United States of America v. Michelle Williams (03-5107); Tanisha Jones Ward (03-5189); Robert Kelly, Iii (03-5192)

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0453P (6th Cir.)
File Name: 03a0453p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHELLE WILLIAMS
(03-5107); TANISHA JONES
WARD (03-5189); ROBERT
KELLY, III (03-5192),
Defendants-Appellants.
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Nos. 03-5107/
5189/5192
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 02-20151—Julia S. Gibbons, District Judge.
Argued and Submitted: October 21, 2003
Decided and Filed: December 23, 2003
Before: KEITH, DAUGHTREY, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ARGUED: Bruce I. Griffey, OFFICE OF BRUCE IRWIN
GRIFFEY, Memphis, Tennessee, for Appellants. Tracy L.
2 United States v.
Williams, et al.
Nos. 03-5107/5189/5192
Berry, ASSISTANT UNITED STATES ATTORNEY,
Memphis, Tennessee, for Appellee. ON BRIEF: Bruce I.
Griffey, OFFICE OF BRUCE IRWIN GRIFFEY, Memphis,
Tennessee, Mary C. Jermann, OFFICE OF THE FEDERAL
PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF
TENNESSEE, Memphis, Tennessee, Jerry Stokes, Memphis,
Tennessee, for Appellants. Tracy L. Berry, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for
Appellee.
_________________
OPINION
_________________
DAMON J. KEITH, Circuit Judge. Defendants-Appellants
Michelle Williams (“Williams”) and Robert Kelly, III
(“Kelly”) appeal their sentences following the entry of guilty
pleas to identity theft, 18 U.S.C. § 1028(a)(7). Defendant-
Appellant Tanisha Jones Ward (“Ward”) appeals her sentence
following the entry of a guilty plea to identity theft, 18 U.S.C.
§ 1028(a)(7), and making a false statement, 18 U.S.C.
§ 1001(a)(2). Williams, Kelly, and Ward were involved in a
scheme that involved the use of false identifying information
to obtain home loans. The district court found that the
enhancement in § 2B1.1(b)(9)(C)(i) of the 2002 Sentencing
Guidelines for “the unauthorized transfer or use of a means of
identification unlawfully to produce or obtain any other
means of identification” applied to Williams’s and Kelly’s
conduct. UNITED STATES SENTENCING GUIDELINES MANUAL
§ 2B1.1(b)(9)(C)(i) (2002). Due to ex post facto concerns, the
district court sentenced Kelly and Ward using the 1998
Sentencing Guidelines (in effect at the time of the crime)
rather than the 2002 Sentencing Guidelines (in effect at the
time of sentencing). Williams appeals the application of the
§ 2B1.1(b)(9)(C)(i) enhancement. Kelly appeals the use of
the 1998 Sentencing Guidelines, contending that the 2002
Sentencing Guidelines should be applied without the

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§ 2B1.1(b)(9)(C)(i) enhancement. Ward appeals the district
court’s refusal to depart downward due to her family
circumstances, aberrant behavior, and her relative culpability
compared to the other defendants. For the reasons set forth
below, we AFFIRM the sentences of Williams, Kelly, and
Ward.
I. FACTUAL BACKGROUND
From on or about September 25, 1998, and continuing to on
or about June 21, 2000, Terrell Green, Marcus Martin, and
Thomas Anthony Taylor provided false identifying
information to persons who wanted to buy a house under a
loan program administered by the Federal Housing
Administration (“FHA”). The data included a social security
number, employment information, and salary information.
Purchasers such as Kelly and Williams signed loan
documents containing the false information and submitted
them to Community Mortgage Corporation (“CMC”) for the
federally guaranteed loans and the City of Memphis,
Tennessee Division of Housing and Community Development
for down payment assistance loans. On or about May 16,
2000, Williams received loans from CMC and the City of
Memphis valued in excess of $59,000. On or about May 19,
2000, Kelly received over $90,000 in loans. Ward acted as
the realtor in each of the loans. In addition, on or about June
21, 2000, Ward used a false social security number, which she
received from Terrell Green, in order to apply for a FHA loan.
Williams entered a plea of guilty to violating 18 U.S.C.
§ 1028(a)(7), through her use of Larmont F. White’s social
security number, in order to commit the federal felony
violations of social security fraud and making a false
statement within the jurisdiction of an agency of the United
States. On December 2, 2002, Williams filed objections to the
presentence report. At the sentencing hearing, Williams
argued that the two-point enhancement pursuant to
§ 2B1.1(b)(9)(C)(i) of the 2002 Sentencing Guidelines did not
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apply to her conduct. The government supported the
imposition of the enhancement because of Williams’s
purchase and use of someone else’s social security number in
order to obtain two separate loans. According to the
government, the bank loan number is equivalent to false
identification. Williams argued that the enhancement did not
apply because she engaged in a single act - the signing of the
loan documents containing the false information. Williams
maintained that she purchased a loan package from Mr. Green
and that she did not use the social security number in those
documents to obtain additional false identification.
After hearing the arguments of the parties, the district court
rejected Williams’s position. According to the district court,
§ 2B1.1(b)(9) applied directly to the type of situation
Williams presented. The district court stated:
To elaborate further, with respect to the application of the
guideline we’ve just been talking about, the court refers
to the guideline itself. The commentary application note
nine, which refers to the definition of means of
identification, which is a very broad one, and
encompasses a bank loan which we might not ordinarily
think of as being included by that language, would note
also the Application Notes 7(C)(i) and 7(C)(ii) and then
the commentary background which discusses subsection
(B)(9)(C) in some detail. It appears to me that that
enhancement does apply.
J.A. at 159-160.
Kelly entered a guilty plea to the use of the social security
number of Samuel Robert DeMoya. In objecting to the
presentence investigation report, Kelly argued that the two-
point enhancement for more than minimal planning was not
appropriate. On December 6, 2002, Kelly supplemented his
objections contending that the probation office erred in using
the 1998 Sentencing Guidelines. Kelly contended that the

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2002 Sentencing Guidelines should be used, but that the use
of the 2002 Sentencing Guidelines should exclude the
enhancement pursuant to § 2B1.1(b)(9)(C)(i).
At the sentencing hearing, Kelly conceded that the use of
another’s social security number created a potential for harm
to that individual. Nonetheless, Kelly argued that the
§ 2B1.1(b)(9)(C)(i) enhancement applied only if the loan was
in the name of the individual whose social security number
was stolen. Kelly stressed the fact that he was trying to get a
home loan for himself, not run a scam and split with the
money. In the alternative, Kelly argued that, under the 1998
Sentencing Guidelines, the enhancement for more than
minimal planning was not appropriate because the facts
presented a simple case. The government supported the use
of the 1998 Sentencing Guidelines due to ex post facto
concerns. Specifically, the government contended that the
use of the 2002 Sentencing Guidelines would require the
enhancement proscribed in § 2B1.1(b)(9)(C)(i) as a result of
the commentary background to § 2B1.1 and application notes
7(C)(i), 7(C)(ii), and 9 for that guideline section. The
§ 2B1.1(b)(9)(C)(i) enhancement would have put Kelly in a
higher guideline range than would be applicable under the
1998 Sentencing Guidelines, even with the enhancement for
more than minimal planning.
In finding that the 1998 Sentencing Guidelines applied, the
district court rejected Kelly’s attempt to prevent the
application of § 2B1.1(b)(9)(C)(i) on the basis that Kelly used
his own name rather than the name of the individual whose
social security number he appropriated. According to the
district court, the commentary application notes and the
commentary background made clear that the enhancement
would apply under the facts of the case at bar. The district
court explained that even if the name was not used, there
would still be harm to the credit of the person whose social
security number was used. The district court found that the
minimum offense level of 12 would apply in Williams’s case.
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On or about July 3, 2002, Ward entered a plea admitting to
the use of the social security number of Allison Campbell and
to making a false statement to a department of the United
States. Unlike Williams and Kelly, Ward urged the district
court to depart downward from the applicable guideline range
by contending that her family circumstances were
extraordinary, her criminal conduct was aberrant behavior,
and she was less culpable than some of the other co-
defendants. The government responded by asking the district
court to recognize that the four-level enhancement received
by the organizer of the activity provided adequate
consideration for the difference between their roles in the
criminal conduct. The government also noted that the
conduct occurred over a two-year period and that Ward’s lack
of criminal history was already taken into account in
determining the guideline range.
The district court found that the facts of Ward’s case did
not support a downward departure. In reaching its decision,
the district court found that: Ward’s family responsibilities
were not so extraordinary as to suggest the need for a
downward departure; the importance of payment of restitution
did not override the need to serve a term of imprisonment;
Ward was more culpable than the individual defendants who
applied for loans themselves due to her integral role in the
transactions; and the conduct was too repeated and extensive
in terms of the period of time in order to constitute aberrant
behavior. Further, the district court found that the
aggregation of circumstances and factors was not sufficient to
take the case “out of the heartland” and thereby justify a
downward departure.
II. DISCUSSION
In reviewing a district court's application of the Sentencing
Guidelines, we "accept the findings of fact of the district court
unless they are clearly erroneous and . . . give due deference
to the district court’s application of the guidelines to the

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facts." 18 U.S.C. § 3742(e). In light of Buford v. United
States, 532 U.S. 59, 63-66 (2001), this court has held that our
standard of review of a district court's application of
provisions of the Sentencing Guidelines to the facts should be
treated deferentially and should not be disturbed unless
clearly erroneous. United States v. Jackson-Randolph, 282
F.3d 369, 389-90 (6th Cir.2002) (holding that the Supreme
Court's reasoning in Buford leads to the use of a deferential
standard of review in the application of the Sentencing
Guidelines under circumstances involving fact-bound
determinations).
A. Section 2B1.1(b)(9)(C)(i) enhancement
On October 30, 1998, Congress enacted the Identity Theft
and Assumption Deterrence Act of 1998 (“ITADA”), Pub. L.
No. 105-318. The ITADA amended the fraud chapter of title
18 of the United States Code to create a new crime
prohibiting the unlawful use of personal identifying
information, including, but not limited to, names, social
security numbers, and credit card numbers. Identity fraud
involves the misappropriation of another person’s personal
identifying information. Criminals use this information to
establish credit in their name, run up debts on another
person’s account, or take over existing financial accounts.
The ITADA directed the Sentencing Commission to “review
and amend the Federal sentencing guidelines and the policy
statements of the Commission, as appropriate, to provide an
appropriate penalty for each offense under section 1028 of
title 18, United States Code, as amended by this Act.”
Identity Theft and Assumption Deterrence Act of 1998, Pub.
L. No. 105-318 § 4(a), 112 Stat. 3007 (codified in 28 U.S.C.
§ 994 note).
Subsection 2B1.1(b)(9)(C) of the Sentencing Guidelines
was implemented pursuant to Section 4 of the ITADA. It
focuses on an aggravated from of identity theft known as
“affirmative identity theft” or “breeding,” in which a
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defendant uses another individual’s name, social security
number, or some other form of identification (the “means of
identification”) to “breed” (i.e., produce or obtain) new or
additional forms of identification. UNITED STATES
SENTENCING GUIDELINES MANUA L § 2B1.1, cmt. background
(2002). Section 2B.1.1(b)(9)(C)(i) of the Sentencing
Guidelines authorizes a two-level increase in a defendant’s
base offense level in cases in which the defendant has
unlawfully used any means of identification without
authorization to produce or obtain any other means of
identification. UNITED STATES SENTENCING GUIDELINES
MANUAL § 2B1.1(b)(9)(C)(i) (2002). If after the two-level
increase, the offense level is less than level 12, then the
offense level is to be increased to level 12. Id. The minimum
offense level of 12 accounts for the seriousness of the offense
as well as the difficulty in detecting the crime prior to certain
harms occurring, such as a damaged credit rating or an
inability to obtain a loan. UNITED STATES SENTENCIN G
GUIDELINES MANUA L § 2B1.1, cmt. background (2002). The
minimum offense level also accounts for the non-monetary
harm associated with these types of offenses, such as harm to
the individual’s reputation or credit rating, inconvenience, and
other difficulties resulting from the offense. Id.
The sentencing court found that the § 2B1.1(b)(9)(C)(i)
enhancement applied because Williams and Kelly used a
means of identification, i.e., a social security number of
another, to obtain another means of identification, i.e., a bank
loan number. Appellants argue that the enhancement was
inapplicable to their conduct. Specifically, Williams argues
that the bank loan number is not the equivalent of a false
identification, and that she purchased the entire loan package,
not a social security number. Thus, according to Williams,
the social security number in those documents was not used
to obtain additional false identification. Kelly argues that the
enhancement does not apply to his conduct because he
obtained the bank loan in his own name. Each of these
arguments will be addressed in turn.

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“‘Means of identification’ has the meaning given that term
in 18 U.S.C. § 1028(d)(4), except that such means of
identification shall be of an actual (i.e., not fictitious
individual), other than the defendant or a person for whose
conduct the defendant is accountable under § 1B1.3 (Relevant
Conduct).” UNITED STATES SENTENCING GUIDELINES
MANUAL § 2B1.1, cmt. n. 7(A) (2002). Under 18 U.S.C.
§ 1028(d)(4), “the term ‘means of identification’ means any
name or number that may be used, alone or in conjunction
with any other information, to identify a specific individual.”
18 U.S.C. 1028(d)(3) (emphasis added). “Means of
identification” includes, inter alia, a name, social security
number, unique electronic identification number, or
telecommunication identifying information or access device
as defined in 18 U.S.C. § 1029(e). 18 U.S.C.
§ 1028(d)(3)(A)-(D). “[T]he term ‘access device’ means any
. . . account number . . . or other means of account access that
can be used, alone or in conjunction with another access
device, to obtain money, goods, services, or any other thing
of value, or that can be used to initiate a transfer of funds . . .”
18 U.S.C. § 1029(e)(1).
In providing guidance for the applicability of § 2B1.1(b)(9),
the Sentencing Commission set forth examples of conduct to
which the subsection would apply. The first example, which
is most applicable to this situation, provides for the
imposition of the enhancement when “[a] defendant obtains
an individual’s name and social security number from a
source . . . and obtains a bank loan in that individual’s name.
In this example, the account number of the bank loan is the
other means of identification that has been obtained
unlawfully.” UNITED STATES SENTENCING GUIDELINES
MANUAL § 2B1.1, cmt. n.7(C)(ii) (2002). In the second
example, a defendant obtains an individual’s personal
information, such as a name and address, and “applies for,
obtains, and subsequently uses a credit card in that
individual’s name. In this example, the credit card is the
other means of identification that has been obtained
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unlawfully.” UNITED STATES SENTENCING GUIDELINES
MANUA L § 2B1.1, cmt. n. 7(C)(ii)(II) (2002).
The Sentencing Guidelines also set forth examples of
conduct to which subsection (b)(9)(C)(i) does not apply. The
first example involves a defendant’s use of a credit card from
a stolen wallet “only to make a purchase.” UNITED STATES
SENTENCING GUIDELINES MANUAL § 2B1.1, cmt. n.
7(C)(iii)(I). The Sentencing Guidelines make clear that in
that case, the defendant “has not used the stolen credit card to
obtain another means of identification.” Id. The second
example applies to a defendant who “forges another
individual’s signature to cash a stolen check. Forging another
individual’s signature is not producing another means of
identification.” UNITED STATES SENTENCING GUIDELINES
MANUA L § 2B1.1, cmt. n. 7(C)(iii)(II).
In this case, Williams and Kelly each used the social
security number of someone else to obtain home loans in their
own names. Kelly argues that the bank loan number is not
another “means of identification.” As a bank loan number is
an account number that can be used to obtain money,
however, it is a “means of identification” as that term is
defined in 18 U.S.C. § 1028. Further, the first example in the
commentary specifically provides that “the account number
of the bank loan is the other means of identification that has
been obtained unlawfully.” UNITED STATES SENTENCING
GUIDELINES MANUA L § 2B1.1(b)(9)(C)(i), cmt. n. 7(C)(ii)(I).
Accordingly, Kelly’s argument that a bank loan number is not
a “means of identification” lacks merit.
Williams and Kelly both argue that their situation is
different from the one in the example about the bank loan
because they obtained the loans in their own names and,
therefore, did not use the social security number and name of
someone else. Thus, according to Williams and Kelly, their
situation is more analogous to making a purchase with a
stolen credit card. While the defendant in the example used

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two means of identification in order to obtain the bank loan,
the definition of “means of identification” provided in 18
U.S.C. § 1028 does not require that a name and social security
number be used together in order for them to become a
“means of identification.” To the contrary, it states that any
name or number may be used “alone or in conjunction with
any other information, to identify a specific individual.”
18 U.S.C. 1028(d)(3) (emphasis added). A social security
number is clearly defined as a “means of identification” and,
thus, its use to obtain a loan falls within the scope of the
statute and the Sentencing Guidelines even if another form
was not used. 18 U.S.C. § 1028(d)(3).
Further, unlike the use of a stolen credit card to make a
purchase, obtaining a bank loan involves the opening of a new
line of credit. Opening a new line of credit, as opposed to
using a line of credit that already exists, is what distinguishes
the first set of examples, where the enhancement applies,
from the second set of examples, where the enhancement does
not apply. In the examples where the enhancement applies,
a bank loan that did not otherwise exist is created and a new
credit card is obtained. In the examples where the
enhancement does not apply, the defendant used an existing
credit card to make a purchase and cashed a check from an
existing bank account. Thus, while the use of someone’s
credit card to make a purchase is a punishable offense, the
nature of the harm is different from that which results from
using someone’s identifying information to establish new
credit.
Finally, Williams’s argument that she bought a loan
package and not a social security number and, thus, that her
conduct is not within the purview of the enhancement, is
similarly without merit. Whether Williams bought the social
security number as part of a package that was used to procure
a loan or bought the social security number and used it to fill
out a loan application is irrelevant. The harm to the person
whose social security number was used is the same in both
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instances. Williams knew that the loan package included a
social security number other than her own and that the social
security number would be used to obtain the loan.
Accordingly, the sentencing court did not err in finding that
the § 2B1.1(b)(9)(C)(i) enhancement applied to Williams’s
and Kelly’s conduct.
B. Ex post facto considerations
If a district court determines that use of the version of the
Sentencing Guidelines in effect on the date of sentencing
would violate the ex post facto clause, the version of the
Sentencing Guidelines in effect on the date the offense of
conviction was committed should be used. UNITED STATES
SENTENCING GUIDELINES MANUA L § 1B1.11(b)(1) (2002). In
this case, Kelly was sentenced on January 17, 2003. The facts
revealed that Kelly used the fraudulent social security number
when he applied for a home loan on or about May 22, 2000.
The district court applied the 1998 Sentencing Guidelines to
Kelly’s conduct because it determined that the 2002
Sentencing Guidelines would result in a higher offense level.
The court’s finding was based on the fact that the
§ 2B1.1(b)(9)(C)(i) enhancement would apply if the 2002
Sentencing Guidelines were utilized. With the enhancement,
the adjusted offense level using the 2002 Sentencing
Guidelines is 12 while the 1998 Sentencing Guidelines results
in an offense level of 9. As previously discussed, the
§ 2B1.1(b)(9)(C)(i) enhancement was applicable to Kelly’s
conduct. Accordingly, the district court did not err in using
the 1998 Sentencing Guidelines due to ex post facto concerns.
C. District court’s refusal to grant Ward’s downward
departure
Generally, we will not “review a district court’s refusal to
exercise its discretion to grant a downward departure.”
United States v. Ridge, 329 F.3d 535, 544 (6th Cir. 2003).
We do have jurisdiction, however, to review a district court's

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belief “that it lacked any authority to depart downward as a
matter of law.” Id. (quoting United States v. Ebolum, 72 F.3d
35, 37 (6th Cir.1995)). We review de novo whether the
district court was aware of its authority to make a downward
departure, examining the transcript of the sentencing hearing
to make this determination. Id. We presume that the
sentencing court has properly exercised its discretion when it
decides that a departure is not warranted, as “there is no duty
on the trial judge to state affirmatively that he knows he
possesses the power to make a downward departure, but
declines to do so.” United States v. Byrd, 53 F.3d 144, 145
(6th Cir.1995).
In its introduction to the Sentencing Guidelines, the
Sentencing Commission states that it “intends the sentencing
courts to treat each guideline as carving out a ‘heartland,’ a
set of typical cases embodying the conduct that each guideline
describes. When a court finds an atypical case, one to which
a particular guideline linguistically applies but where conduct
significantly differs from the norm, the court may consider
whether a departure is warranted.” UNITED STATES
SENTENCING GUIDELINES MANUA L ch. 1, pt. A, subpt. 4(b)
(2002). By statute, a district court may sentence outside the
prescribed guideline range if “there exists an aggravating or
mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result
in a sentence different from that described.” 18 U.S.C.
§ 3553(b); UNITED STATES SENTENCING GUIDELINES
MANUA L § 5K2.0 (2002).
In this case, a de novo review of the transcript from Ward’s
sentencing hearing reveals that the district court explicitly
recognized that it possessed the discretion to depart
downward. The government argued that “while the court
does have the ability to give a downward departure in this
case, that the conduct is not outside the heartland.” J.A. at
250. After defense counsel’s response to the government’s
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Nos. 03-5107/5189/5192
argument, Judge Gibbons stated: “You know, I don’t really
have a lot of flexibility in this case. And that doesn’t mean I
don’t recognize my ability to depart downward, because I
do.” J.A. at 251. After consideration of all of Ward’s
arguments for downward departure, Judge Gibbons stated:
The factors are just not here for a downward departure
that take this case out of the norm of cases. A number of
the factors that you’ve mentioned are already covered in
the guidelines, a number of others. The facts in this case
just don’t warrant a downward departure on that basis,
even when all the factors are considered together.
J.A. at 255. As the sentencing court was aware of its
authority to depart, Ward lacks a basis to challenge the
sentencing court’s denial of her motion for a downward
departure.
CONCLUSION
For the foregoing reasons, we AFFIRM the sentences of
Williams, Kelly, and Ward.

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