CA1: no double-counting in identity-theft sentencing

US v. Sharapka, No. 06-2715.  This is an appeal sentence for 121 month sentence for identity theft.  The First says that the enhancement for “more than 10 but fewer than 50 ‘victims’” was okay, despite the fact that the defendant had argued that the issuing banks were the “victims.”  The government argued that the numerous vendors were the really losers.  The First concludes that “We believe that the district court properly relied on both the testimony regarding the conversation with American Express and the Sentencing Guidelines explanatory notes, which defines “victims” for purposes of § 2B1.1(b)(2)(A) as including ‘individuals, corporations, companies . . .’ See U.S.S.G. § 2B1.1(b)(2)(A), cmt. n.1.”  Strangely, this information was based on a proffer from the government.  The First rejects the idea the since government took an inconsistent position at a restitution hearing (because the vendors didn’t submit statements), it should not be entitled to rely upon that theory.

The First also holds that an enhancement under 2B1.1(b)(10)(A)(I) for “possession of ‘device-making equipment’” wasn’t a double counting with § 2B1.6 (mandatory consecutive sentence for identity theft).  The First concludes that “We believe that the plain language supports the government’s argument. § 2B1.1(b)(10) lists different offense characteristics, separated by the conjunction ‘or,’ whose presence may justify a two-level enhancement.”  But notes that “Had the court imposed the enhancement under § 2B1.1(b)(10)(C)(i) (“unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification”), then § 2B1.6 would preclude application of a two-level enhancement.”