                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0735n.06

                                             No. 09-5734                                     FILED
                                                                                         Nov 22, 2010
                           UNITED STATES COURT OF APPEALS                          LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


                                                           )
UNITED STATES OF AMERICA,                                  )
                                                           )
        Plaintiff – Appellee,                              )         ON APPEAL FROM THE
                                                           )         UNITED STATES DISTRICT
                v.                                         )         COURT FOR THE WESTERN
                                                           )         DISTRICT OF TENNESSEE
ROBIN LEE JOHNSON,                                         )
                                                           )
        Defendant – Appellant.                             )



Before: NORRIS, ROGERS, and WHITE, Circuit Judges.

        HELENE N. WHITE, Circuit Judge. Robin Lee Johnson (Johnson) was convicted by a

jury of one count of conspiracy to defraud a financial institution, in violation of 18 U.S.C. § 371, and

six counts of bank fraud, in violation of 18 U.S.C. § 1344. She appeals her eighteen-month sentence.

We vacate and remand for re-sentencing.

                                                   I

        In early 2007, Bobby Earl Turner approached defendant Johnson and offered her $1,000 to

participate in a bank-fraud scheme. Johnson agreed. Turner identified a Wachovia Bank account

registered to a Robin L. Johnson (Robin L.) and arranged for the address and date of birth on the

account to be changed to match Johnson’s. On August 17, 2007, Turner took Johnson to a Bank of



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No. 09-5734
United States v. Johnson

America branch and instructed her to open an account using her own name and social security

number. He then took Johnson to a Wachovia Bank branch and had her wire $40,000 from Robin

L.’s account to the newly-opened Bank of America account. The next day, Johnson and Turner

visited several Bank of America branches, making withdrawals of approximately $28,000. Turner

gave Johnson $500. At some later point, Turner gave Johnson a Wachovia credit card in the name

of Robin L. Johnson and took Johnson to a Mississippi casino, where she used the credit card to

obtain $9,000 in cash advances.

                                             II

       Johnson’s base offense level was seven. The Presentence Report (PSR) applied a six-level

enhancement because the loss was greater than $30,000 but less than $70,000, and a two-level

enhancement pursuant to § 2B1.1(b)(10)(C)(i) for the unauthorized transfer/use of a means of

identification to produce another means of identification. The § 2B1.1(b)(10)(C)(i) enhancement

was based on Johnson’s use of her own identification to open an account in the name of another

person. With a criminal history category of I and an offense level of fifteen, Johnson’s Guidelines

range was eighteen to twenty-four months’ imprisonment.

       Johnson objected to the application of the § 2B1.1(b)(10)(C)(i) enhancement because she

used her own identifying information in the course of the bank fraud, not the identification of

another. The Government had no objections to the PSR. The Probation Office responded to

Johnson’s objections, stating that the enhancement was appropriate because Johnson “opened a Bank

of America account in the name of Robin L. Johnson without the authorization of Robin L.



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United States v. Johnson

Johnson.” The response also noted that Johnson was given a Wachovia credit card in Robin L.’s

name.

          At sentencing, the district court questioned Johnson about the use of the Wachovia credit

card. Through counsel, Johnson admitted that the card was issued to Robin L. However, Johnson

stated that the card was unrelated to the Wachovia bank account, and reiterated that the enhancement

did not apply because she did not use the information of another person. The Government conceded

that the § 2B1.1(b)(10)(C)(i) enhancement did not apply to Johnson’s opening of a bank account in

her own name, but argued that it should apply to the use of the credit card. The district court found

that the two-level enhancement applied based on the use of the credit card.             Thus, the court

ultimately accepted the PSR-calculated Guidelines range.

          The court considered the § 3553(a) factors before determining that Johnson should be

sentenced at the low end of the Guidelines range. She appeals, challenging the application of a two-

level enhancement pursuant to U.S.S.G. § 2B1.1(b)(10)(C)(i), and asserting that the district court

imposed an unreasonable sentence.

                                                    III

          Johnson’s challenge to the district court’s application of § 2B1.1(b)(10)(C)(i) is one of

procedural reasonableness. A sentence is unreasonable if it contains “significant procedural error,

such as . . . improperly calculating[] the Guidelines range[.]” Gall v. United States, 552 U.S. 38, 51

(2007).

          Guideline § 2B1.1(b)(10)(C)(i) instructs that if an offense involves “the unauthorized transfer

or use of any means of identification unlawfully to produce or obtain any other means of

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United States v. Johnson

identification . . . increase [the offense level] by 2 levels. If the resulting offense level is less than

level 12, increase to level 12.” The enhancement focuses on the “breeding” of identities, or

“affirmative identity theft,” where innocuous personal information is fraudulently used, for example,

to apply for a loan. See United States v. Williams, 355 F.3d 893, 898 (6th Cir. 2003) (citing U.S.S.G

§ 2B1.1 cmt. background (2000)). The minimum offense level of twelve reflects the difficulty of

detecting the crime before “certain harms occur[], such as a damaged credit rating or an inability to

obtain a loan.” Id.

        Courts have noted that the enhancement is “rather awkwardly written” and there is a “paucity

of helpful case law” interpreting the enhancement. See, e.g., United States v. Hawes, 523 F.3d 245,

249, 250 (3d Cir. 2008) (internal quotation marks and citations omitted). At its base, the

enhancement requires the Government to demonstrate that one means of identification was used to

create a second means of identification. See, e.g., Williams, 355 F.3d at 898 (“the . . . enhancement

applied because [defendants] used a means of identification, i.e., a social security number of another,

to obtain another means of identification, i.e., a bank loan number.”).

        The application notes for § 2B1.1(b)(10)(C)(i) supply two examples of situations in which

the enhancement is applicable, and two where it is not:

        (ii) Examples.- Examples of conduct to which subsection (b)(10)(C)(i) applies are
        as follows:

                (I) A defendant obtains an individual's name and social security
                number from a source (e.g., from a piece of mail taken from the
                individual's mailbox) and obtains a bank loan in that individual's
                name. In this example, the account number of the bank loan is the
                other means of identification that has been obtained unlawfully.


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No. 09-5734
United States v. Johnson

               (II) A defendant obtains an individual's name and address from a
               source (e.g., from a driver's license in a stolen wallet) and applies for,
               obtains, and subsequently uses a credit card in that individual's name.
               In this example, the credit card is the other means of identification
               that has been obtained unlawfully.

       (iii) Nonapplicability of Subsection (b)(10)(C)(i).-Examples of conduct to which
       subsection (b)(10)(C)(i) does not apply are as follows:

               (I) A defendant uses a credit card from a stolen wallet only to make
               a purchase. In such a case, the defendant has not used the stolen
               credit card to obtain another means of identification.

               (II) A defendant forges another individual's signature to cash a stolen
               check. Forging another individual's signature is not producing
               another means of identification.

U.S.S.G § 2B1.1, Application Note 9(C).

       The instant case does not squarely fall into any of the Application Note examples, in large

part because the unusual circumstance of the victim and the defendant sharing the same name makes

it difficult to determine whose identity was used to create or obtain the credit card. It is undisputed

that the card was issued to Robin L., not Johnson, and that § 2B1.1(b)(10)(C)(i) treats the card as a

created or obtained means of identification. Thus, the Government bore the burden of demonstrating

that Johnson or her co-conspirators made unauthorized use of a means of identification to create or

obtain the card, or used the card to create or obtain an additional form of identification. However,

the record is almost entirely devoid of information about the card’s provenance. The sum of the

evidence presented regarding the card was two brief statements at Johnson’s trial in the testimony

of Secret Service Agent William Jordon, a reference to the card in Johnson’s PSR, and a brief

exchange among Johnson, her counsel and the district court at Johnson’s sentencing hearing.


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No. 09-5734
United States v. Johnson

       The credit card did not feature prominently in Johnson’s trial, which focused on the

fraudulent bank transfers. The only references made to the card were two statements by Agent

Jordon, a prosecution witness. On direct-examination Jordon stated that after Johnson was arrested,

she “surrendered to us a Wachovia Visa debit card that was related to the account that had been

shipped into Memphis. After they changed the information, they shipped out a card into Memphis.”1

On cross-examination, Jordon clarified that Johnson told him that “they intercepted a Wachovia card

that was sent to an address in Memphis and that they went and got cash withdrawals off of that

Wachovia card.”

       Johnson’s PSR included in its recitation of the offense conduct that “Johnson stated that

[Turner] also gave her a Wachovia credit card in the name Robin Johnson. Johnson was taken to

a casino in Mississippi where she received $9,000 in cash advances from the credit card.” Johnson

did not object to this characterization.

       Finally, at sentencing, Johnson, her attorney and the district court engaged in the following

exchange in an effort to clarify the card’s origin:

       THE COURT: . . . [I]s it disputed that your client, that Ms. Johnson had possession
       of the Wachovia credit card and that she used that credit card to obtain the -- this says
       $9,000 -- approximately $9,000 in cash advances?

       MS. GARNER: No, Your Honor, we cannot dispute that.

       THE COURT: All right. So she had the Wachovia credit card. Of course I think you
       said earlier that it is your position that someone else opened the Wachovia account.


       1
        Johnson’s defense at trial was that she had an informal arrangement with local police to be
an informant and that she participated in the conspiracy in order to gather information. The credit
card only came to the attention of investigators because Johnson surrendered it.

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No. 09-5734
United States v. Johnson


       MS. GARNER: That is correct, Your Honor.

       THE COURT: But Ms. Johnson possessed the credit card.

       THE WITNESS: Yes, Your Honor.

       THE COURT: From that account?

       THE WITNESS: Yes, Your Honor.

       THE COURT: That was issued as a result of that account.

       THE DEFENDANT: Huh-uh, different accounts. Completely different accounts.

       MS. GARNER: And Ms. Johnson is talking, Your Honor, but she's advising that
       they were two different accounts.

       THE COURT: Well, let me go about it a different way then. Whichever account it
       was, is it disputed that Ms. Johnson used a Wachovia credit card account -- excuse
       me -- a Wachovia credit card that was issued in the name of what I'll call the real
       Robin L. Johnson to obtain the $9,000 in cash advances from the casino?

       MS. GARNER: We cannot dispute that, Your Honor.

Following this understandably confusing exchange, the Government stated its position that

§ 2B1.1(b)(10)(C)(i) applied to the instant case because the conduct involved “using somebody

else's information to obtain a credit card they are not entitled to and then going and obtaining money

or services on that credit card.” The court agreed, finding that,

       a credit card was then issued from the Wachovia account based upon the Wachovia
       account to Robin Johnson, and the defendant Robin Lee Johnson took possession of
       that credit card, and according to the evidence before the court, utilized that credit
       card to go to a casino in Mississippi where she received roughly $9,000 in cash
       advances by using the credit card. So it appears to the court that under
       2B1.1(b)(1[0])(C)(i), it appears to the court that the enhancement referred to there
       would be appropriate based upon this defendant's use of the credit card to obtain the
       cash advances from the casino in Mississippi.”

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No. 09-5734
United States v. Johnson

(emphasis added). The court made no reference to Jordon’s testimony.

        We note that both the Government’s argument and the court’s statement appear to focus on

the use of the credit card. For the application of § 2B1.1(b)(10)(C)(i), however, it is irrelevant

whether the card was used to obtain advances or make purchases. The enhancement applies to the

creation of the card, and specifically to the unauthorized use of a means of identification in order to

create the credit card, the second means of identification, or the use of the card to create an additional

means of identification.

        On appeal, the Government argues that "the defendant, in conspiracy with [others], made

unauthorized use of one means of identification (her own name, address and date of birth) to obtain

another means of identification (the Wachovia credit card), which the defendant then used to

wrongfully obtain money." The Government neglects to explain how the use of Johnson’s identity

was “unauthorized,” and, as noted above, the use of the card is not relevant.

        The Government further argues the enhancement applies because Johnson “has admitted that

the card was issued on an account belonging to the victim with the same name as hers.” This again

fails to address whether the card was created through the unauthorized use of a means of

identification, or used to create another form of identification. Notably absent from the record is any

information regarding when and how the credit-card account was opened, whether the information

about the card-holder was altered, as in the bank account, or what caused the “intercepted” credit

card to be sent. As in the bank account, the co-conspirators may have simply changed the

information on the account to match Johnson’s and used Johnson’s information, not Robin L.’s, to

obtain the card. We need not speculate on every manner in which Johnson could have obtained a

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No. 09-5734
United States v. Johnson

credit card in Robin L.’s name. Johnson may well have engaged in conduct supporting the

application of the enhancement. However, the record before us does little more than show that

Johnson used a credit card issued in Robin L.’s name to secure $9,000. This alone is insufficient to

trigger the application of § 2B1.1(b)(10)(C)(i).

                                                   III

       For the foregoing reasons, we VACATE Johnson’s sentence and REMAND for further

sentencing proceeding consistent with this opinion.




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