United States of America v. A.m

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-1120
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UNITED STATES OF AMERICA
v.
A.M.,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-15-cr-00303-002)
District Judge: Honorable Sylvia H. Rambo
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Argued January 24, 2019
Before: SMITH, Chief Judge, and CHAGARES and BIBAS, Circuit Judges
(Filed: June 20, 2019)
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OPINION OF THE COURT
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Ronald A. Krauss
Quin M. Sorenson [ARGUED]
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant

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James T. Clancy
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Geoffrey W. MacArthur [ARGUED]
Office of United States Attorney
240 West Third Street
Suite 316
Williamsport, PA 17701
Counsel for Appellee
BIBAS, Circuit Judge.
The text of a law governs its reach. We will neither read in
new limits nor read out existing limits on its application. In
seeking to lower his sentence, A.M. asks us to do both.
First, he asks us to impose new limits on a Sentencing
Guidelines enhancement. A.M.’s sentence for bank fraud was
enhanced for using “device-making equipment.” U.S.S.G.
§ 2B1.1(b)(11)(A)(i). But he was also convicted of aggravated
identity theft. And that conviction precludes any enhancement
for “the transfer, possession, or use of a means of identifica-
tion.” Id. § 2B1.6 cmt. n.2. So A.M. argues that his aggravated-
identity-theft conviction precludes the device-making en-
hancement. But while device-making equipment can copy
means of identification, it is not itself a means of identification.
So the device-making enhancement was proper.

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Second, he asks for a departure below the mandatory-min-
imum sentence for aggravated identity theft. But the law em-
powers courts to depart below a statutory minimum only
“[u]pon motion of the Government.” 18 U.S.C. § 3553(e). The
government made no such motion here. So both of A.M.’s ar-
guments fail, and we will affirm.
I. B ACKGROUND
In 2014, A.M. defrauded two banks and their customers. He
put skimming devices and PIN-pad overlays onto ATMs to
capture victims’ account information and PINs. He then used
that information to make counterfeit debit cards that allowed
him to buy goods and withdraw cash.
But he got caught. He was charged with nineteen counts of
bank fraud and aggravated identity theft under 18 U.S.C.
§§ 1028A and 1344. Under a plea agreement, he pleaded guilty
to only one count of bank fraud and one of aggravated identity
theft. Each crime required a separate sentence, because the law
forbidding aggravated identity theft generally requires a man-
datory two-year, consecutive sentence. Id. § 1028A(a)(1) &
(b). And the government agreed that, if it found that A.M. had
provided substantial assistance, it could move for a downward
departure below the guideline range (under U.S.S.G. § 5K1.1),
below the statutory minimum (under 18 U.S.C. § 3553(e)), or
both.
So the District Court had to impose two sentences for the
two crimes, and A.M. objected to each one. First, he objected
to his guideline calculation for the bank-fraud conviction. The
Court calculated his guideline range for bank fraud as 15 to 21

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months. A.M. objected to that calculation because it included
a two-level enhancement for using “device-making equip-
ment” to make counterfeit debit cards. U.S.S.G.
§ 2B1.1(b)(11)(A)(i). He argued that his conviction for aggra-
vated identity theft precluded that enhancement. The Court dis-
agreed. But because A.M. had cooperated, the government
moved under § 5K1.1 to reduce his bank-fraud sentence. The
Court granted that motion and sentenced him to only ten
months’ imprisonment on that count.
Second, A.M. objected that the government had not also
moved for a departure below the mandatory-minimum sen-
tence for his aggravated-identity-theft sentence. According to
A.M., the government had agreed to do so as part of his plea
deal. He argued that, because the government had violated its
agreement, the Court should grant the departure of its own ac-
cord. The Court refused, finding that identity theft is an espe-
cially severe crime. So it sentenced A.M. to the mandatory-
minimum sentence of two years’ consecutive imprisonment for
the identity theft.
A.M. now appeals. We review all questions of law de novo.
United States v. Torres, 251 F.3d 138, 145 (3d Cir. 2001).
II. AGGRAVATED IDENTITY THEFT DOES NOT PRECLUDE AN
E NHANCEMENT FOR USING DEVICE-MAKING E QUIPMENT
A.M. first argues that because he was sentenced for ag-
gravated identity theft, his bank-fraud sentence cannot be en-
hanced for using device-making equipment to make counterfeit
debit cards. But that is not so. The Guidelines bar an enhance-
ment only for having or using “a means of identification.” And

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while device-making equipment can copy a means of identifi-
cation, it is not the same as a means of identification.
For those convicted of aggravated identity theft, the Guide-
lines say only to apply the statutory sentence. U.S.S.G. § 2B1.6.
That sentence is a mandatory, consecutive two years’ impris-
onment. 18 U.S.C. § 1028A(a)(1) & (b). But aggravated iden-
tity theft requires proof of an underlying felony. Id.
§ 1028A(a)(1). That underlying felony may overlap with iden-
tity theft. Because, with rare exceptions, the aggravated-iden-
tity-theft sentence is consecutive, a defendant could be pun-
ished twice for the same crime. To avoid double punishment,
the Guidelines bar enhancing the underlying felony sentence
“for the transfer, possession, or use of a means of identifica-
tion.” U.S.S.G. § 2B1.6 cmt. n.2.
Here, the District Court added a two-level enhancement for
using “device-making equipment” under § 2B1.1(b)(11)(A)(i).
That enhancement applied to the underlying felony of bank
fraud. And using device-making equipment is different from
possessing, transferring, or using “a means of identification.”
U.S.S.G. § 2B1.6 cmt. n.2. A “means of identification” is in-
formation “that may be used . . . to identify a specific individ-
ual,” such as a person’s name, driver’s license number, or pass-
port number. 18 U.S.C. § 1028(d)(7). But “device-making
equipment” is equipment used to make credit cards, debit
cards, and similar “access device[s].” 18 U.S.C. § 1029(e)(6)
&(e)(1). That equipment can be used to copy a means of iden-
tification. The copying equipment, however, is not itself a
means of identification. The Guidelines bar only enhancements

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for using the latter. So the Guidelines do not preclude the de-
vice-making-equipment enhancement.
Every other circuit to address this question agrees. United
States v. Jones, 792 F.3d 831, 835 (7th Cir. 2015); United
States v. Cruz, 713 F.3d 600, 606-07 (11th Cir. 2013); United
States v. Sharapka, 526 F.3d 58, 62 (1st Cir. 2008); see United
States v. Jenkins-Watts, 574 F.3d 950, 961-62 (8th Cir. 2009);
cf. United States v. Taylor, 818 F.3d 671, 675 (11th Cir. 2016)
(restating the holding of Cruz, 713 F.3d at 606-07).
A.M. offers two rejoinders, but both fail. First, he points to
the sentence right after § 2B1.6’s ban on enhancements for us-
ing “a means of identification”: “A sentence under this [aggra-
vated-identity-theft] guideline accounts for this [means-of-
identification] factor for the underlying offense of conviction,
including any such [means-of-identification] enhancement that
would apply based on conduct for which the defendant is ac-
countable under § 1B1.3 (Relevant Conduct).” § 2B1.6 cmt.
n.2. He argues that the reference to relevant conduct includes
all conduct relevant to aggravated identity theft. That includes
using a device maker to steal people’s identities. So, he asserts,
it bars an enhancement “based on [that] conduct.” Id.
But he skips over a key word: “such.” Only “such enhance-
ments . . . based on [relevant] conduct” are barred. Id. (empha-
sis added). “Such” plainly refers to the kinds of enhancements
just listed in the previous sentence: having, transferring, or us-
ing a means of identification. And that list is specific. It does
not sweep broadly to include all conduct relating to a means of
identification, and certainly does not include device-making
equipment.

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Another phrase confirms this. Section 2B1.6 states that the
mandatory two-year sentence “accounts for this factor.” “This
factor” can refer only to what immediately precedes it: a means
of identification. See Cruz, 713 F.3d at 607. So § 2B1.6 bars
enhancements only for means of identification, not for device-
making equipment.
Second, A.M. argues that device-making equipment is used
to make a means of identification. See 18 U.S.C. § 1029(e)(6).
But the act of producing something is different from using the
thing produced. Making a drug is different from using a drug.
So too, using equipment to copy a means of identification is
different from using the means of identification itself. And that
obviates A.M.’s concern with double punishment. His aggra-
vated-identity-theft sentence punishes his use of customers’
stolen PINs and account numbers; his bank-fraud-sentence en-
hancement punishes his using equipment to make fake debit
cards with that stolen information. The enhancement captures
different conduct.
Thus, § 2B1.6 does not bar the enhancement for using de-
vice-making equipment under § 2B1.1(b)(11)(A)(i). In so hold-
ing, we need not address other enhancements found in
§ 2B1.1(b)(11), such as enhancements for trafficking access
devices. Cf. Jones, 792 F.3d at 835 (7th Cir. 2015) (reaching
that question); United States v. Lyons, 556 F.3d 703, 708 (8th
Cir. 2009) (same). The District Court did not err.

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III. T HE DISTRICT COURT L ACKED THE POWER TO DEPART
B ELOW THE S TATUTORY MINIMUM ON A.M.’S AGGRAVATED -
I DENTITY -T HEFT S ENTENCE
A.M. also argues that the District Court erred in refusing to
depart below the two-year statutory minimum sentence for ag-
gravated identity theft. He claims that the government
breached its plea agreement by not moving for such a depar-
ture. He complains that the sentencing judge failed to state her
reasons for denying the departure. And he asserts that the judge
applied a uniform sentencing policy, rather than evaluating his
case on its own. But all these arguments fail because the gov-
ernment never moved for this departure, so the District Court
lacked the power to grant it.
Aggravated identity theft carries a mandatory-minimum
sentence that binds district courts. 18 U.S.C. § 1028A(a).
Courts may depart below a statutory minimum only “[u]pon
motion of the Government.” 18 U.S.C. § 3553(e).
But the government made no such § 3553(e) motion here.
Nor did the plea agreement obligate it to do so; the government
agreed only that it could move for a departure below the statu-
tory minimum or the Guidelines. And the government exer-
cised this discretion: It moved for a departure on A.M.’s bank-
fraud sentence under § 5K1.1 of the Guidelines. But it specifi-
cally declined to move for a sentence below the mandatory
minimum for aggravated identity theft. And it never mentioned
§ 3553(e).
A.M. replies that the government moved for a departure on
his bank-fraud sentence. And, he insists, a motion to depart is

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a motion to depart—period. The motion is the key that unlocks
all of his sentences.
But the Supreme Court instructs otherwise. A motion to de-
part below the Guidelines “does not [also] authorize a depar-
ture below [the] statutory minimum.” Melendez v. United
States, 518 U.S. 120, 124 (1996). Nor is an acknowledgement
of a defendant’s “substantial assistance” enough. Id. at 126. In-
stead, to trigger § 3553(e), the government must file a “motion
requesting or authorizing” a statutory departure. Id. at 125-26.
That motion must reflect the government’s “desire for, or con-
sent to, a sentence below the statutory minimum.” Id. at 126.
The government made no such motion. It expressly recom-
mended against departing below the statutory minimum. So the
District Court lacked the power to grant the departure.
* * * * *
A.M. is in some ways sympathetic. While he defrauded
people and banks, he then readily acknowleged his guilt and
his fraudulent scheme. For that, he received a lower sentence
for his bank-fraud conviction. But he is not entitled to the
additional relief he seeks. The enhancement to his bank-fraud
sentence for using device-making equipment was proper, not
duplicative of using a means of identification. His plea
agreement did not promise him a downward departure below
the mandatory minimum for his aggravated-identity-theft
sentence. And because the government did not move for one,
the District Court lacked the power to depart below the
statutory mandatory minimum. We will affirm.

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