United States v. Sylvester Knight, Jr.

506 F. App'x 440
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 26, 2012
Docket11-5774, 11-5818
StatusUnpublished
Cited by13 cases

This text of 506 F. App'x 440 (United States v. Sylvester Knight, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sylvester Knight, Jr., 506 F. App'x 440 (6th Cir. 2012).

Opinions

MERRITT, Circuit Judge.

This identity theft case arises from a scheme in which participants obtained stolen credit card numbers, encoded retailers’ gift cards with those numbers, and then used the fraudulent gift cards to purchase legitimate gift cards and merchandise. Defendants David Lyles and Sylvester Knight appeal their sentences after each pleaded guilty to one count of Conspiracy to Commit Access Device Fraud, 18 U.S.C. § 371; one count of Access Device Fraud under 18 U.S.C. § 1029(a)(2); one count of Access Device Fraud under 18 U.S.C. § 1029(a)(3); and one count of Aggravated Identity Theft, 18 U.S.C. § 1028A. The district court sentenced Lyles to 164 months’ imprisonment and Knight to 124 months’ imprisonment. In reaching its judgment, the district court included multiple sentence enhancements under the United States Sentencing Guidelines, several of which are relevant here.1 First, it increased each defendant’s sentence by fourteen levels for causing a loss of more than $400,000 but less than $1 million. U.S.S.G. § 2Bl.l(b)(l)(H). The actual loss was much less than $400,000, but U.S.S.G. § 2B1.1 cmt. n. 3 (F)(i) requires that the loss “per access device” “shall not be less than $500.” Second, the district court imposed a four-level increase because the offense involved over fifty victims. U.S.S.G. § 2Bl.l(b)(2)(B). Third, it imposed a two-level increase because the defendants relocated to another jurisdiction to evade law enforcement and because the offense otherwise involved sophisticated means. U.S.S.G. § 2Bl.l(b)(9)(A), (C). Finally, it added another two levels because the crime involved the use of device-making equipment to create fraudulent gift cards. U.S.S.G. § 2Bl.l(b)(10)(A)(i).

On appeal, each defendant challenges the district court’s calculation of these enhancements. Lyles argues that the district court should have determined the amount of loss by using the actual loss caused through use of 192 stolen credit card numbers to make purchases. Knight also argues that the district court’s loss calculation was erroneous, but under the theory that the commentary for U.S.S.G. § 2B1.6 precludes sentence enhancements when a defendant is charged with both Access Device Fraud and Aggravated Identity Theft. Using the same reasoning, Knight challenges his sentence enhancements for the number of victims involved and for relocation to evade law enforcement and use of sophisticated means. In [443]*443the alternative, Knight challenges the latter enhancement by arguing that the Government did not offer sufficient proof to support it. Additionally, both defendants argue that there was insufficient proof for the district court to impose the enhancement for device-making equipment. Finally, Knight argues that the district court erred in denying him a three-level reduction under U.S.S.G. § 2Xl.l(b)(2).

In addition to their challenges to the district court’s Guidelines calculations, the defendants argue that their sentences were procedurally and substantively unreasonable. Lyles further claims that the imposition of punishment under both 18 U.S.C. § 1029(a)(2) and 18 U.S.C. § 1028A violates the Double Jeopardy Clause.

After considering these arguments, we find no reversible error in the district court’s decision. We therefore affirm each defendant’s sentence.

I. Background

In February 2010, Knight, Lyles, and co-defendants were arrested at the Nashville airport after law enforcement discovered over 1,600 gift cards in their luggage, 977 of which were found to be encoded with credit information stolen from the customers of twenty-eight separate financial institutions. The remaining cards were authentic and contained a value of approximately $61,419. The authentic cards were the fruits of a scheme in which participants obtained stolen credit information and encoded this information onto retailers’ gift cards. They then used the fraudulent gift cards to purchase legitimate gift cards and other items at thirteen Wal-Mart stores in the Nashville area. In total, participants used 192 stolen credit card numbers to make purchases. Knight was found to have used forty-one stolen numbers to purchase seventy-eight gift cards worth $7,969.22. Lyles was found to have bought $96.68 worth of merchandise using two stolen numbers.

Lyles and Knight were each charged with Conspiracy to Commit Access Device Fraud under 18 U.S.C. § 371; two separate substantive counts of Access Device Fraud under 18 U.S.C. § 1029(a)(2) and (3)2; and one count of Aggravated Identity Theft under 18 U.S.C. § 1028A.3 The district court held a sentencing hearing for each defendant at which co-defendant Aisha Garrison and Secret Service Agent Thomas Riley testified. Over objections, the district court adopted the presentence report’s recommendations for each defendant. Starting from a base offense level of six and a criminal history category of V for each defendant, the reports calculated that the defendants caused $488,500 in loss and [444]*444added a fourteen-level enhancement under U.S.S.G. § 2Bl.l(b)(l)(H). To reach this amount, the reports applied U.S.S.G. § 2B1.1 cmt. n. 3(F)(i) and multiplied the total number of stolen credit card numbers (977) by $500. The reports proceeded to add to each defendant’s sentence a four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B) because the crime had fifty or more victims; a two-level enhancement under U.S.S.G. § 2Bl.l(b)(9)(A) and (C) because the defendants relocated to another jurisdiction to evade law enforcement and because the offense otherwise involved sophisticated means; and a two-level enhancement under U.S.S.G. § 2Bl.l(b)(10)(A)(i) because the offense involved device-making equipment.4 Lyles’s report added an additional four levels under U.S.S.G. § 3Bl.l(a) for being the organizer of a criminal activity involving five or more participants.5 These calculations produced a Guidelines range of 140 to 175 months for Lyles and 100 to 125 months for Knight, with twenty-four months required to be consecutive under 18 U.S.C. § 1028A. After considering the sentencing factors under 18 U.S.C. ■§ 3553(a), the district court rejected the defendants’ requests for downward variances and sentenced Lyles to 164 months and Knight to 124 months.

Defendants timely appealed, and we exercise jurisdiction under 28 U.S.C. § 1291.

II. Guidelines Calculations

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Bluebook (online)
506 F. App'x 440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sylvester-knight-jr-ca6-2012.