                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-2859
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                             Norman Bernard Weaver

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                              Submitted: April 3, 2017
                               Filed: August 7, 2017
                                  ____________

Before WOLLMAN, LOKEN, and RILEY, Circuit Judges.
                         ____________

LOKEN, Circuit Judge.

       Norman Bernard Weaver pleaded guilty to conspiracy to commit bank fraud
in violation of 18 U.S.C. §§ 1344 and 1349. The district court1 overruled Weaver’s
objection to a two-level enhancement under U.S.S.G. § 2B1.1(b)(11)(C)(i), resulting


      1
       The Honorable David Gregory Kays, Chief Judge of the United States District
Court for the Western District of Missouri.
in an advisory guidelines sentencing range of 33 to 41 months in prison. The court
varied upward and sentenced Weaver to 96 months, expressly stating that “no matter
how these guidelines would have come out, I still get to the same place under the 18
U.S.C. 3553(a) factors.” Weaver appeals his sentence, arguing the district court
procedurally erred in imposing the § 2B1.1(b)(11) enhancement and the sentence is
substantively unreasonable. We affirm.

     I. The § 2B1.1(b)(11)(C)(i) “Means of Identification” Enhancement.

       For approximately ten years, several “crews” operating in various parts of the
country stole business mail that included business checks. Using bank account
numbers, bank routing numbers, and authorized payor signatures appearing on the
stolen checks, the conspirators created counterfeit checks payable to homeless
persons who were recruited to pass the bogus checks at local banks. From December
2012 to March 2013, Weaver was the leader of a crew that manufactured computer-
generated counterfeit checks and recruited homeless persons to cash the checks at
local banks in Kansas City, Missouri and Lincoln, Nebraska, using the payee’s
personal identification. See United States v. Norwood, 774 F.3d 476, 478-79 (8th
Cir. 2014). The issue is whether this scheme involved “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)(11)(C)(i).

       The Sentencing Commission adopted the § 2B1.1(b)(11)(C)(i) enhancement
in response to a congressional directive in § 4 of the Identity Theft and Assumption
Deterrence Act of 1998, Pub. L. 105-318. See U.S.S.G. App. C., Amend. 596. “This
subsection focuses principally on an aggravated form of identity theft known as
‘affirmative identity theft’ or ‘breeding,’ in which a defendant uses another
individual’s name, social security number, or some other form of identification (the
‘means of identification’) to ‘breed’ (i.e., produce or obtain) new or additional forms



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of identification . . . making it difficult for the individual victim to detect that the
victim’s identity has been ‘stolen.’” § 2B1.1, comment. (backg’d.).

        Section 2B1.1(b)(11)(C)(i) applies to “the unauthorized transfer or use of any
means of identification unlawfully to produce or obtain any other means of
identification.” “‘Means of identification’ has the meaning given that term in 18
U.S.C. § 1028(d)(7), except that such means of identification shall be of an actual
(i.e., not fictitious) individual, other than the defendant or a person for whose conduct
the defendant is accountable.” § 2B1.1, comment. (n.1).2 “‘Produce’” includes
manufacture, design, alter, authenticate, duplicate, or assemble.” Id. at comment.
(n.10(A)). The enhancement does not apply if the defendant merely uses a stolen
credit card to make a purchase, or forges a person’s signature to cash a stolen check.
Id. at comment. (n.10(C)(iii)). No “breeding” is involved in those offenses.

       Weaver raises a narrow interpretive issue on appeal. In Norwood, which
involved the same scheme, we rejected defendant’s contention that the conspirators
did not use a means of identification to produce another means of identification. We
upheld the § 2B1.(b)(11)(C)(i) enhancement, concluding that “produce” “include[s]
duplicating a means of identification such as a bank account number and transferring
it onto a new medium, such as a counterfeit check.” Norwood, 774 F.3d at 482;
accord United States v. Newsome, 439 F.3d 181, 185 (3d Cir. 2006). We agreed with
other circuits that a counterfeit check with an individual’s name, bank account
number, and bank routing number is a “means of identification” within the meaning
of 18 U.S.C. § 1028(d)(7). See Norwood, 774 F.3d at 482 n.2; accord United States
v. Alexander, 725 F.3d 1117, 1120 (9th Cir. 2013). Weaver argues that Norwood is
not controlling in this case because the guidelines commentary states that a means of


      2
      Section 1028(d)(7) broadly provides that “the term ‘means of identification’
means any name or number that may be used, alone or in conjunction with any other
information, to identify a specific individual,” then listing several examples.

                                          -3-
identification used to produce another means of identification must be that of “an
actual individual.” Here, Weaver and his coconspirators transferred the bank account
and bank routing numbers from a “fictitious business entity,” not an “individual.”

       We agree that our opinion in Norwood did not address this contention, but we
nonetheless reject it. The means of identification that Weaver and his co-conspirators
stole included not only the bank account and routing numbers of business bank
accounts; it also included the authorized “individual payor’s signature,” a means of
identification that was essential to creating a counterfeit check that could be cashed
by the homeless person payee. These account signatories “are natural persons and
were victims of the identity theft.” United States v. Barnette, 2015 WL 3879875, at
*5 (W.D. Va. Jun. 23, 2015); accord United States v. Williams, 553 F. App’x 516,
518 (6th Cir.), cert. denied, 134 S. Ct. 2713 (2014); United States v. Johnson, 261 F.
App’x 611, 613-14 (4th Cir. 2008). Though cashing a counterfeit business check
does not steal the signatory’s personal assets, the signatory is a victim of the crime.
He or she is likely to suffer embarrassment, loss of stature in the enterprise, and may
even be liable for the loss. Thus, Weaver’s offense involved “affirmative identity
theft or breeding” -- not just forging a signature to cash a stolen check -- and his
victims included individual signatories whose means of identification (their names)
were used to produce another means of identification (counterfeit checks). The
district court did not err in imposing the two-level § 2B1.1(b)(11)(C)(i) enhancement.

       In his Reply Brief, Weaver argues that the government failed to prove “that the
payor signature on each of the checks was the fake signature of a real person.” Even
if timely raised on appeal, this issue was not properly preserved. The Presentence
Investigation Report stated that the conspirators “scanned the authorized signatures
on the face of the checks to make them appear authentic,” and that the criminal
scheme involved “the unauthorized transfer of . . . scanned authorized signatures to
produce other means of identification (counterfeit checks).” Though Weaver objected
to the § 2B1.1(b)(11)(C)(i) enhancement, he did not object to those fact statements.

                                         -4-
              II. The Sentence Is Not Substantively Unreasonable.

       At sentencing, the district court carefully explained that it considered all the
§ 3553(a) sentencing factors and imposed a substantial upward variance based on the
offense conduct; Weaver’s under-represented criminal history (“You’re the first
category I criminal history I’ve ever met that has two felonies as a juvenile, six
felonies as an adult.”); and the need to promote effective deterrence by imposing a
greater sentence than the 87-month sentence Weaver received for a 1991 drug and
firearm offense. Weaver argues the 8-level upward variance was substantively
unreasonable because the court failed to adequately consider the guidelines range,
gave too much weight to his criminal history, and failed to consider Sentencing
Commission reports noting that offenders like Weaver who are 51 years old have
lower recidivism rates. “A district court has wide latitude to weigh the § 3553(a)
factors in each case and assign some factors greater weight than others.” United
States v. Lasley, 832 F.3d 910, 914 (8th Cir. 2016) (quotation omitted), cert. denied,
137 S. Ct. 823 (2017). The district court carefully explained why it concluded that
an upward variance was warranted. There was no abuse of the court’s substantial
sentencing discretion.

      The judgment of the district court is affirmed.
                     ______________________________




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