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."
