A district court's loss determination is not clearly erroneous if it "is plausible in light of the record as a whole." United States v. Lyons , 556 F.3d 703, 707 (8th Cir. 2009) (citation omitted). The Guidelines prescribe a six-level enhancement for certain offenses if the loss amount is between $40,000–$95,000.
Other circuits have followed the First Circuit's reasoning. See United States v. Charles , 757 F.3d 1222, 1226 (11th Cir. 2014) ; United States v. Doss , 741 F.3d 763, 768 (7th Cir. 2013) ; United States v. Lyons , 556 F.3d 703, 708 (8th Cir. 2009) ("Given that the plain meaning of trafficking involves a transfer, the enhancement in § 2B1.1(b)(10)(B)(i) for trafficking of an unauthorized access device is one such specific offense characteristic that cannot be applied." (emphasis added)).
Other circuits have followed the First Circuit's reasoning. See United States v. Charles, 757 F.3d 1222, 1226 (11th Cir. 2014); United States v. Doss, 741 F.3d 763, 768 (7th Cir. 2013); United States v. Lyons, 556 F.3d 703, 708 (8th Cir. 2009) ("Given that the plain meaning of trafficking involves a transfer, the enhancement in § 2B1.1(b)(10)(B)(i) for trafficking of an unauthorized access device is one such specific offense characteristic that cannot be applied." (emphasis added)).
A two-level enhancement under § 2B1.1(b)(10) may still apply to a defendant convicted under § 1028A. United States v. Jones, 551 F.3d 19, 25 (1st Cir. 2008); see also United States v. Lyons, 556 F.3d 703, 708-09 (8th Cir. 2009) (leaving open whether the § 2B1.1(b)(10) enhancement applies to a defendant who produced an unauthorized access device and who also was convicted of aggravated identity theft). For example, the production of a counterfeit access device or authentication feature is not conduct encompassed by the prohibition on double counting in the commentary to § 2B1.6. See U.S.S.G. § 2B1.1(b)(10)(B); Jones, 551 F.3d at 25; see also Lyons, 556 F.3d at 708-09.
In so holding, we need not address other enhancements found in § 2B1.1(b)(11), such as enhancements for trafficking access devices. Cf. Jones , 792 F.3d at 835 (7th Cir. 2015) (reaching that question); United States v. Lyons , 556 F.3d 703, 708 (8th Cir. 2009) (same). The District Court did not err.
McGee appeals the sentence, arguing the district court erred in determining the base offense level, in imposing three enhancements, and in granting a continuance of the sentencing hearing. Reviewing the district court's factual findings for clear error, and its interpretation and application of the guidelines de novo , we affirm. United States v. Lyons, 556 F.3d 703, 706–07 (8th Cir. 2009) (standard of review). We begin with the enhancement issues because they involve facts underlying McGee's first count of conviction.
Given that Charles was already subject to a 24 months' consecutive sentence for aggravated identity theft under § 1028A(a)(1), Application Note 2 to guideline § 2B1.6 precluded the two-level increase in the Count One offense level for transferring the debit card to Bien–Aime. SeeCruz, 713 F.3d at 607; see also United States v. Doss, 741 F.3d 763, 766–67 (7th Cir.2013) (holding that Application Note 2 to § 2B1.6 precluded the application of the two-level increase under § 2B1.1(b)(11)(B) for trafficking an unauthorized access device when the defendant was convicted and sentenced under 18 U.S.C. § 1028A); United States v. Lyons, 556 F.3d 703, 708 (8th Cir.2009) (“Given that the plain meaning of trafficking involves a transfer, the enhancement in § 2B1.1(b)([11])(B)(i) for trafficking of an unauthorized access device is one such specific offense characteristic that cannot be applied” under Application Note 2 to § 2B1.6); United States v. Jones, 551 F.3d 19, 25 (1st Cir.2008) (providing that “if a defendant receives the two-year consecutive sentence on the identity theft count, her sentence for any underlying offense is not eligible for a 2–level increase for ‘transfer, possession, or use’ of false identification”).
Section 1029(e)(5) of Title 18 provides that “ ‘traffic’ means transfer, or otherwise dispose of, to another, or obtain control of with intent to transfer or dispose of.” (emphasis added). Additionally, the two courts of appeals that have addressed the issue also have concluded that trafficking necessarily involves a transfer for purposes of § 2B1.6. See United States v. Lyons, 556 F.3d 703, 708 (8th Cir.2009) (holding that, “[g]iven that the plain meaning of trafficking involves a transfer, the enhancement in § 2B1.1(b)(10)(B)(i) for trafficking of an unauthorized access device is one such specific offense characteristic that cannot be applied” under Application Note 2 to § 2B1.6); United States v. Jones, 551 F.3d 19, 25 (1st Cir.2008) (“Considering the plain meaning of the words, we conclude that Jones' trafficking of a means of identification involved a transfer (though the reverse is not necessarily true).”).
the court understood the Guidelines to recommend a 46–57 month custody range, but also in the second hearing, in which the court believed the Guidelines recommended a 63–78 month custody range. Compare United States v. Goodyke, 639 F.3d 869, 875 (8th Cir.2011) (“That the district court wanted to get to a seventy-five-month sentence is fairly obvious from the transcript.”), and United States v. Sanchez–Martinez, 633 F.3d 658, 660–61 (8th Cir.2011) (concluding any error was harmless because the record clearly indicated the district court would have imposed the same sentence, regardless of the error), with United States v. Williams, 627 F.3d 324, 329 (8th Cir.2010) (“[T]he procedural error was not harmless because the district court did not articulate any alternative sentence, and there is no clear indication on the record that the district court would have imposed the same sentence if the defendant's legal argument had prevailed[.]”) (internal quotation marks and citation omitted), and United States v. Lyons, 556 F.3d 703, 709 (8th Cir.2009) (“[T]here is no clear indication in the record that the district court would have imposed the same sentence if it had used the correct advisory range as the starting point for its analysis.”). For his second procedural challenge, while “[r]ecognizing that U.S.S.G. § 3D1.2 specifically excludes all offenses in Chapter 2A [i.e., the assault offenses] from being grouped together,” Woods nonetheless asserts the district court's failure to group the assault charges pursuant to U.S.S.G. § 3D1.2 was error.
United States v. Barnes, 278 F.3d 644, 646 (6th Cir. 2002). Wiley contends that he was over-penalized either because courts are not to "apply any specific offense characteristic for the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense" when also imposing a sentence for aggravated identity theft, U.S.S.G. § 2B1.6, cmt. n. 2 (def. br., p. 36) (quoting United States v. Lyons, 556 F.3d 703 (8th Cir. 2009)), or because the production and trafficking in this case were done solely by Gerald Smith. Neither of these arguments is convincing. The problem with Wiley's first argument is that, unlike Lyons, this is not a "trafficking" case, but a "production" case.