USA v. Centry Corker, Jr.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10192
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CENTRY CORKER, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:20-cr-00031-AW-MAF-1
____________________
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2 Opinion of the Court 22-10192
Before N EWSOM , TJOFLAT, and ANDERSON, Circuit Judges.
PER CURIAM:
Centry Corker, Jr. appeals his sentence of 45 months’ impris-
onment for aiding and abetting bank fraud, possession of 15 or
more unauthorized access devices with intent to defraud, and aid-
ing and abetting aggravated identity theft. Corker argues that the
District Court plainly erred at sentencing in calculating the loss at-
tributable to him pursuant to the $500-per-access-device rule in Ap-
plication Note 3(F)(i) to U.S.S.G. § 2B1.1, and by applying Applica-
tion Note 3(A), which requires the district court to calculate loss as
the greater of actual or intended loss. He asserts that these provi-
sions are inconsistent with the plain meaning of the word “loss” in
the Guidelines’ text and invalid pursuant to the Supreme Court’s
decision in
Kisor v. Wilkie, 139 S. Ct. 2400 (2019). We affirm the
District Court’s decision.
I.
In December 2015, Corker obtained a $2,500 personal loan
check from the United States Automobile Association Federal Sav-
ings Bank (the “USAA FSB”) by calling the bank from a Maryland
phone number and posing as an individual named W.C. Corker
also called the United States Automobile Association Savings Bank
(the “USAA SB”) posing as W.C. and obtained a credit card with a
$20,000 limit in W.C.’s name using his name, date of birth, and So-
cial Security number. The loan check was sent to Corker’s
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22-10192 Opinion of the Court 3
residence via Federal Express on December 3, 2015, and the credit
card was sent to Corker’s residence via Federal Express on Decem-
ber 5, 2015. The loan was stopped before Corker could cash the
check, but Corker used the credit card to make purchases totaling
$2,778.01 at Walmart stores in Tallahassee and Pembroke Pines,
Florida.
Between September 30, 2015, and January 30, 2016, Corker
had engaged in a separate credit card fraud scheme. During this
time, Corker had obtained multiple blank credit cards. Using The
Onion Router software,1 Corker went to dark web marketplaces
such as AlphaBay and BriansClub to purchase credit card infor-
mation stolen from other individuals. Through his purchases, he
obtained 78 individuals’ credit card numbers, expiration dates, card
verification values, and personally identifiable information, and
Corker stored this information on his personal laptop. He then
used a magnetic stripe card reader and writer to encode the card
numbers he received and copy the individuals’ card information
onto the blank credit cards. He intended to use the credit cards to
make purchases not authorized by the original card owners, but he
did not get to use the credit cards.
1 The Onion Router (“TOR”) software allows users to access the dark web,
and it protects users’ privacy by encrypting users’ web traffic and clearing their
browser history automatically after each browsing session.
See Theodor
Porutiu,
What Is the TOR Browser? A Guide to the Dark Web Browser, VPN
Overview (June 27, 2022), https://vpnoverview.com/privacy/anonymous-
browsing/tor/.
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4 Opinion of the Court 22-10192
Corker was indicted by the United States District Court for
the Northern District of Florida on July 7, 2020. For Counts 1
through 6, Corker was charged with attempting to defraud USAA2
by using a false name to get a loan from USAA FSB and a credit
card from USAA SB, and by making purchases using the fraudu-
lently obtained credit card, in violation of 18 U.S.C. §§ 2 and
1344(2). Count 7 charged Corker with possession of 15 or more
unauthorized access devices, in violation of 18 U.S.C. §§ 1029(a)(3)
and (c)(1)(A)(i). The term “access devices” here refers to the 78
victims’ names, credit card numbers, card verification values, and
card expiration dates that were stored on Corker’s personal laptop.
Finally, for Counts 8 and 9, Corker was charged with unlawfully
using the identity of another person to commit bank fraud as set
out in Counts 1 and 2, in violation of 18 U.S.C. §§ 2 and 1028A(a)(1).
Pursuant to a plea agreement, Corker pled guilty to Counts 2, 7,
and 9 on October 12, 2021. The Government agreed to drop the
remaining charges against Corker as part of the plea agreement.
A probation officer prepared Corker’s presentencing report
(“PSR”) on December 1, 2021, and revised it on December 17, 2021.
The probation officer calculated USAA’s actual loss to be $5,278.01,
and the officer calculated a total intended loss value of $61,000—
$38,500 for the 78 victims (including W.C.) whose private credit
card information was on Corker’s computer and $22,500 for USAA.
2 Throughout the record, the Government and the District Court collectively
refer to USAA FSB and USAA SB as “USAA.”
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22-10192 Opinion of the Court 5
For the 78 individuals who had their credit card information stolen,
the probation officer calculated an intended loss amount of $500
per card, but the officer subtracted the $500 intended loss for
W.C.’s card because W.C. suffered an actual loss when Corker ob-
tained the credit card in W.C.’s name and made purchases totaling
$2,778.01. The loss value of $500 per card was calculated pursuant
to Application Note 3(F)(i) to U.S.S.G. § 2B1.1, which states that, in
a case involving unauthorized access devices, “loss includes any un-
authorized charges made with the . . . unauthorized access device
and shall be not less than $500 per access device.” United States
Sentencing Commission,
Guidelines Manual, § 2B1.1, comment.
(n.3(F)(i)) (Nov. 1, 1989). USAA’s intended loss value came from
the loan and credit card that Corker obtained fraudulently—$2,500
for the USAA FSB loan and $20,000 for the USAA SB credit card
obtained in W.C.’s name.
The probation officer calculated a base offense level of seven
pursuant to U.S.S.G. § 2B1.1(a)(1). The probation officer applied
the following adjustments for specific offense characteristics: (1) a
6-level increase pursuant to U.S.S.G. § 2B1.1(b)(1)(D) because the
amount of loss was more than $40,000 but less than $95,000; (2) a
2-level increase pursuant to U.S.S.G. § 2B1.1(b)(2)(A) because the
offense involved 10 or more victims; and (3) a 2-level increase pur-
suant to U.S.S.G. § 2B1.1(b)(11)(A)(i) because the offense involved
the possession or use of device-making equipment. The officer also
applied a 3-level reduction for acceptance of responsibility and
timely assistance to authorities pursuant to U.S.S.G. § 3E1.1(a) and
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6 Opinion of the Court 22-10192
(b), yielding a total offense level of 14. Based on Corker’s four crim-
inal history points, he had a criminal history category of III, result-
ing in a Guidelines sentencing range of 21 to 27 months’ imprison-
ment for Counts 2 and 7, to be followed by a mandatory consecu-
tive two-year prison sentence for Count 9.3
Corker’s sentencing hearing took place before the District
Court on January 3, 2022. The Court reviewed the guidelines sen-
tence range and asked Corker if he objected to the guidelines range
or anything else in the PSR. Corker replied that he did not object
to the guidelines sentence range or the PSR. After hearing from
the parties regarding the conditions of Corker’s supervised release
and the 18 U.S.C. § 3553(a) sentencing factors, the Court sentenced
Corker to 45 months’ imprisonment, $5,278.01 in restitution, and
five years of supervised release. Immediately after imposing the
sentence, the Court asked Corker if he had any objections to the
sentence or the manner in which it was to be imposed, and Corker
again replied that he did not have any objections.
3 18 U.S.C. § 1028A(a)(1) provides that anyone who, during the commission
of a felony violation contained in Chapter 47 of Title 18 of the U.S. Code,
“knowingly transfers, possesses, or uses, without lawful authority, a means of
identification of another person shall, in addition to the punishment provided
for such felony, be sentenced to a term of imprisonment of 2 years.” Corker
committed a felony violation contained in Chapter 47 of Title 18 of the U.S.
Code by possessing 78 unauthorized access devices.
See 18 U.S.C.
§§ 1029(a)(3), 1029(c)(1)(A)(i).
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22-10192 Opinion of the Court 7
II.
Corker now appeals his sentence before this Court. He ar-
gues that the District Court erred in calculating the loss amount
attributable to him pursuant to Application Note 3(F)(i) to U.S.S.G.
§ 2B1.1. According to Corker, Application Note 3(F)(i)’s require-
ment that courts assess a minimum loss of $500 per access device
is invalid because it conflicts with the plain meaning of the word
“loss” in the Guidelines’ text. U.S.S.G. § 2B1.1 states that for fraud
offenses, the offense level should be increased according to the pro-
vided table “if the loss exceeded $6,500.” Corker argues that the
commonly understood meaning of “loss” is “the amount of some-
thing lost,” so “loss” as used in the Sentencing Guidelines refers to
the dollar amount that the victim actually lost as a result of the of-
fense. Corker concedes that he is liable for the $5,278.01 that USAA
actually lost, but he contends that he cannot be liable for the
$61,000 in
intended losses because the Sentencing Guidelines only
call for sentences to be enhanced based on actual loss.
Corker also asserts that Application Note 3(F)(i) is invalid
under
Kisor v. Wilkie. The Supreme Court held in
Kisor that a
court should only defer to an agency’s own interpretation of a reg-
ulation if “a regulation is genuinely ambiguous . . . even after a
court has resorted to all the standard tools of interpretation.” 139
S. Ct. at 2414. Corker argues that
Kisor abrogates the rule that the
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8 Opinion of the Court 22-10192
Guidelines’ commentary4 should be afforded significant defer-
ence—a rule that this Court has followed in the past.
See United
States v. Lange, 862 F.3d 1290, 1294 (11th Cir. 2017). Application
Note 3(F)(i), Corker argues, is not a reasonable interpretation of a
“genuinely ambiguous” Guideline, as the $500-per-device assess-
ment is “wholly unrelated” to the victim’s actual loss and “is incon-
sistent with the unambiguous text of the [G]uideline.”
We review a sentencing challenge raised for the first time on
appeal for plain error.
United States v. Clark, 274 F.3d 1325, 1326
(11th Cir. 2001). Plain error lies only where “(1) there is an error in
the district court’s determination; (2) the error is plain or obvious;
(3) the error affects the defendant’s substantial rights in that it was
prejudicial and not harmless; and (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
Id.
If an issue is not resolved directly by the language of a statute or
rule, Eleventh Circuit precedent, or Supreme Court precedent,
there can be no plain error.
United States v. Lejarde-
Rada, 319 F.3d
1288, 1291 (11th Cir. 2003). “Such error must be so clearly estab-
lished and obvious that it should not have been permitted by the
trial court even absent the defendant’s timely assistance in
4 Although
Kisor does not explicitly extend its holding to the U.S. Sentencing
Guidelines, the Supreme Court has stated that “the guidelines are the equiva-
lent of legislative rules adopted by federal agencies.”
Stinson v. United States,
508 U.S. 36, 45, 113 S. Ct. 1913, 1919 (1993).
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22-10192 Opinion of the Court 9
detecting it.”
United States v. Hesser, 800 F.3d 1310, 1325 (11th
Cir. 2015) (quotations omitted).
Section 2B1.1 of the U.S. Sentencing Guidelines contains the
offense level calculation for theft and fraud offenses. U.S.S.G.
§ 2B1.1. Section 2B1.1(b)(1)(D) provides for an offense level in-
crease of 6 levels if the loss caused by the relevant offense exceeds
$40,000 but is less than $95,000.
Id. § 2B1.1(b)(1)(D). This section
itself does not provide a definition of “loss.”
Id. Application
Note 3(F)(i) to § 2B1.1 provides a “Special Rule” for cases involving
counterfeit credit cards or access devices. Pursuant to the “Special
Rule,” “loss includes any unauthorized charges made with the
counterfeit access device or unauthorized access device and shall
be not less than $500 per access device.”
Id. § 2B1.1, cmt. n.3(F)(i).
Application Note 3(A) to § 2B1.1 directs courts to calculate loss as
“the greater of actual loss or intended loss.”
Id., cmt. n.3(A).
In
Stinson v. United States, the Supreme Court held that the
commentary to the Guidelines is authoritative unless it: (1) violates
the Constitution; (2) violates a federal statute; or (3) is inconsistent
with, or a plainly erroneous reading of, a given Guideline. 508 U.S.
36, 38, 113 S. Ct. 1913, 1915 (1993). Applying this test, the Court
held that the definition of “crime of violence” in the commentary
to U.S.S.G. §§ 4B1.1 and 4B1.2 was authoritative because it did not
violate the Constitution or a federal statute and was consistent with
the Guidelines.
Id. at 47, 113 S. Ct. at 1920.
In
Kisor, the Supreme Court clarified when courts should
defer to agency interpretations of ambiguous regulations. 139 S.
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10 Opinion of the Court 22-10192
Ct. at 2408. The Court held that such deference is warranted only
when a court has determined, “based on indicia like text, structure,
history, and purpose, whether the regulation really has more than
one reasonable meaning,” and where the interpretation “is of the
sort that Congress would want to receive deference.”
Id. at 2424.
Although the United States Sentencing Commission is not an exec-
utive agency, Congress permissibly delegates authority to the Sen-
tencing Commission to issue Guidelines in the same way it dele-
gates authority to executive agencies.
See Mistretta v. United
States, 488 U.S. 361, 371, 374–80, 109 S. Ct. 647, 654, 656–59 (1989).
We have reversed district courts’ applications of “special
rules” from Application Notes when they contradict the Guide-
lines. For example, in
United States v. Tejas, 868 F.3d 1242, 1245
(11th Cir. 2017), a case involving a defendant who stole undelivered
mail from a postal delivery vehicle, the district court applied a “spe-
cial rule” set out in Application Note 4(C)(i) to § 2B1.1 for deter-
mining the number of victims in the offense. The rule provided
that, when a mail-theft offense “involves a United States Postal Ser-
vice . . . delivery vehicle . . . [the offense] shall be considered to have
involved at least 10 victims.”
Tejas, 868 F.3d at 1245 (quoting
U.S.S.G. § 2B1.1, comment. (n.4(C)(ii))) (internal quotation marks
omitted). Application of the rule triggered a two-level enhance-
ment under § 2B1.1(b)(2)(A)(i) for an offense involving ten or more
victims.
Id. Because the evidence clearly demonstrated that the
offense involved fewer than ten victims, however, we held that the
special rule’s mandate of ten victims was inconsistent with the
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22-10192 Opinion of the Court 11
plain text of the Guideline, which was based solely on the number
of victims.
Id. We recognized that the special rule might be rea-
sonable in other instances where there may be doubt about the
number of victims involved in the offense, but in the instant case it
produced “erroneous and contrary results when the number of vic-
tims is readily determined, as it is here.”
Id. at 1245–46.
This Court has not previously addressed whether Applica-
tion Note 3(F)(i) contradicts the text of § 2B1.1 itself. Nevertheless,
we have upheld district courts’ applications of § 2B1.1(b)(1) and Ap-
plication Note 3(F)(i) in making fraud-loss calculations without
questioning whether the $500-per-device “Special Rule” contra-
dicted the text of the Guidelines.
See, e.g.,
United States v. Maitre,
898 F.3d 1151, 1159–61 (11th Cir. 2018);
United States v. Wright,
862 F.3d 1265, 1274–75 (11th Cir. 2017). We have also explicitly
rejected the argument that Application Note 3(A) to § 2B1.1, in-
structing courts to calculate “the greater of actual loss or intended
loss,” contradicts the plain meaning of the Guidelines’ text.
See
United States v. Moss, 34 F.4th 1176, 1190 (11th Cir. 2022) (uphold-
ing the application of Application Note 3(A) in a case involving
Medicare and Medicaid fraud).
III.
Corker has not shown that the District Court plainly erred
in relying on Application Note 3(F)(i) to calculate the offense’s loss
amount under § 2B1.1. Regarding Application Note 3(F)(i)’s $500-
per-device loss measurement, Corker simply asserts, based on two
standard dictionary definitions, that the term “loss” plainly refers
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12 Opinion of the Court 22-10192
to the monetary value of “something lost.” However, Corker iden-
tifies no binding Supreme Court or Eleventh Circuit cases that
clearly establish that Application Note 3(F)(i)’s $500-per-device loss
measurement is inconsistent with the text of § 2B1.1(b)(1), which
provides no definition of the term “loss.” To the contrary, this
Court has repeatedly upheld the application of Application
Note 3(F)(i)’s $500-per-device measurement without questioning
whether it was contrary to the plain text of § 2B1.1.
See Maitre,
898 F.3d at 1159–61;
Wright, 862 F.3d at 1274.5
Corker has also failed to show that the District Court com-
mitted plain error by relying on Application Note 3(A) to § 2B1.1.
This Court has specifically rejected Corker’s secondary argument
that Application Note 3(A), which instructs courts to calculate loss
as “the greater of actual loss or intended loss,” contradicts the text
of § 2B1.1 itself.
See Moss, 34 F.4th at 1190. Accordingly, this
Court’s decision in
Moss forecloses Corker’s argument that the
District Court plainly erred in applying Application Note 3(A) to
§ 2B1.1.
See Clark, 274 F.3d at 1326.
The decisions from the Supreme Court that Corker cites ad-
dressed general issues of when courts should treat the commentary
to the Guidelines as authoritative,
Stinson, 508 U.S. at 38–39, 47,
5 In his brief before this Court, Corker cited a Sixth Circuit case to support the
proposition that the $500-per-device measurement is not part of “loss” as used
in the Guideline.
See United States v. Ricciardi, 989 F.3d 476 (6th Cir. 2021).
However, the Sixth Circuit case that Corker identifies is not binding precedent
that could establish plain error in this Circuit.
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22-10192 Opinion of the Court 13
113 S. Ct. at 1915–16, 1920, and when agency interpretations of
rules are authoritative,
Kisor, 139 S. Ct. at 2408. This Court re-
cently held that
Kisor applies to the Sentencing Guidelines, con-
cluding that the Court may not defer to the commentary “if uncer-
tainty does not exist in the Guideline.”
United States v. Dupree,
No. 19-13776, slip op. at 12 (11th Cir. Jan. 18, 2023). However, the
question of whether
Stinson and
Kisor govern how much defer-
ence to give to Guidelines commentary is a separate issue from
whether binding precedent holds that Application Note 3(A) and
Application Note 3(F)(i) are inconsistent with the Guidelines’
text—which Corker must show to prove plain error.
Lejarde-
Rada,
319 F.3d at 1291. Corker’s assertion that our holding in
Tejas sup-
ports a finding of plain error in this case also fails because
Tejas
involved a different provision from the ones at issue here.
Tejas,
868 F.3d at 1245 (quoting U.S.S.G. § 2B1.1(b)(2)(A)(i)).
IV.
Here, the District Court did not plainly err in applying the
$500-per-device rule in Application Note 3(F)(i) because no binding
precedent clearly establishes that Application Note 3(F)(i) is incon-
sistent with the Guidelines’ text. Further, Corker’s argument that
the District Court plainly erred in applying Application Note 3(A)
is foreclosed by this Court’s binding precedent in
Moss. Finally,
the District Court did not plainly err in light of
Kisor, as
Kisor does
not resolve the specific question presented in this case—whether
the District Court’s loss calculations directly contravened binding
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14 Opinion of the Court 22-10192
precedent, as required under the plain-error test. The District
Court’s decision is accordingly
AFFIRMED.
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