Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, April 17, 2019

Corbett: Plain Error in Applying Ten-or-More Victims Enhancement Because Means of Identification Were Merely Sold, not Used

In United States v. Corbett, No. 18-13203 (Apr. 17, 2019) (William Pryor, Newsom, Vratil), the Court reviewed for plain error two unpreserved guideline enhancements.

Despite applying that standard of review, the Court found plain error as to the application of the ten-or-more victims enhancement in 2B1.1(b)(2)(A)(i).  Relying on its earlier precedent in Hall, the Court agreed with the defendant that the court had erred by treating as victims individuals whose means of identification had not been "used."  The Court reiterated that merely selling or transferring identifying information was not a "use" of such information under the Guideline.  The Court found that the error satisfied the remaining plain-error criteria under Molina-Martinez and Rosales-Mireles, even though the court varied downward from the (incorrect) range, and so it vacated the sentence and remanded.

The Court, however, found no plain error with regard to a ten-level loss enhancement under 2B1.1.  The Court "remind[ed] the defense bar of the importance of specific factual and legal argumentation at eveyr stage of sentencing proceedings.  A defendant should 'specifically and clearly object' to any facts in a presentece report that she does not intent to admit and that she wishes to require the government to prove by a preponderance of the evidence."