           Case: 17-12117   Date Filed: 02/14/2018   Page: 1 of 4


                                                     [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-12117
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 2:16-cr-14076-DMM-3



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

STEPHANE RANDOLPH BLAIN,

                                                         Defendant-Appellant.

                       ________________________

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

                            (February 14, 2018)

Before WILSON, NEWSOM, and FAY, Circuit Judges.

PER CURIAM:
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      Stephane Randolph Blain appeals the district court’s decision to apply a two-

level sentencing enhancement pursuant to U.S.S.G. § 2B1.1(b)(11)(B)(i) and

(C)(i),(ii). The enhancement is for production or trafficking of unauthorized access

devices. Blain argues that the district court improperly applied the enhancement

because the fraudulently opened bank accounts at issue were not opened in Blain’s

name, or in the names of any of his co-conspirators; the government produced no

evidence of “direct contact” between Blain and the bank; and no embossing

machines or other card production technology was found in this case.

      We review the district court’s legal conclusions de novo and its factual

findings for clear error. United States v. Cruz, 713 F.3d 600, 605 (11th Cir. 2013).

Interpretation of the Guidelines begins with the “plain language and, absent

ambiguity, no additional inquiry is necessary.” Id. at 607.

      Section 2B1.1(b)(11) provides for a two level increase if the offense

involved:

      (B) the production or trafficking of any (i) unauthorized access device
      or counterfeit access device, or . . . (C)(i) the unauthorized transfer or
      use of any means of identification unlawfully to produce or obtain any
      other means of identification, or (ii) the possession of 5 or more
      means of identification that unlawfully were produced from, or
      obtained by the use of, another means of identification.

§ 2B1.1(b)(11). “Production” is broadly construed and “includes a situation in

which a defendant willfully causes or induces an innocent third party to produce an

unauthorized access device.” United States v. Taylor, 818 F.3d 671, 678–79 (11th
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Cir. 2016). “Unauthorized access device” includes cards or personal identification

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

value” that were stolen or obtained with the intent to defraud. 18 U.S.C. § 1029(e);

see § 2B1.1, cmt. n.10(A). Debit cards and social security numbers are “access

devices.” United States v. Wright, 862 F.3d 1265, 1275–76 (11th Cir. 2017). In

Taylor, we held that production of an unauthorized access device “encompasses a

situation in which the defendant cause[s] an innocent third party to create the

fraudulent device at the defendant’s behest.” Taylor, 818 F.3d at 678–79.

       Here, we conclude that the district court did not err in applying the

enhancement under § 2B1.1(b)(11) because Blain produced an unauthorized access

device. 1 The factual basis to which Blain stipulated noted:

    The defendant and others conspired and engaged in a scheme to defraud
    the United States Government of money through the filing of false tax
    returns to the Internal Revenue Service (“IRS”). The scheme utilized
    others’ personal identifying information (“PII”) to file the fraudulent tax
    returns claiming tax refunds. The funds were then electronically deposited
    into bank accounts and subsequently withdrawn using debit cards opened
    in the names of identity theft victims.

(emphasis added). It further stated that Blain “made several ATM withdrawals

using unauthorized access devices (debit cards) assigned to the fraudulently

opened Regions Bank accounts” of the identity theft victims. In his brief on

1
  Blain is held responsible for obtaining these debit cards, even if one of his co-conspirators
physically performed the act. See Taylor, 818 F.3d 671, 678 & n.7 (“A sentencing enhancement
may apply even when premised on a co-conspirator’s actions because a defendant is responsible
for the reasonably foreseeable acts of his co-conspirators.”).

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appeal, Blain concedes that “his co-conspirators used stolen information to

open the accounts and debit cards were issued on those accounts,” but he

argues that because “no embossing or other bank card production machinery

was ever determined to have been used during the conspiracy to manufacture

debit cards,” he could not have “produced” the debit cards. However, under

Taylor, causing the bank to physically create the unauthorized debit card was

sufficient to constitute “production.” 2

       AFFIRMED.




2
 The PSI also cited to § 2B1.1(b)(11)(C)(i), but Blain does not raise any argument regarding this
subsection. Accordingly, any challenge in that respect is abandoned. Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). This subsection alone is sufficient to
sustain the enhancement.
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