In the
United States Court of Appeals
For the Seventh Circuit

No. 01-3251

United States of America,

Plaintiff-Appellee,

v.

Robert L. Baronia,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 702--Milton I. Shadur, Judge.

Argued February 21, 2002--Decided April 19, 2002



  Before Flaum, Chief Judge, and Harlington
Wood, Jr., and Williams, Circuit Judges.

  Williams, Circuit Judge. Rather than
making money the old-fashioned way,
defendant Robert Baronia produced more
than $1,600 in counterfeit currency by
scanning the front and back of genuine
$1, $5, $10, and $20 bills onto his
computer. After scanning the bills, he
printed, cut, and crumpled them up to
give them an aged appearance. Though it
took him 15 attempts to correctly line up
the front and back of the bills, he
finally produced ones that were good
enough to fool employees at four
different commercial establishments
before arousing suspicion.

  After Baronia pleaded guilty to
counterfeiting in violation of 18 U.S.C.
sec. 471, the trial court found that the
counterfeit bills he produced were not
obvious forgeries and enhanced his
sentence pursuant to sec. 2B5.1(b)(2) of
the United States Sentencing Guidelines.
Baronia appeals his sentence, arguing
that the enhancement does not apply to
him because he was not a large-scale
producer and because the method he used
to produce the bills was unsophisticated.
We affirm.

ANALYSIS
  According to the guideline in effect at
the time Baronia was sentenced, the base
offense level for violating 18 U.S.C.
sec. 471 is 9, but is increased to 15 if
the defendant "manufactured or produced"
the counterfeit currency. U.S.S.G.
sec.sec. 2B5.1(a) & (b)(2) (2000). The
purpose of the enhancement is to punish
more severely "a defendant who produces,
rather than merely passes, the
counterfeit items." U.S.S.G. sec. 2B5.1,
cmt. background.

  Baronia first argues that the word
"manufacture" in subsection (b)(2)
requires that a defendant be a "large
scale" producer. Whether the district
court properly interpreted the sentencing
guideline is a question we review de
novo. United States v. Mayberry, 272 F.3d
945, 948 (7th Cir. 2001). There is no
reference to quantity in the language of
subsection (b)(2), and we see no basis
for inferring such a requirement.
Subsection (b)(1) already provides for a
level enhancement if the amount
counterfeited is more than $2000, so it
would be somewhat redundant to read
subsection (b)(2) as providing an
enhancement for producers of an undefined
"large amount" of currency.

  Baronia next argues that the subsection
(b)(2) enhancement is intended to apply
only to counterfeiters who use
sophisticated methods to produce the
counterfeit items. At the time of
Baronia’s sentence, the commentary to
sec. 2B5.1 identified the following
exception to the enhancement for certain
counterfeiters:

Subsection (b)(2) does not apply to
persons who merely photocopy notes
or otherwise produce items that are
so obviously counterfeit that they
are unlikely to be accepted even if
subjected to only minimal scrutiny.
U.S.S.G. sec. 2B5.1, cmt. n.4. Baronia
reads Application Note 4 as exempting
from the enhancement counterfeiters who
either (1) produce fake bills by
photocopying or (2) produce an obvious
forgery by some other method. He does not
contend that the bills he made were
"obviously counterfeit." Instead, he
argues that because his method of
scanning the bills onto his computer was
the functional equivalent of
photocopying, section (b)(2) should not
apply.

  We disagree with Baronia’s reading of
Application Note 4. We do not read the
language as creating two separate and
distinct situations in which section
(b)(2) would not apply. The "obviously
counterfeit" language in the note
modifies and limits both the "merely
photocopy" and the "otherwise produce"
language, and therefore the note
describes only one situation: when the
method used by the counterfeiter produces
an obvious forgery--whether by
photocopying or some other method. See
United States v. Stanley, 23 F.3d 1084,
1086 (6th Cir. 1994).

  The proper inquiry for exclusion from
subsection (b)(2) is not how the bills
were made, but rather how well they were
made. Under Baronia’s reading, the
counterfeiter who uses a photocopier is
off the hook regardless of the quality of
the counterfeit items. This reading
conflicts with the purpose of the
enhancement and has been rejected by
every circuit to consider the question.
See United States v. Wyjack, 141 F.3d
181, 183-84 (5th Cir. 1998); United
States v. Miller, 77 F.3d 71, 76 (4th
Cir. 1996); Stanley, 23 F.3d at 1086;
United States v. Taylor, 991 F.2d 533,
535-36 (9th Cir. 1993); United States v.
Bruning, 914 F.2d 212, 213 (10th Cir.
1990).

  The purpose of the enhancement is to
punish those who produce counterfeit
items more harshly than those who simply
pass the items. U.S.S.G. sec. 2B5.1, cmt.
background. If the items are obviously
counterfeit, there is less reason to
punish that counterfeiter more severely
because the items are unlikely to be
accepted and the harm done by the
producer is less. United States v.
Barnes, 188 F.3d 893, 894 (7th Cir.
1999). A producer of obvious forgeries is
also "more likely to be caught and so the
punishment need not be so severe in order
to maintain the proper level of
deterrence." Id. at 894.

  By contrast, the particular technology
used to make the counterfeit items may,
but will not always, directly correlate
with the likelihood of detection. A
relatively primitive method may produce a
good imitation; a sophisticated method
might produce an obvious fake. It would
be arbitrary and unreasonable to apply
the lighter sentence to certain
defendants simply because they happen to
use photocopiers. See Bruning, 914 F.2d
at 213.

  As further support for his argument,
Baronia points to a recent amendment to
Application Note 4 (which took effect
after he was sentenced), which removes
the "merely photocopy" language from the
application note, but we think the
amendment and the accompanying commentary
conclusively rebuts his interpretation.
See Amendment 618, U.S.S.G. app. C supp.
(Nov. 1, 2001). In its explanation for
the amendment, the Commission
acknowledged that language in the earlier
commentary to sec. 2B5.1 suggested "that
[section (b)(2)] did not apply if a
defendant ’merely photocopies.’" Id. It
explained, however, that "that commentary
was intended to make [section (b)(2)]
inapplicable to notes that are so
obviously counterfeit that they are
unlikely to be accepted." Id. The
amendment and explanation not only
eliminate Baronia’s argument for cases
arising under the amended guideline, it
also demonstrates that his argument was
contrary to the Commission’s intent to
begin with.

CONCLUSION

  The court’s enhancement of Baronia’s
sentence pursuant to section (b)(2) was
proper and the sentence is therefore
Affirmed.
