Submitted: April 3, 2017
from United States District Court for the Western District of
Missouri - Kansas City
WOLLMAN, LOKEN, and RILEY, Circuit Judges.
Bernard Weaver pleaded guilty to conspiracy to commit bank
fraud in violation of 18 U.S.C. §§ 1344 and 1349.
The district court overruled Weaver's objection to a
two-level enhancement under U.S.S.G. §
2B1.1(b)(11)(C)(i), resulting 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.
The § 2B1.1(b)(11)(C)(i) "Means of
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).
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 of identification
. . . making it difficult for the individual victim to detect
that the victim's identity has been
'stolen.'" § 2B1.1, comment.
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). "'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.
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 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
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.
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.
II. The Sentence Is Not Substantively
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,