes that the following should be the sentence of this Court to clearly
        and adequately reflect not only the interests that the government has in that sentence,
        but also the interest Mr. Bathily has in being able to serve his sentence, to be able to
        learn from this sentence, and to be able to go on with his life and obviously by hard



sentenced him to the top of the Guidelines range for Count One—a criminal history category of I
and an adjusted offense level of fifteen yields a Guidelines range of eighteen to twenty-four
months of imprisonment.

                                                   5
       work, diligence, and a good moral ethic be a successful, productive citizen of this
       world.

Id. at 16. In response to the court’s question of whether there was “[a]ny legal objection to the

sentence imposed,” Bathily’s counsel preserved his objection to the additional one-level

enhancement under § 3B1.1. Id. at 17–18.

                                         II. ANALYSIS

A. Standard of Review

               After the Supreme Court’s decision in United States v. Booker, 543 U.S. 220
       (2005), we review sentences “for reasonableness—including for procedural error in
       the calculation of the guideline range such as defendant asserts in this case.” United
       States v. Bartee, 529 F.3d 357, 358 (6th Cir. 2008) (citing Gall v. United States, 552
       U.S. 38 (2007)). Thus, when reviewing a district court’s sentencing determination,
       we must “ensure that the district court committed no significant procedural error,
       such as failing to calculate (or improperly calculating) the Guidelines range, treating
       the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
       sentence based on clearly erroneous facts, or failing to adequately explain the chosen
       sentence.” Gall, [552 U.S.] at [51].

United States v. Wynn, 579 F.3d 567, 570 (6th Cir. 2009).

B. Rule 32(h) & Sua Sponte Enhancement Under U.S.S.G. § 3B1.1(b)

       Bathily argues that his sentence is procedurally unreasonable because the district court

imposed a three-level enhancement under U.S.S.G. § 3B1.1(b) without the prior notice required

under Federal Rule of Criminal Procedure 32,4 leaving counsel without the means to present an

argument against this enhancement other than a blanket objection at the sentencing hearing. Because


       4
        Federal Rule of Criminal Procedure 32(h) provides,
       Before the court may depart from the applicable sentencing range on a ground not
       identified for departure either in the presentence report or in a party’s prehearing
       submission, the court must give the parties reasonable notice that it is
       contemplating such a departure. The notice must specify any ground on which the
       court is contemplating a departure.
Fed. R. Crim. P. 32(h).

                                                 6
the district court’s application of § 3B1.1 under subsection (b) rather than subsection (c) did not

constitute a “departure” that required notice within the meaning of Rule 32(h), we disagree.

       The Supreme Court recognizes that “‘[d]eparture’ is a term of art under the Guidelines and

refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines.”

Irizarry v. United States, 553 U.S. 708, 128 S. Ct. 2198, 2202 (2008). The Court has noted that it

intended the notice requirement in Rule 32—promulgated in furtherance of its opinion in Burns v.

United States, 501 U.S. 129 (1991)—to be “applied to a narrow category of cases” that utilized a

subcategory of departures under 18 U.S.C. § 3553(b) “that were based on ‘a ground not identified

as a ground for . . . departure either in the presentence report or in a pre-hearing submission.’”

Irizarry, 128 S. Ct. at 2202 (quoting Burns, 501 U.S. at 138–39); see United States v. Jordan, 544

F.3d 656, 671 & nn.12–13 (6th Cir. 2008) (holding that a loss calculation made to apply § 2B1.1 is

not a departure), cert. denied, 129 S. Ct. 1382 (2009). “A sentence outside the Guidelines based on

Chapter 5 of the Guidelines is a ‘departure’ or ‘Guideline departure,’ . . . .” Jordan, 544 F.3d at 671

n.12 (concluding that district court did not utilize a departure because it “did not refer to any of the

Chapter 5 bases for departure”); see also United States v. Blackie, 548 F.3d 395, 403 (6th Cir. 2008)

(explaining the difference between a Guidelines “departure” and a § 3553(a) “variance” for Rule

32(h)). “A Guidelines ‘departure’ refers to the imposition of a sentence outside the advisory range

or an assignment of a criminal history category different than the otherwise applicable category made

to effect a sentence outside the range.” United States v. Grams, 566 F.3d 683, 686 (6th Cir. 2009).

       Here, the district court disagreed with the subsection of § 3B1.1 that the PSR recommended

to calculate the Guidelines range, but the court did not “depart” from the Guidelines after it had

established an advisory range. Cf. United States v. Caseslorente, 220 F.3d 727, 734–36 & n.6 (6th


                                                   7
Cir. 2000) (explaining that an upward departure may be warranted for activity that does not qualify

within the meaning of § 3B1.1 for a sentencing enhancement). An enhancement made pursuant to

Chapter 3 is an “adjustment” applied in the district court’s process of calculating an advisory

Guidelines sentencing range rather than a means of “departure” from that range once calculated. See

U.S.S.G. § 1B1.1. We have previously rejected the argument that Rule 32 notice applies to a district

court’s application of the Guidelines provisions, holding that the Rule “is limited to departures from

the Guidelines and does not extend to require notice when the district court plans to apply the

Guidelines in a manner different from what is recommended in the presentence report.” United

States v. Hayes, 171 F.3d 389, 393 (6th Cir. 1999). The sua sponte application of a sentencing

enhancement not recommended in the PSR or reliance on an alternative basis to apply a Guidelines

provision is not a departure that violates Rule 32. United States v. Guthrie, 144 F.3d 1006, 1012 (6th

Cir. 1998) (“Burns does not require notice of all possible sentencing factors. A district court is

always free to accept or disregard a probation officer’s findings in a presentence investigation

report.” (citations omitted)). Because “[a] defendant is, of course, on notice of the contents of the

Guidelines,” “the legal determination to apply a particular provision is one that defense counsel can

more reasonably be expected to anticipate, and to respond to at the sentencing hearing on the basis

of the known facts.” Hayes, 171 F.3d at 393.

       We conclude that the district court did not err by failing to comply with Rule 32(h) because

that notice requirement does not apply when a sentencing enhancement is applied under Chapter 3.




                                                  8
C. Application of U.S.S.G. § 3B1.1(b)

       As an alternative argument, Bathily contends that the district court committed procedural

error by failing to state a sufficient factual basis for the § 3B1.1(b) enhancement. We review de

novo the legal question of “[w]hether a district court is required to make factual findings on the

record.”5 United States v. Vandeberg, 201 F.3d 805, 809 (6th Cir. 2000).

               This Circuit has decided that the failure to specify the factual basis for
       applying a § 3B1.1 enhancement “is not grounds for vacating the sentence.” United
       States v. Alexander, 59 F.3d 36, 39 (6th Cir. 1995). The Alexander Court stated that
       “although not required under the Guidelines, it is preferable that trial courts indicate
       the factual basis for enhancing a defendant’s sentence pursuant to U.S.S.G. § 3B1.1.”
       Id. A description of the factual basis for the enhancement is important because it
       provides the defendant an understanding of the enhancement and provides a
       meaningful basis for appellate review. Id. at 39–40.

Vandeberg, 201 F.3d at 809–10. However, where “the District Court failed to articulate the factual

basis for the enhancement, we are compelled to conduct a de novo review of the record and

determine whether the enhancement is applicable, or whether remand for further findings is

required.” Id. at 811 n.2. “The government bears the burden of proving that the enhancement

applies by a preponderance of the evidence.” Id. at 811.

       Here, the district court failed to explain its rationale for finding that Bathily’s offense conduct

“involved five or more participants or was otherwise extensive” under § 3B1.1(b). It seems that the

court offhandedly rejected the idea that “five or more participants” were involved within the meaning


       5
         We have not yet decided what standard of review applies to a § 3B1.1 determination that
a district court did make, but “‘it is clear that factual findings made by the district court are
reviewed for clear error.’” United States v. Young, 553 F.3d 1035, 1053 (6th Cir.) (quoting
United States v. Walls, 546 F.3d 728, 735 (6th Cir. 2008)), cert. denied, 130 S. Ct. 204 (2009);
cf. United States v. Baker, 559 F.3d 443, 449 (6th Cir. 2009) (seeming to review § 3B1.1(a)
enhancement for clear error); see also United States v. Solorio, 337 F.3d 580, 600–01 (6th Cir.)
(analyzing the court’s application of § 3B1.1 under both clear error and de novo standards
because proper standard not yet decided), cert. denied, 540 U.S. 1063, 540 U.S. 1067 (2003).

                                                   9
of § 3B1.1, and instead found that Bathily’s conduct was “otherwise extensive” by focusing on the

“width, breadth, scope, complexity and duration of the scheme”—factors that this court has held are

not relevant to a § 3B1.1 analysis. See United States v. Anthony, 280 F.3d 694, 699–700 (6th Cir.

2002) (rejecting “the alternative factors relied upon in [United States v.] Dietz[, 950 F.2d 50, 53 (1st

Cir. 1991)]” in favor of the then-minority view) (internal quotation marks omitted); accord United

States v. Thomas, No. 08-6496, 2010 WL 1489270, at *3 (6th Cir. Apr. 14, 2010) (unpublished

opinion). Instead, in Anthony we chose to follow the then-minority of our sister Circuits and require

an “otherwise extensive” finding to be made only “when the combination of knowing participants

and non-participants in the offense is the functional equivalent of an activity involving five

criminally responsible participants.” Anthony, 280 F.3d at 699 (emphasis added). This “functional

equivalence” test requires consideration of three factors:

        “(i) the number of knowing participants;
         (ii) the number of unknowing participants whose activities were organized or led by
              the defendant with specific criminal intent; and
        (iii) the extent to which the services of the unknowing participants were peculiar and
              necessary to the criminal scheme.”

Id. at 701 (quoting United States v. Carrozzella, 105 F.3d 796, 804 (2d Cir. 1997)). The district

court clearly made no attempt to apply this test, one that “requires more than a simple summation

of participants and non-participants” but rather consideration of “how significant the role and

performance of an unwitting participant was to the ultimate criminal objective” before a non-

participant may be counted for § 3B1.1 purposes. Id.

        We conclude that we are unable to apply this test on de novo review because crucial findings

of fact are missing. The government, which bore the burden of proving that the enhancement

applied, made no statements at the sentencing hearing regarding the district court’s decision to


                                                  10
impose three levels under § 3B1.1(b) instead of the PSR’s recommended two-level § 3B1.1(c)

enhancement, to which it had not objected. And in its brief on appeal, the government did not

address the sufficiency of the factual basis for the enhancement other than to indicate summarily that

the PSR information supported the adjustment.6 See Appellee Br. at 18 n.5 (arguing that Bathily

could not prove prejudice from lack of Rule 32 notice). Although Bathily did not object to the

factual basis for the § 3B1.1(c) enhancement recommended in the PSR, we disagree with the

government’s conclusory assertion that the PSR contains sufficient factual information to support

an “otherwise extensive” finding for § 3B1.1(b) under our precedent. Cf. United States v. Darwich,

337 F.3d 645, 667 (6th Cir. 2003) (“[E]xclusive reliance on the PSR when a matter is in dispute

cannot be considered a ruling.”). Had the district court engaged in the relevant factual analysis, it

may well have concluded that five “participants”—knowing or unknowing—existed within the

meaning of § 3B1.1 and its Application Notes.7 Cf. Anthony, 280 F.3d at 698 (noting that courts may


       6
         Bathily failed to articulate any recognition that Anthony governed his alternative § 3B1.1
argument until oral argument, and at that time the government did not elaborate on its conclusory
assertion that the PSR supported a § 3B1.1(b) enhancement. The government’s response to
Bathily’s factual basis argument in its brief on appeal, however, argued that Bathily’s four
“knowing accomplices” in addition to the “many other unwitting participants” referenced in the
PSR were sufficient to support the district court’s § 3B1.1(b) conclusion. Appellee Br. at 15 n.3.
By referencing the number of participants, the government was clearly on notice of the Anthony
requirements, as they should be regarding our binding precedent. Although we note that Bathily
did not present an explicitly Anthony-based argument to the district court at sentencing, Bathily
did clearly preserve his objection to the district court’s application of § 3B1.1(b) at the
sentencing hearing in response to the district court’s Bostic question. Doc. 98 (Sent. Tr. at
17–18). We do not believe that either the district court or the government could have interpreted
this objection as going to anything other than the factual basis that the district court utilized to
apply § 3B1.1(b), as there was no other discussion related to the enhancement during the hearing.
       7
         The PSR indicates that at least three additional individuals other than Bathily’s co-
defendants were involved in Bathily’s conduct to some extent, but the information provided is
insufficient to reach any definitive conclusions regarding these, or any other, individuals’
involvement. See PSR at ¶ 28 (noting that Bathily received co-defendant Kwame McCauley’s

                                                 11
“count as participants persons who were (i) aware of the criminal objective, and (ii) knowingly

offered their assistance”). But the district court failed to engage in the analysis required, and the

record is insufficient for us to decide this issue in the first instance.

                                         III. CONCLUSION

        For these reasons, as did the Anthony court, we conclude that the district court’s § 3B1.1(b)

analysis relied on impermissible factors, and we VACATE Bathily’s sentence and REMAND for

further factual findings and for resentencing. Id. at 701 (concluding that the district court’s

§ 3B1.1(a) finding rested “upon a consideration of impermissible factors” and remanding for the

court to apply the proper analysis).         We decline to address Bathily’s second procedural

unreasonableness argument because it is not dispositive. To the extent that Bathily argues that the

district court failed adequately to address and explain its rationale for rejecting Bathily’s argument

for a downward variance based on his unique characteristics and a policy dispute with the fraud

Guidelines, he may address these arguments before the district court on resentencing. See Spears

v. United States, — U.S. —, 129 S. Ct. 840 (2009); Kimbrough v. United States, 552 U.S. 85 (2007);

see also United States v. Camacho-Arellano, — F.3d —, 2010 WL 2869394, at *3–6 (6th Cir. 2010).




information regarding his willingness to sell identity information from an unnamed
“acquaintance”); id. at ¶ 37 (noting that co-defendant Sarah B. Eldridge’s boyfriend traveled with
Bathily and Eldridge from Grand Rapids to Chicago on at least one occasion when they utilized
fraudulently obtained credit cards in furtherance of their crimes); id. at ¶¶ 41, 46 (noting that
Yvonne Ingabire, the mother of Bathily’s child, was responsible for “making false statements to a
federal agent regarding her relationship with Mr. Bathily” and “attempt[ing] to hinder and/or
obstruct their investigation by removing all of his belongings from her residence pursuant to Mr.
Bathily’s instructions”).

                                                   12
