                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-12096                ELEVENTH CIRCUIT
                                   Non-Argument Calendar            FEBRUARY 22, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                          D.C. Docket No. 4:09-cr-00021-RH-WCS-7

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                               Plaintiff - Appellee,

                                           versus

ANTHONY KELLAM,

lllllllllllllllllllll                                            Defendant - Appellant.

                                ________________________

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

                                     (February 22, 2011)

Before BARKETT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

         Anthony Kellam appeals his 94-month total sentence, imposed after he

pleaded guilty to conspiracy to commit fraud in connection with counterfeit credit
cards or other access devices (Count 1); fraud in connection with counterfeit credit

cards or other access devices (Count 2); and aggravated identity theft (Count 10).

He raises two issues on appeal. First, Kellam argues that the district court erred in

imposing the two-year consecutive sentence mandated by the aggravated identity

theft statute, 18 U.S.C. § 1028A, because its application created an unwarranted

sentence disparity in contravention of 18 U.S.C. § 3553. Second, Kellam argues

that the district court erred in counting certain parent companies and their

subsidiaries as separate “victims” under U.S.S.G. § 2B1.1(b)(2)(B). Upon review

of the record and consideration of the parties’ briefs, we affirm.

      We review a district court’s interpretation of a statute de novo. United

States v. Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009) (per curiam), cert. denied,

131 S. Ct. 633 (2010). “We review findings of fact for clear error and application

of the sentencing guidelines de novo.” United States v. Gupta, 572 F.3d 878, 887

(11th Cir. 2009), cert. denied, 130 S. Ct. 1302 (2010). “‘Although review for clear

error is deferential, a finding of fact must be supported by substantial evidence.’”

Id. (quoting United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007)).

And at sentencing, “‘[w]hen a defendant challenges one of the factual bases of his

sentence,’” the government must, “‘with reliable and specific evidence,’” establish

that fact by a preponderance of the evidence. Id. (quoting United States v.

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Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997)). “‘Whether a person is a victim’

under the Sentencing Guidelines ‘is a legal conclusion we review de novo.’”

United States v. Ellisor, 522 F.3d 1255, 1275 (11th Cir. 2008) (quoting United

States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007)).

      To address Kellam’s first argument, we must begin with § 1028A’s plain

language. See Segarra, 582 F.3d at 1271. “If the statute’s meaning is plain and

unambiguous, there is no need for further inquiry.” Id. (quoting United States v.

Fisher, 289 F.3d 1329, 1337–38 (11th Cir. 2002) (internal quotation and citation

omitted)). In pertinent part, § 1028A states:

       (b) Consecutive sentence. -- Notwithstanding any other provision of law --

             ...

             (3) in determining any term of imprisonment to be imposed for
             the [underlying felony], a court shall not in any way reduce the
             term to be imposed for such crime so as to compensate for, or
             otherwise take into account, any separate term of imprisonment
             imposed or to be imposed for a violation of [§ 1028A] . . . .

18 U.S.C. § 1028A(b) (emphasis added).

      We interpreted a similar statute, 18 U.S.C. § 924(c), in United States v.

McLymont, 45 F.3d 400 (11th Cir. 1995) (per curiam). In McLymont, we

concluded that “Congress’ use of the phrase ‘notwithstanding any other provision

of law’ makes it clear that Congress intended the penalty provisions of § 924(c) to

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take precedence over any preexisting or subsequently-enacted sentencing

legislation, including the Sentencing Guidelines.” 45 F.3d at 401. Section 1028A

plainly prohibits a district court from reducing a defendant’s sentence for his or

her underlying offense in order to compensate for the statute’s mandatory two-year

sentence. See 18 U.S.C. § 1028A(b)(3). And this mandate “take[s] precedence

over any preexisting or subsequently-enacted sentencing legislation,” including §

3553’s sentencing factors. See McLymont, 45 F.3d at 401. Consequently, the

district court did not err either in sentencing Kellam to an additional two years

pursuant to § 1028A, or in disregarding that additional two-year term in imposing

sentences for Kellam’s underlying offenses, regardless of the disparity between his

total sentence and those of his co-defendants.

      As to Kellam’s second argument, the government introduced testimony at

the sentencing hearing establishing that the following financial institutions were in

some way involved in parent-subsidiary relationships at the time of the offense

conduct: (1) GE Money Bank and GE Capital Finance; (2) Chase Bank and

JPMorgan Chase Bank; (3) Wells Fargo and Wachovia; and (4) Bank of America

and FIA Card Services. Taking these relationships into account, the district court

found that there were 52 separate victims.

      The Sentencing Guidelines impose a four-level enhancement when an

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offense involves 50 or more victims. U.S.S.G. § 2B1.1(b)(2)(B). “Victim” is

defined as “any person who sustained any part of the actual loss determined

under” § 2B1.1(b)(1). U.S.S.G. § 2B1.1 cmt. n.1. And “individuals, corporations,

[and] companies . . .” are included, among other entities, in the definition of

“[p]erson.” Id. The commentary does not explain whether a parent company and

its subsidiary should be treated as one or multiple victims. But generally a parent

company and its subsidiary are separate entities unless “the corporate veil can be

pierced.” See Atlanta Gas Light Co. v. UGI Utils., Inc., 463 F.3d 1201, 1204 (11th

Cir. 2006).

      Based on the testimony presented at the sentencing hearing, the district

court’s factual findings regarding the nature of the business relationships among

the entities in question were not clearly erroneous. And because nothing

suggested that the corporate veil had been or should be pierced, the district court

correctly determined that these parent companies and their subsidiaries were

separate victims. Accordingly, we affirm.

      AFFIRMED.




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