                                 PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 12-5007


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

ADETOKUNBO OLUBUNMI ADEPOJU, a/k/a Olu,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     Marvin J. Garbis, Senior District
Judge. (1:10-cr-00647-MJG-1)


Argued:   March 19, 2014                         Decided:    June 23, 2014


Before GREGORY    and   FLOYD,   Circuit     Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by published
opinion. Judge Gregory wrote the opinion, in which Judge Floyd
and Senior Judge Davis joined.


ARGUED: John O. Iweanoge, II, IWEANOGE LAW CENTER, Washington,
D.C., for Appellant.    Judson T. Mihok, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.   ON BRIEF:
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
GREGORY, Circuit Judge:

        After a jury convicted him of bank fraud and aggravated

identity theft, Adetokunbo Olubumi Adepoju received a seventy-

month      sentence.        He   now    challenges        the    sufficiency          of   the

evidence     for    his     convictions      and       sentencing      enhancement          for

sophisticated means.             Also, he asserts a due process violation.

We   affirm     the    convictions          and    also        find    no     due     process

violation.         However,      because     the       facts    do    not   affirmatively

demonstrate sophisticated means in his attempt to commit bank

fraud, we vacate and remand for resentencing.



                                            I.

      In June 2010, a confidential informant (“CI”) contacted law

enforcement to report a man named “Olu”—later identified as the

defendant—who claimed to be a real estate agent looking to sell

counterfeit        identification           documents          for     $7,500.             Upon

instruction from Department of Homeland Security (“DHS”) Special

Agent    (“SA”)    Marc     Dipaola,     the      CI    informed      Adepoju       that    the

potential customer for the documents balked at the high price.

The two ceased discussing this potential transaction.                               One month

later, Adepoju approached the CI with a plan to defraud a bank

and asked whether the CI knew someone who worked at a bank.                                 The

CI   led    Adepoju    to    believe     that      he    knew    a    woman    in     a    vice

president-like        position     at   a    local       Bank    of    America       who    had

                                             2
previously assisted the CI with illegal transactions.                              Adepoju

instructed the CI to open two accounts, into which the CI would

deposit checks that Adepoju supplied.                   Once the checks cleared,

the    CI    could    withdraw    the   funds,       retain       his   portion,     pay    a

portion to the insider, and give Adepoju the remaining amount.

       On    August    31,     2010,    Adepoju      provided       the      CI   with   IRS

documentation to use for opening a personal account in the name

of “T.A.” and a business account in the name of “T.A. Trucking.” 1

Handwritten on the back of the documents were T.A.’s name, date

of    birth,    and    social    security         number.     The       CI   contacted     SA

Dipaola and presented these documents to the agent.                                Upon SA

Dipaola’s instruction, the CI asked Adepoju whether T.A. was a

real person, and Adepoju responded affirmatively.                            When Adepoju

later       questioned       whether    the       accounts    were        open,    the     CI

presented       fabricated       checks,          created    by     law      enforcement,

connected to fictitious accounts to satisfy Adepoju’s inquiries. 2

        The next month, the CI received two checks from Adepoju.

The first was a Wells Fargo Bank cashier’s check payable to T.A.

for    $28,000.        The    second    was       payable    to    T.A.      Trucking    for

$70,500.       The CI led Adepoju to believe he would deposit the


       1
           T.A.’s full name is redacted throughout this opinion.
       2
       Fabricated checks were necessary to accomplish this, as an
actual account could not be opened due to the fact that T.A. was
a real person.


                                              3
checks, but he then gave them to law enforcement.                            After Adepoju

repeatedly asked the CI to withdraw funds from the accounts, SA

Dipaola       secured     search    warrants          for    Adepoju’s      home.          The   CI

called    Adepoju        and    arranged     a       time   to    deliver    the      withdrawn

funds, yet Adepoju never met the CI or received the funds.                                       On

the     day    of   the        planned     exchange,         Adepoju      called      the        CI,

initially changing the meeting location before later aborting

the meeting altogether.

      Law enforcement executed the search warrants and arrested

Adepoju at his home.              Officers recovered five cellular phones, a

laptop computer, and a thumb drive.                         The number assigned to one

of the phones matched the number the CI used to call Adepoju.

The thumb drive contained images of blank social security cards

and a check issued by a Pennsylvania company.                          The images of the

check showed the account number but blocked out the name of the

payee.        The   officers       also    found       multiple      copies      of    a    check

bearing the same number but made out to different payees, one of

whom was Adepoju’s wife, for different amounts.                                  Fingerprint

analysis revealed the presence of Adepoju’s thumbprint on the

envelope used to deliver the $28,000 check to the CI.

      The      government        charged    Adepoju         with    two    counts      of    bank

fraud    under      18    U.S.C.        § 1344       and    one    count    of     aggravated

identity       theft     under     18    U.S.C.       § 1028A.       At     trial,      the      CI

testified as to the aforementioned interactions with Adepoju.

                                                 4
SA Dipaola testified that accounts at four different banks were

opened      in    T.A’s     name     shortly        before    the     CI     received      his

information from Adepoju, between July 28 and August 31, 2010.

These    accounts         all    listed     the     same     Temple    Hills,       Maryland

address that also appeared on the documents the CI received.

T.A., a Pennsylvania resident, identified his social security

number and birthdate on the forms Adepoju supplied to the CI.

T.A   also       stated    that    he     had   not     authorized      anyone      to   open

accounts on his behalf, never operated a trucking business, and

had never been to Temple Hills, Maryland.                       Testimony from Wells

Fargo Bank representatives established that the checks the CI

received     were       fraudulent        and   that    the    bank’s       deposits     were

federally insured.              The representatives also explained that had

the   forged       cashier’s       checks       been    deposited      and     funds     been

successfully        withdrawn        as     a    result,      the     bank    would      have

experienced a loss.

      After       the     jury     convicted        Adepoju    on     all    counts,       the

district court sentenced him to seventy months’ imprisonment.

For   the    bank       fraud     convictions,         the   district       court    imposed

forty-six month sentences, the high end of the Guidelines range.

Conviction on Count Three mandated a twenty-four-month sentence,

which    the      court     imposed        consecutively        to     the    bank       fraud

sentences.        See 18 U.S.C. § 1028A(b)(2).



                                                5
      Relevant     to     this    appeal,       the     court    applied        to    the     bank

fraud sentences a two-level enhancement for using sophisticated

means under § 2B1.1(b)(10)(C) of the Sentencing Guidelines.                                    At

sentencing, the district court opined that unsophisticated means

involves     “something          that     an       ordinary      person,        who         wasn’t

specially trained in something, could get done.”                           J.A. 649.          The

court     then     asked        defense        counsel         how     acquiring            T.A.’s

information was not sophisticated, and defense counsel explained

that troves of personal information can be found via commonly-

used internet search engines and other tactics.                                 Furthermore,

defense    counsel      noted,     opening         a    bank    account      requires          not

sophistication but merely the proper paperwork.                            The government

responded that no evidence supported Adepoju’s claims that he

used simple tactics to obtain T.A.’s information.                           Specifically,

the government argued that there was no evidence that he used a

simple internet search or other commonplace means to acquire

T.A.’s name, birthdate, and social security number.

      After cautioning that it did not want to place the burden

on the defendant, the court noted the absence of evidence that

T.A.’s     information      could        have      been    retrieved        via        internet

sources     and    that     this        absence        “reinforces        the        view    that

[Adepoju’s scheme] must have been sophisticated.”                                    J.A. 654.

The   district     court     then       concluded        that    the      enhancement          was

appropriate       based    on     the     effort       required      to    obtain           T.A.’s

                                               6
information, obtain the forged checks, and “do what would have

worked” had the CI actually opened the account and deposited the

checks.   J.A. 657.

     Adepoju timely appealed and now challenges the sufficiency

of the evidence, the sophisticated means enhancement, and the

mandatory       sentence    for   aggravated    identity     theft.      We   have

jurisdiction pursuant to 28 U.S.C. § 1291.



                                       II.

     Where       a   defendant     challenges        the   sufficiency   of   the

evidence supporting a conviction, we view the evidence in the

light most favorable to the government and uphold the verdict if

substantial evidence supports it.               United States v. Stockton,

349 F.3d 755, 760-61 (4th Cir. 2003).                  Substantial evidence is

that which, taking all inferences in the government’s favor,

could lead a rational jury to find the evidence sufficient for a

conviction.       United States v. Burgos, 94 F.3d 849, 857 (4th Cir.

1996).      A    defendant    challenging      the    sufficiency   of   evidence

“faces a heavy burden,” United States v. Young, 609 F.3d 348,

355 (4th Cir. 2010), and we reverse only where the prosecution’s

failure is clear.          United States v. Moye, 454 F.3d 390, 394 (4th

Cir. 2006).

     Challenging the bank fraud convictions, Adepoju cites an

absence of evidence that he opened an account at a federally

                                        7
insured financial institution or presented the fraudulent checks

for payment.        As to the identity theft conviction, he contends

that the evidence failed to demonstrate that he knew that T.A.

was a real person.           We disagree with both contentions.

                                            A.

      The federal bank fraud statute imposes criminal liability

in two circumstances.                The first is an attempted or completed

scheme to defraud a financial institution.                   18 U.S.C. § 1344(1).

The   second   is       a    knowingly     attempted   or    completed      scheme   to

obtain funds by false pretenses or representation.                          18 U.S.C.

§ 1344(2).     The major difference between the subsections is that

§ 1344(1) focuses on how the defendant’s conduct affects a bank,

while § 1344(2) focuses solely on the conduct.                   United States v.

Loughrin, 710 F.3d 1111, 1116 (10th Cir. 2013).                   The elements of

a § 1344(1) violation are (1) the defendant knowingly executed

or    attempted     a       scheme    or   artifice    to    defraud    a   financial

institution, (2) he did so with intent to defraud, and (3) the

institution was a federally insured or chartered bank.                         United

States v. Brandon, 298 F.3d 307, 311 (4th Cir. 2002); see also

United States v. Flanders, 491 F.3d 1197 (10th Cir. 2007).                           The

requirements for a § 1344(2) conviction differ only as to the

first element, which is that the defendant knowingly execute a

scheme    to   obtain         property     held   by   a    financial    institution

through false or fraudulent pretenses.                      Loughrin, 710 F.3d at

                                             8
1115.      Thus, § 1344(1) does not require fraudulent promises,

United States v. Celesia, 945 F.2d 756, 758 (4th Cir. 1991), or

that the bank suffer any loss, Loughrin, 710 F.3d at 1116.                                        A

§ 1344(2)       conviction       does       not       demand    that       the     bank   be    the

intended victim of the fraud; a person can violate the statute

by   obtaining        funds    from     a    bank       while    intending          to    defraud

another person or entity.               Loughrin, 710 F.3d at 1116.

       As an initial matter, we address Adepoju’s argument that

only § 1344(1) applies here because the indictment failed to

allege    an    affirmative          misrepresentation               with    respect      to   the

forged checks, a requirement for § 1344(2).                                 We disagree with

this position because the indictment cites § 1344 and references

language       from    both    subsections,            thereby       providing       notice      of

intent to pursue conviction under either one.                               See United States

v. Fontana, 348 F.2d 796, 801 (1st Cir. 1991).                                Notwithstanding

this    point,      his      argument       does      not     bear    on     our    disposition

because we find the evidence sufficient under § 1344(1).                                        See

Brandon, 298 F.3d at 314 (finding unnecessary an analysis of

sufficiency under § 1344(2) where evidence supported conviction

under § 1344(1)); see also United States v. Wilkinson, 137 F.3d

214, 232 (4th Cir. 1998).

       Taken in the light most favorable to the government, the

evidence       in     this    case    supports          the    jury’s        conclusion        that

Adepoju    is       guilty     of    committing          bank    fraud        as    defined     by

                                                  9
§ 1344(1).            On the first element, the evidence demonstrated an

attempt to execute a scheme to defraud a financial institution.

Adepoju          concedes       that     the    evidence      shows    this        incomplete

attempt.              As   to   the      second      element,      Adepoju’s       intent   is

demonstrated by his statements, as conveyed by the CI, regarding

the plan to open bank accounts under another’s name, deposit

checks into those accounts, and later withdraw the deposited

funds.          The third element, that the bank was federally insured

or chartered, is satisfied by the trial testimony of Wells Fargo

representatives.

       Adepoju’s           arguments      to    the    contrary       are    unpersuasive.

First, he contends that the evidence failed to demonstrate a

risk of loss or that he devised the scheme.                         Risk of loss to the

bank       is    unnecessary       for    a    § 1344(1)     conviction,       although     it

tends       to    prove     the    requisite        intent   under     that    subsection.

United States v. Swanson, 360 F.3d 1155 (10th Cir. 2004) (risk

of    loss       is    subsumed       under    § 1344(1)’s      “defraud       a    financial

institution” language); United States v. Hoglund, 178 F.3d 410,

413    (6th       Cir.     1999)       (risk   of    loss    “is    merely     one    way   of

establishing intent to defraud” under § 1344(1)). 3                            Furthermore,

the jury heard that Adepoju—not the CI—devised the plan to

defraud the bank.                 Second, having conceded that there was an

       3
        Risk of loss is also unnecessary under § 1344(2).
Loughrin, 710 F.3d at 1115-16; McNeil, 320 F.3d at 1038.


                                                10
incomplete       attempt       to    execute        a    scheme     involving      fraudulent

checks,        Adepoju    argues           that     he     did     not   take      any     steps

constituting criminal activity.                         However, the evidence quells

the notion that this conviction implicates mere thoughtcrime.

The testimony demonstrated that he provided the CI with T.A.’s

information and two forged checks for deposit.                                   His actions,

which “set[] in motion the eventual presentation of the forged

instruments”       to     a     bank,        demonstrated          Adepoju’s       intent    to

defraud, even though he did not personally present the checks to

the bank.        Brandon, 298 F.3d at 312-13.                      For these reasons, we

affirm the bank fraud convictions in Counts One and Two.

                                                  B.

       A conviction for aggravated identity theft under 18 U.S.C.

§ 1028A(a)(1) requires proof that the defendant “(1) knowingly

transferred, possessed, or used, (2) without lawful authority,

(3) a means of identification of another person, (4) during and

in relation to a predicate felony offense.”                              United States v.

Abdelshafi, 592 F.3d 602, 607 (4th Cir. 2010).                                    A means of

identification is a “name or number that may be used, alone or

in     conjunction       with       any     other        information,       to    identify     a

specific individual, including any name, social security number,

date     of     birth,    . . .        employer          or      taxpayer    identification

number.”       18 U.S.C. § 1028(d)(7); see United States v. Mitchell,

518     F.3d     230,    234        (4th     Cir.       2008)     (explaining       that     the

                                                  11
definition       in    § 1028(d)(7)             applies      to     § 1028     and       § 1028A).

Relevant to the first element, the government must prove that

the accused knew that the “means of identification” belonged to

another     person;            an     accused         unaware       that      the     means     of

identification         refers         to    a    real       person        cannot    be     guilty.

Flores-Figueroa         v.      United      States,         556    U.S.     646,    647,    654-55

(2009).     Knowledge of existence is enough; the accused need not

know the individual personally.                        United States v. Foster, 740

F.3d   1202,     1207          (8th    Cir.     2014).            Adepoju    only     challenges

whether    the    evidence            demonstrated          he     knew     T.A.    was    a   real

person.       We find this requirement satisfied.                            On no less than

three occasions, the CI testified at trial that Adepoju admitted

that   T.A.     was    a       real    person—twice          during       direct     examination

before     reiterating              this   point       on    cross-examination.                This

testimony provided sufficient evidence, taken in the light most

favorable to the government, demonstrating Adepoju’s knowledge

that     T.A.    was       a    real       person.          Therefore,        we    affirm     the

conviction for aggravated identity theft under Count Three.



                                                III.

       Adepoju argues that the district court erred in applying a

sentencing enhancement for using sophisticated means in a bank

fraud scheme.          In reviewing a Sentencing Guidelines application,

we review factual findings for clear error and legal conclusions

                                                 12
de novo.        United States v. Allen, 446 F.3d 522, 527 (4th Cir.

2006).     Where a Guidelines application involves a mixed question

of law and fact, the applicable standard turns on the nature of

the circumstances at issue.                 If the application is “essentially

factual,”       we   apply      the     clearly    erroneous       standard.      United

States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989) (citation

omitted).        Whether a defendant’s conduct involved sophisticated

means     is   an    essentially        factual    inquiry,    thus    we   review     for

clear error.          Cf. United States v. Hughes, 401 F.3d 540, 557

(4th Cir. 2005) (applying the clear error standard to determine

whether        conduct        constituted     more     than    minimal         planning);

Daughtrey, 874 F.2d at 218 (finding that whether the defendant

was   a    minimal       or     minor    participant     in    a    crime   to    be   an

“essentially factual” inquiry); accord United States v. Anobah,

734 F.3d 733, 739 (7th Cir. 2013); United States v. Calhoun, 721

F.3d 596, 605 (8th Cir. 2013); United States v. Kennedy, 714

F.3d 951, 961 (6th Cir. 2013); United States v. Bane, 720 F.3d

818, 826 (11th Cir. 2013).

      The Sentencing Guidelines require a two-level enhancement

where a defendant uses sophisticated means in committing acts of

fraud     or    other     offenses       involving     theft    or    counterfeiting.

U.S.S.G.        § 2B1.1(b)(10)(C).                “‘Sophisticated       means’      means

especially       complex        or    especially     intricate       offense     conduct,

pertaining to the execution or concealment of an offense.                           . . .

                                             13
Conduct such as hiding assets or transactions, or both, through

the use of fictitious entities, corporate shells, or offshore

financial       accounts      also          ordinarily       indicates       sophisticated

means.”     U.S.S.G. § 2B1.1 cmt. n. 9(B); see Stinson v. United

States,     508     U.S.     36,       38     (1993)       (holding    that      Guidelines

commentary explaining or interpreting a rule “is authoritative

unless it violates the Constitution or a federal statute, or is

inconsistent       with,     or    a    plainly          erroneous    reading     of,    that

guideline”).        The enhancement applies where the entirety of a

scheme constitutes sophisticated means, even if every individual

action is not sophisticated.                      See United States v. Jinwright,

683 F.3d 471, 486 (4th Cir. 2012) (applying sophisticated means

enhancement under U.S.S.G. § 2T1.1(b)(2) to tax fraud).                                  Even

so,   sophistication         requires             more    than   the     concealment         or

complexities inherent in fraud.                       Id.     Thus, fraud per se is

inadequate        for    demonstrating              the     complexity       required        for

enhancement under U.S.S.G. § 2B1.1(b)(10)(C).

      It   is     axiomatic        that      the     government       must    prove     by    a

preponderance       of     evidence         the     applicability      of    a   sentencing

enhancement.       See, e.g., United States v. Steffen, 741 F.3d 411,

413 (4th Cir. 2013).               In this case, the government failed to

carry that burden.           Adepoju’s use of forged checks and a stolen

identity    to     attempt    bank          fraud    is    beyond    dispute.      Indeed,

virtually all bank fraud will involve misrepresentation, which

                                               14
includes    unauthorized          acquisition            and     use        of     another’s

information.     See United States v. Archuleta, 231 F.3d 682, 685-

86 (10th Cir. 2000) (holding that the defendant’s use of a false

name and checks to obtain funds from a credit union constituted

“evidence of nothing more than the minimum conduct required to

establish   a   violation    of     [18    U.S.C.]        § 1344       in    its    simplest

form”).     Therefore,      the    realm       of    especial      complexities          and

intricacies involves more than the forgeries, misrepresentation,

and concealment inherent in bank fraud.                        See United States v.

Montano, 250 F.3d 709, 715 (9th Cir. 2001) (finding that because

smuggling necessarily involves concealment, sophisticated means

requires more than what is necessary to commit the crime).

       The district court clearly erred by essentially shifting

the burden to Adepoju to disprove sophistication.                                See United

States v. Guzman, 318 F.3d 1191, 1198 (10th Cir. 2003) (vacating

a sentencing enhancement where the district court applied the

enhancement     after   finding     a     lack      of    evidence      supporting       the

defendant’s position).           While the district court expressed an

understanding that it would be improper to place a burden on the

defendant, that is exactly what it did.                        It began by presuming

that    acquiring       T.A.’s      information            was     accomplished          by

sophisticated methods, without any evidence as to how Adepoju

acquired this information.              The court then asked Adepoju for

evidence that he acquired the information in a non-sophisticated

                                          15
manner.    Then, finding Adepoju’s argument against sophistication

unpersuasive, it applied the enhancement based on the stolen

information and plan to commit fraud.              While demonstrating that

Adepoju did enough to violate § 1344 “in its simplest form,” see

Archuleta, 231 F.3d at 685-86, the facts concerning the crime of

conviction do not affirmatively indicate that he did anything

especially intricate or complex to obtain T.A.’s information or

attempt to defraud a bank, see Jinwright, 683 F.3d at 486 (“The

[sophisticated      means]    enhancement      requires      some    means    of

execution that separates the offense before us from the ordinary

or generic.”).

     A clear error occurs where we are left with a firm and

definite conviction that a mistake has been committed.                     United

States v. Dugger, 485 F.3d 236, 239 (4th Cir. 2007).                 Here, the

lack of evidence or explanation of sophistication is clear.                   See

United    States   v.   Llamas,   599   F.3d   381,   389    (4th   Cir.   2010)

(vacating enhancement application where sentencing court “failed

to provide a sufficient explanation of its finding” supporting

enhancement).           The   reasoning      for    the     enhancement      here

essentially amounts to a tautology, where the district court

used the presence of the tools to commit fraud and the plan to

use those tools, combined with a lack of explanation of non-

sophistication, as proof of sophistication.                  However, neither

the record nor common sense suggest that names, birthdates, and

                                        16
social security numbers can be obtained only by sophisticated

means.   There    is   no   evidence    of   how   Adepoju     obtained   that

information.      Additionally,        the   government      conceded     that

obtaining an EIN, even for a falsified company, “is something

that’s not too difficult to do.”             J.A. 655.       Thus, the mere

possession of such information cannot, on its own, demonstrate

sophistication.    Nor was there any explanation by the court as

to how the planned conduct was especially complex or intricate

above and beyond typical § 1344 violations.               Cf. Llamas, 599

F.3d at 388-89.    The government’s burden demands more than the

mere presence of the tools of fraud and the attempt to use the

same.    If    Adepoju’s    current     offenses    did   in    fact    employ

sophisticated means, the government’s evidence and the court’s

conclusory finding did not demonstrate this. 4



     4
       The government presents two additional arguments, neither
of which is persuasive.    The first relies upon an unpublished
decision of this Court finding that the submission of falsified
loan documentation constituted sophisticated means.       United
States v. Okolo, No. 03-4402, 82 F. App’x 834, 836-37 (4th Cir.
Dec. 16, 2003).   That case involved a “painstaking attempt” to
create documents that would survive scrutiny of a bank issuing
more than $600,000 in loans for luxury cars, including time-
consuming efforts of calculating income tax deductions for the
falsified pay stub, vision and dental insurance payments, and
year-to-date tax withholding amounts.      Id. at 835-36.     In
contrast, the documents and forgeries now before us did not
require such meticulous fabrications.    Second, the government
contends that Adepoju used sophisticated means to create an
access device as defined by 18 U.S.C. § 1029(e)(1).    We reject
this argument because paper checks are not “access devices” as
defined by that statute.   See United States v. Tatum, 518 F.3d
(Continued)
                               17
       We    conclude         that    the      district       court          clearly     erred     in

imposing           the         sophisticated               means             enhancement          of

§ 2B1.1(b)(10)(C).                 This   result       stems      not       from   weighing       the

evidence       but    from     the    absence        of   factual           findings    where    the

district court gives little, if any, to consider.                                      See Llamas,

599 F.3d at 389.              Our conclusion by no means requires that the

court       find     the     existence         of     “highly          complex     schemes”       or

“exceptional          brilliance          to    justify           a     sophisticated           means

enhancement.”            United States v. Jennings, 711 F.3d 1144, 1145

(9th Cir. 2013).              The enhancement for sophisticated means does

require      more     than     just       thoughtful         or       potentially       successful

planning.       Bank fraud requires plans to wrongfully acquire funds

and,    where        § 1344(1)       is    at       issue,     misrepresentation.                 The

presence of forgeries or stolen identification, and a plan to

use     such    material        to     wrongfully         acquire            moneys,     does    not

necessarily          amount    to     sophistication.                  If    Adepoju’s     efforts

involved something especially more intricate and complex than

what    is     required       to     violate    the       bank        fraud    statute     in     its

simplest form, the court failed to identify those aspects.                                        To

affirm in the absence of such proof would permit enhancement

where the mere presence of and plan to use fraudulent materials




769, 772-73 (10th Cir. 2008); United States v. Hughey, 147 F.3d
423, 434 (5th Cir. 1998).


                                                18
is combined with a defendant’s inability to prove a lack of

sophistication.       We refuse to endorse such an approach.



                                           IV.

       Adepoju argues that his right to due process was violated

because the facts supporting the two-year minimum for aggravated

identity theft were not properly presented to the jury.                             Cf.

Alleyne v. United States, 133 S. Ct. 2151 (2013).                             We apply

plain error review to an objection based upon a new rule of law

not    in   effect     at    the     time    of     the       contested     proceeding.

Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013); see

United States v. Olano, 507 U.S. 725, 732 (1993) (explaining

plain error standard).             In Alleyne, the defendant was charged

under a statute that imposed varying mandatory minimums based on

different factual scenarios, and the Supreme Court held that a

jury   must   make    special      findings       as    to    any   facts   increasing

mandatory minimums.          133 S. Ct. at 2155-56, 2158, 2160.                     The

aggravated identity theft statute now at issue does not involve

varying mandatory minimums.                A finding that Adepoju knowingly

transferred,         possessed,       or         used        another’s      means    of

identification       could    only    result       in     a    consecutive     two-year

sentence.      See 18 U.S.C. §§ 1028A(a)(1), (b)(2).                        The jury’s

verdict thus supports the two-year sentence for this charge.                         No

error, plain or otherwise, occurred.

                                            19
                                     V.

      For the foregoing reasons, we affirm Adepoju’s bank fraud

and aggravated identity theft convictions.             We also affirm the

consecutive   two-year   minimum     sentence   for   aggravated   identity

theft.   Because the evidence failed to demonstrate that Adepoju

engaged in especially complex or intricate behavior above and

beyond that inherent in fraud, we vacate his sentence and remand

for   resentencing   without   the   enhancement      and   consistent   with

this opinion.



                                                      AFFIRMED IN PART,
                                          VACATED IN PART, AND REMANDED




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