First, for purposes of the fraud loss Guideline and identity-theft statute, the Court held that debit/credit cards and social security numbers qualified as an "access device." The Court, however, held that "personal identifying information" -- without any evidence about what that information contained -- was not an access device. Because the district court's loss calculation turned on that issue, and there were no factual findings regarding the PII, the Court remanded for further proceedings.
Second, the Court affirmed the denial of a two-level minor-role reduction under De Varon, finding that the defendant possessed and transmitted lots of PII. Although she claimed that she feared for her safety, her refusal to identify any other members of the conspiracy meant that she failed to meet her burden to establish that she had a lesser role.
Third, the Court affirmed the denial of a reduction for acceptance of responsibility because, although the defendant had cooperated and pled guilty, she was convicted for misdemeanor marijuana possession during pretrial release, finding that evidence of continued, but unrelated, criminal conduct after an arrest supports the denial.
Fourth, the Court held that a diversionary disposition resulting from a nolo plea qualified for criminal history points, even though adjudication was withheld. The Court also held that a traffic citation did not constitute an intervening "arrest" for purposes of 4A1.2(c), a question that had divided two circuits.
