                     REVISED MARCH 18, 2009
            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                                  Fifth Circuit

                                                                               FILED
                                                                            January 23, 2009
                                         No. 07-30916
                                                                         Charles R. Fulbruge III
                                                                                 Clerk
UNITED STATES OF AMERICA

                                                     Plaintiff - Appellee
v.

CORE L MORRIS also known as, Pretty Boy

                                                     Defendant - Appellant



                     Appeal from the United States District Court
                        for the Western District of Louisiana
                              USDC No. 5:07-CR-50003-1
                                   5:06-CR-50090-1


Before SMITH and SOUTHWICK, Circuit Judges, and ENGELHARDT, District
Judge.*
PER CURIAM:**
       Core Morris appeals the sentence imposed following his guilty plea. For
the reasons set forth below, we VACATE and REMAND for resentencing.




       *
           District Judge for the Eastern District of Louisiana, sitting by designation.
       **
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
                                     No. 07-30916

      Morris pled guilty to one count of a bill of information and two counts of
an indictment. The charge under the bill of information to which Morris
accepted guilt was for conspiracy to defraud insurance companies through use
of the mail, violating 18 U.S.C. §§ 371 and 1341. He also admitted his guilt to
a count in the indictment charging him with counterfeiting checks, violating 18
U.S.C. § 513. Finally, he pled guilty to using his mother’s social security number
to obtain a Louisiana driver’s license, violating 42 U.S.C. § 408(a)(7)(B). The
district court consolidated the bill of information and indictment charges for
sentencing purposes. The Presentence Report grouped each count together to
determine a sentencing range. See U.S.S.G. § 3D1.2 (allowing grouping when
all counts involve substantially the same harm).
      The PSR recommended a two-level enhancement for “the production or
trafficking of any (i) unauthorized access device or counterfeit access device, or
(ii) authentication feature.”       Id. § 2B1.1(b)(10)(B)(i), (ii).     It provided the
following explanation for applying the enhancement:
      As to Counts Five and Six, although no device making equipment
      was discovered by agents during the course of the investigation of
      this offense, it was determined the defendant was responsible for
      supplying counterfeit checks to at least twenty-five other
      individuals involved in this case; which included fraudulent bank
      account numbers printed on these counterfeit checks. Accordingly,
      pursuant to U.S.S.G. §§ 2B1.1(b)(10)(B)(i)&(ii), if the offense
      involved the production or trafficking of any (1) unauthorized access
      device or counterfeit access device, or (ii) authentication feature, the
      offense level is increased by two (2) points.

      The result of these calculations provided for a Guideline sentencing range
of 84 to 105 months imprisonment.1 At the sentencing hearing, the district court
orally imposed a within-Guidelines sentence of 96 months for the check



      1
         If the two-level enhancement had not been applied, Morris’s guideline range for an
offense level of 21 and criminal history category of V would have been 70 to 87 months.

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                                  No. 07-30916

counterfeiting and 5 years for each of the other two charges. All sentences were
to run concurrently. The subsequent written judgment, however, sentenced
Morris to “a total term of 96 months as to Count 1 of the bill of information and
Counts 5 and 6 of the indictment, with said counts to run concurrently.” The
statutory maximum for counts one and six is five years; the maximum on count
five is ten years.
      Morris timely appealed, arguing that the district court erred in applying
the Section 2B1.1(b)(10)(B) enhancement and that the written judgment was
unlawful because it went above the statutory maximum for counts one and six.
In response, the government concedes that the Section 2B1.1(b)(10)(B)
enhancement and the written sentence were inappropriate but nonetheless
contends that Morris is subject to a two-level enhancement under section
2B1.1(b)(10)(C). We now consider these arguments.
                                   Discussion
      Section 2B1.1(b)(10) provides for a two-level enhancement in these
circumstances:
      If the offense involved (A) the possession or use of any (i) device-
      making equipment, or (ii) authentication feature; (B) the production
      or trafficking of any (i) unauthorized access device or counterfeit
      access device, or (ii) authentication feature; 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, increase by 2 levels. If the resulting offense
      level is less than level 12, increase to level 12.

Application note 9(a) adopts the definitions found in 18 U.S.C. § 1029, a statute
that punishes “fraud and related activity in connection with access devices.”
That latter statute defines the relevant terms:
      (1) the term “access device” means any card, plate, code, account
      number, electronic serial number, mobile identification number,


                                        3
                                    No. 07-30916

      personal identification number, or other telecommunications
      service, equipment, or instrument identifier, or other means of
      account access that can be used, alone or in conjunction with
      another access device, to obtain money, goods, services, or any other
      thing of value, or that can be used to initiate a transfer of funds
      (other than a transfer originated solely by paper instrument);

      (2) the term “counterfeit access device” means any access device that
      is counterfeit, fictitious, altered, or forged, or an identifiable
      component of an access device or a counterfeit access device;

      (3) the term “unauthorized access device” means any access device
      that is lost, stolen, expired, revoked, canceled, or obtained with
      intent to defraud;
      ....

18 U.S.C. § 1029(e)(1)-(3).
      When a party properly objects, we review the district court’s sentence
enhancement de novo. United States v. Ocana, 204 F.3d 585, 588-89 (5th Cir.
2000). Under this standard, we will vacate a sentence if the district court
incorrectly applied the sentencing guidelines. 18 U.S.C. § 3742(e)(2).
      We reject the government’s contention that Morris did not properly
preserve his objection to the Section 2B1.1(b)(10)(B) enhancement in the district
court. Morris filed a written objection to the PSR, stating that another person
provided the “access device” for which the enhancement was applied. Though
he did not reference Section 2B1.1(b)(10)(B) directly, Morris used the identical
terminology – “access device” – found in that provision. This provided the
district court with notice of the grounds upon which Morris objected. See Ocana,
204 F.3d at 589 (recognizing that a specific citation to the enhancement section
at issue is not always required).
      Regardless, the government concedes that the application of the
enhancement would not survive a plain error review either. The district court
relied on an enhancement that calls for the “production” or “trafficking” of an


                                         4
                                 No. 07-30916

unauthorized “access device” or “authentication feature.” No factual basis exits
to support a conclusion that Morris produced or trafficked an access device. The
PSR states only that Morris supplied counterfeit checks to other individuals.
Supplying counterfeit checks is not the same as “producing” or “trafficking” an
unauthorized “access device” or “authentication feature.”
      Our prior cases compel this result. In United States v. Hughey, 147 F.3d
423 (5th Cir. 1998), the defendant was charged under 18 U.S.C. § 1029 with
“traffic[king] . . . or us[ing] one or more unauthorized access devices.” We
reversed the conviction because the defendant’s conduct involved only “the
creation and presentation of bad checks.” Hughey, 147 F.3d at 435. Similarly,
in United States v. Childs, 173 F. App’x 360 (5th Cir. 2006) (unpublished), we
vacated a defendant’s sentence after the government conceded “that the district
court erred in imposing a two-level sentencing enhancement pursuant to §
2B1.1(b)(10)(B)(i), based on the use of fictitious account numbers on checks.”
      Though the enhancement mentioned in the PSR is unusable, the
government invites us to consider whether Morris is subject to a two-level
enhancement under another section. The offered alternative applies if an
offense involves “the unauthorized transfer or use of any means of identification
unlawfully to produce or obtain any other means of identification.” U.S.S.G. §
2B1.1(b)(10)(C)(i). Morris argues that the enhancement is inapplicable because
he did not acquire a “means of identification” of someone “other than the
defendant.” See id. § 2B1.1, cmt. n.9(A).
      We decline to decide the applicability of this enhancement.           The
government did not argue this enhancement during sentencing and the district
court has not adopted it. The enhancement may be addressed upon remand.
      Because we vacate Morris’s sentence, the conflict between the district
court’s oral and written sentences is moot.
      Morris’s sentence is VACATED. We REMAND for resentencing.

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