United States v. McCants

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 2008 Decided February 10, 2009

No. 06-3161

UNITED STATES OF AMERICA,
APPELLEE

v.

CALVIN MCCANTS,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 02cr00130-01)

Carlos J. Vanegas, Assistant Federal Public Defender,
argued the cause for appellant. With him on the briefs was
A.J. Kramer, Federal Public Defender.

Steven E. Swaney, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese III, Mary B.
McCord, and Virginia Cheatham, Assistant U.S. Attorneys.

Before: GRIFFITH, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.
 2
GRIFFITH, Circuit Judge: Calvin McCants produced false
identifications and counterfeit documents that were used by
others to bilk several banks out of more than $110,000.
McCants pleaded guilty to possession of false document-
making implements in violation of 18 U.S.C. § 1028(a)(5)
(2000). On appeal, he challenges his sentence on the ground
that the district court improperly calculated his sentencing
range under the Federal Sentencing Guidelines. McCants
argues that the court erred by applying a two-level
enhancement for the use of “sophisticated means,” and that
the court’s calculation of the loss caused by his “relevant
conduct,” which affects his total offense level, was incorrect.
Because the record supports the district court’s conclusion
that McCants used sophisticated means to conceal his offense,
we find no error in that enhancement. We vacate and remand
for resentencing, however, because the district court erred by
including within McCants’s relevant conduct a bank fraud the
government failed to show had the requisite connection to
McCants’s offense.

I.

On March 15, 2002, the government filed a 15-count
indictment against McCants, charging him with, inter alia,
aiding and abetting a scheme to defraud several banks in
violation of 18 U.S.C. § 1344, possession of false
identification documents in violation of 18 U.S.C.
§ 1028(a)(7), and possession of false document-making
implements in violation of 18 U.S.C. § 1028(a)(5). The
alleged scheme involved the creation and use of false
identification documents to obtain fraudulent loans from
various banks. Appellant’s App. at 24 (Indictment).
McCants’s role in the scheme was to acquire credit histories
and other personal information for the innocent people under
whose names the loans would appear. Id. at 25. McCants used
 3
this information to produce false identification documents
bearing the names of his creditworthy victims with the
pictures of individuals his coconspirators recruited to seek
fraudulent loans from the banks. Id.

On August 19, 2003, McCants pleaded guilty to knowing
possession of false document-making implements.1 The plea
agreement stipulates that section 2B1.1 of the Sentencing
Guidelines applies to McCants’s offense, see U.S.
SENTENCING GUIDELINES MANUAL § 2B1.1 (2003)
[hereinafter U.S.S.G.], and that his base offense level is 6.
Appellant’s App. at 38 (Plea Agreement). McCants also
agreed to a two-level increase to his sentence because his
offense involved more than ten but fewer than fifty victims,
and another two-level increase because the offense involved
the possession of device-making equipment. Id. For its part,
the government agreed to dismiss the remaining counts of the
indictment and to decrease McCants’s sentence by two levels
because he accepted responsibility for his crime. Id. at 39. For
those keeping score, which we recommend when trying to
follow the reasoning of courts making their way through the
numbers-driven world of the Sentencing Guidelines,
McCants’s offense level at this point is 8.

1
18 U.S.C. § 1028(a)(5) criminalizes the knowing possession of “a
document-making implement with the intent such document-
making implement will be used in the production of a false
identification document or another document-making implement
which will be so used.” A document-making implement is “any
implement, impression, template, computer file, computer disc,
electronic device, or computer hardware or software, that is
specifically configured or primarily used for making an
identification document, a false identification document, or another
document-making implement.” Id. § 1028(d)(1).
 4
Disputes nonetheless remained over McCants’s final
offense level. Section 2B1.1 pegs an offense level to the
amount of loss for which the defendant is responsible. This
loss calculation depends on the scope of the defendant’s
“relevant conduct,” see U.S.S.G. § 1B1.3(a), and the
government and McCants disagreed on whether the bank
fraud fell within his “relevant conduct,” as that phrase is
defined in the Sentencing Guidelines. If the bank fraud is
conduct relevant for McCants’s offense, the loss he caused
would rise to between $200,000 and $400,000, and his
offense level would increase by twelve levels. The
government and McCants also disagreed on whether his
offense involved “sophisticated means,” which would support
an added two-level enhancement. See id. § 2B1.1(b)(8)(C).

In a statement attached to his plea agreement, McCants
admitted possessing an inventory of false document-making
implements on three dates: December 12, 2000, December 21,
2000, and March 25, 2002. Appellee’s R. Material at 1–5
(Factual Statement). The statement referred only to those
discrete dates and said nothing about McCants possessing the
inventory at any other time. It was on these dates that the
government executed search warrants at McCants’s home, the
Washington, D.C., and Baltimore, Maryland, offices of his
company, Custom Computers, and several storage units that
had been rented under one of his aliases. Id. Among the
equipment found and confiscated on these dates were
electronic templates for driver’s licenses, passports, and birth
certificates; unfinished Social Security cards; a pamphlet
titled “How to make driver’s licenses and other ID’s on your
home computer”; and a paper file titled “Bank Fraud Issues.”
Id.

After McCants entered his plea, the United States
Probation Office prepared and issued its final Presentencing
 5
Investigation Report (PSR), which concluded that an
enhancement for the use of sophisticated means was not
appropriate. The Probation Office found, however, that
McCants’s offense resulted in more than $200,000 but less
than $400,000 in loss from conduct relevant to his crime. The
Probation Office’s loss calculation was comprised of
$145,500 in loss unrelated to the bank fraud, $110,252 in loss
associated with the bank fraud, and $32,949 in loss stemming
from two defaulted loans held under the name “Celvin
McCants.” PSR ¶¶ 32–33. Beginning at the agreed-upon
offense level of 8, the Probation Office applied the twelve-
level increase from the loss calculation and settled upon a
recommended total offense level of 20. Id. ¶¶ 41–50.
Combined with McCants’s criminal history category of III,
the Probation Office’s determinations yielded a sentencing
range of 41 to 51 months. Id. ¶¶ 54, 83.

The district court held a sentencing hearing to resolve
McCants’s objection to the Probation Office’s conclusion
regarding his relevant conduct. The government presented
testimony by Rickey Buchanan, the confessed ringleader of
the bank fraud who was now cooperating with the
prosecution. Buchanan testified that McCants gave him the
false driver’s licenses and military identifications, credit
reports, and other financial information needed to commit the
bank fraud. Sentencing Hr’g Tr. 76–79 (Mar. 3, 2004). He
also testified that McCants did much more. According to
Buchanan, McCants not only knew of the bank fraud but
advised him how to pull it off. For example, McCants told
Buchanan the documents needed to obtain bank loans, how
many times to use a particular identification, and how many
loans he could obtain at a single bank without creating
suspicion. Id. at 82–83. McCants also told Buchanan that his
coconspirators should “dress the part” when impersonating
loan-seekers. See id. at 83. The government introduced
 6
physical evidence to corroborate Buchanan’s testimony,
including false identifications and documents used in the bank
fraud that were obtained from McCants.

The district court announced McCants’s sentence on May
11, 2004. Although it used the recommended PSR offense
level of 20 as its “basic figure,” Sentencing Hr’g Tr. 7 (May
11, 2004), the court departed from the PSR in two respects. It
concluded that McCants employed sophisticated means
worthy of an added two-level enhancement. Id. at 8–9. The
court also imposed an additional two-level enhancement not
applied in the PSR to account for McCants’s falsification of
Social Security numbers and military identifications. Id. at 9–
10. These enhancements led to an offense level of 24 and a
sentencing range of 63 to 78 months in prison. The district
court sentenced McCants to 78 months and ordered him to
pay restitution to the defrauded banks in the amount of
$77,852.15. Id. at 36. The court did not issue a sentencing
opinion.

On his first appeal, McCants argued that the district court
failed to make findings on disputed material sentencing issues
as required by Federal Rule of Criminal Procedure
32(i)(3)(B). See United States v. McCants, 434 F.3d 557, 561
(D.C. Cir. 2006). We agreed and remanded for resentencing,
finding “[c]hief among the controversies left unaddressed by
the District Court was the scope of McCants’ ‘relevant
conduct,’” id. at 562, and the facts that triggered the
sophisticated means enhancement, id. at 564–65.

On remand, the district court imposed an identical
sentence. United States v. McCants, No. 02-0130, slip op. at 1
(D.D.C. Oct. 27, 2006). The court found that the bank fraud,
which resulted in a loss of $110,252, was part of the relevant
conduct for which McCants was responsible. Together with
 7
the $32,949 loss associated with the Celvin McCants loans
and $133,500 in loss associated with his possession and sale
of counterfeit credit cards and other similar devices, the court
concluded that McCants was responsible for more than
$200,000 but less than $400,000 in loss. As a result, it
increased his sentence by twelve levels. Id. at 22. Turning to
the sophisticated means enhancement, the court
“wholeheartedly” agreed that McCants used sophistication in
the execution and concealment of his offense and applied a
two-level enhancement. Id. at 23–25. The court also imposed
another two-level enhancement because the sentence provided
for by the Sentencing Guidelines failed to “reflect the
seriousness of the offense.” Id. at 25–29. The next step for the
district court was totaling McCants’s offense level based on
the sum of the various calculations called for by the
Sentencing Guidelines. McCants’s base offense level for
unlawful possession of the false document-making tools was
6. This level rose to 26 after upward adjustments of four
levels as stipulated in the plea agreement, twelve levels for
the amount of loss caused, two levels for the use of
sophisticated means, and two levels for the seriousness of the
offense. Subtracting two levels for acceptance of
responsibility brought the total offense level to 24, which,
given McCants’s criminal history category of III, translated to
a sentencing range of 63 to 78 months. The district court
again selected the highest end of that range and sentenced
McCants to 78 months in prison. Id. at 29.

McCants appealed his sentence again. We have
jurisdiction under 18 U.S.C. § 3742. In United States v.
Booker, 543 U.S. 220 (2005), the Supreme Court held that the
Sentencing Guidelines are advisory, not mandatory. Id. at
245. Accordingly, we review McCants’s sentence under an
abuse-of-discretion standard: We “first ensure that the district
court committed no significant procedural error . . . .” Gall v.
 8
United States, 128 S. Ct. 586, 597 (2007). If a sentence is
procedurally unsound, discretion has been abused. United
States v. Tann, 532 F.3d 868, 873 (D.C. Cir. 2008). If no
procedural infirmity exists, we “consider the substantive
reasonableness of the sentence . . . .” Gall, 128 S. Ct. at 597.

McCants argues that the district court incorrectly applied
the Sentencing Guidelines to the facts. Specifically, he
contends the district court erred by including the bank fraud
within his relevant conduct and by concluding that his offense
involved sophisticated means.2 18 U.S.C. § 3742(e) provides
the standard under which we review these decisions.3
Accordingly, we “shall accept the findings of fact of the
district court unless they are clearly erroneous” and “shall
give due deference to the district court’s application of the
guidelines to the facts.” Id. We have explained before that due
deference “presumably . . . fall[s] somewhere between de

2
McCants does not contest the loss associated with his possession
and sale of counterfeit credit cards or the seriousness of the offense
enhancement. He does argue, however, that the district court erred
by attributing to him the loss associated with the Celvin McCants
loans. The government agrees. Appellee’s Br. 35–36 (“Even though
there was overwhelming evidence that [McCants] used ‘Celvin
McCants’ as an alias, there was no evidence from the banks
demonstrating that the loans were issued but never repaid.”).
Because we vacate McCants’s sentence and remand for
resentencing, we leave to the district court to determine the effect of
this concession on the sentence.
3
Though Booker held § 3742(e) unconstitutional insofar as it
required courts to reverse sentences falling outside the applicable
Sentencing Guidelines range, we have since held that this section
continues to provide the standard by which we review a district
court’s application of the Sentencing Guidelines. See Tann, 532
F.3d at 873–74 (“We . . . see no reason to think Booker displaced
the congressionally mandated standard of review . . . .”).
 9
novo and ‘clearly erroneous.’” United States v. Kim, 23 F.3d
513, 517 (D.C. Cir. 1994).

II.

Under section 2B1.1 of the Sentencing Guidelines, a
defendant’s offense level depends on the amount of loss
caused not only by the conduct for which he was convicted,
but also for the “relevant conduct” for which he is found
responsible. U.S.S.G. § 2B1.1; see also United States v.
Mellen, 393 F.3d 175, 182 (D.C. Cir. 2004). The Sentencing
Guidelines define relevant conduct as:

(A) all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully
caused by the defendant[] . . .

...

that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility
for that offense.

U.S.S.G. § 1B1.3(a)(1).

The district court found that, “[u]pon review of the
evidence, . . . [McCants] aided and abetted the bank fraud
scheme perpetrated by Buchanan” by supplying Buchanan
with false identifications, credit reports, and other financial
documents. McCants, No. 02-0130, slip op. at 11–16.
McCants does not dispute that he supplied such material to
Buchanan. Instead, he contends it was not his intention that
the bank fraud be carried out successfully, and that his aid to
Buchanan did not occur during, in preparation for, or in the
 10
course of concealing his offense as required by section
1B1.3(a)(1). Appellant’s Br. 11–12, 15.

We first address the standard we apply when reviewing a
district court’s determination concerning relevant conduct.
McCants simply refers to the general rule that we review
questions of law de novo, factual determinations for clear
error, and give due deference to the district court’s
applications of the Sentencing Guidelines to the facts.
Appellant’s Br. 9. The government cites United States v.
Seiler, 348 F.3d 265, 268 (D.C. Cir. 2003), to argue that we
ordinarily review relevant conduct determinations for clear
error. Appellee’s Br. 25. But in Seiler the relevant conduct
matter on review was the district court’s factual finding that
the defendant participated in a criminal conspiracy. Here we
are faced with both a factual question—whether McCants
aided the bank fraud—and an application of the Sentencing
Guidelines to the facts presented—whether McCants’s acts
fall within the Sentencing Guidelines’ definition of relevant
conduct. On the first issue, we use the clear error standard; on
the second, we grant the district court due deference.

The district court did not clearly err in finding that
McCants aided and abetted the bank fraud. The commentary
to section 1B1.3(a)(1) directs us to McCants’s “specific acts
and omissions . . . rather than [to] whether [he] is criminally
liable for an offense as a principal, accomplice, or
conspirator.” U.S.S.G. § 1B1.3 cmt. n.1; cf. Stinson v. United
States, 508 U.S. 36, 37 (1993) (“[C]ommentary to the
Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading
of, that guideline.”). There can be no serious dispute that
McCants’s acts and omissions aided and abetted the bank
fraud. Not only did he advise Buchanan on the types of
 11
documents needed to obtain a loan from a bank, but he
furnished Buchanan with false identifications, credit reports,
and other background financial information. He instructed
Buchanan on how best to accomplish the fraud, and he told
Buchanan how to ensure the scheme’s repeated success.
McCants argues in response that he lacked the “fraudulent
intent . . . to deprive the banks of their money . . . .”
Appellant’s Br. 15. Although intent is an indispensible
element in establishing criminal liability for the offense of
aiding and abetting, see United States v. Washington, 106
F.3d 983, 1004 (D.C. Cir. 1997) (quoting United States v.
Raper, 676 F.2d 841, 849 (D.C. Cir. 1982)), it is irrelevant to
our inquiry here. The commentary emphasizes actions over
intentions and expressly states that we are not to use the
criminal standard for aiding and abetting liability to determine
whether McCants aided the bank fraud.

The more difficult question is whether McCants’s aid to
the bank fraud occurred “during the commission of [his]
offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for
that offense.” U.S.S.G. § 1B1.3(a)(1).4 The district court

4
This temporal component of the relevant conduct guideline may
suffer from a serious flaw. A literal reading could permit the
government to punish a defendant for unrelated conduct, without
proving guilt beyond a reasonable doubt, simply by virtue of the
fact that the conduct occurred contemporaneously with his offense
of conviction. We doubt this reading is correct. That the provision
is labeled “relevant conduct” suggests that merely
contemporaneous conduct is insufficient, and the second and third
clauses of that provision seem to require a substantive link between
the relevant conduct and the offense of conviction. In any event,
McCants’s case does not pose such a problem. His offense of
conviction—possession of false document-making implements—is
related to the conduct for which the government seeks to hold him
 12
simply did not address this temporal component of section
1B1.3(a). Likewise, the government devotes little attention to
the issue. Without citing to record evidence, the government’s
brief claims in conclusory fashion that McCants “supplied the
counterfeit documents to Buchanan at the same time that [he]
possessed the false document-making equipment.” Appellee’s
Br. 34. At oral argument, the government referred in passing
to McCants’s offense of conviction as a “continuum,”
beginning with its preparation and extending beyond its actual
commission, see Oral Arg. Recording at 17:06–25, but failed
to show how McCants aided the bank fraud during this time.

We recognize that at some point McCants must have
possessed the tools needed to make the false identifications he
gave Buchanan. But McCants’s factual statement admits he
possessed false document-making implements on three
specific dates and otherwise makes no concessions regarding
when else he unlawfully possessed those tools or similar
equipment. The bank fraud occurred between August 2000
and July 2001. It is possible McCants assembled, possessed,
and disposed of the equipment used to aid the bank fraud
either before or after the days in December 2000 on which he
committed his offense of possession. If the government seeks
to include the bank fraud within the temporal component of
the relevant conduct provision, it must make some showing
that the tools McCants used to aid the bank fraud were those
he was caught with. United States v. Salmon, 948 F.2d 776,
778–79 (D.C. Cir. 1991) (“[T]he government bears the burden
of proving by a preponderance of the evidence any facts that
would enhance a defendant’s sentence.”).

responsible for at sentencing—use of those implements to make
false documents for a bank fraud.
 13
To determine if the government has met this burden, we
first ask whether it has shown that McCants aided the bank
fraud “during” his offense of conviction. U.S.S.G.
§ 1B1.3(a)(1). Because the factual basis for McCants’s
conviction was possession of false document-making tools on
December 12, 2000, December 21, 2000, and March 25,
2002, the government must show that McCants aided and
abetted the bank fraud on at least one of these three days. But
we find no evidence—and the government has pointed us to
none in its brief or at oral argument—that McCants assisted
Buchanan on any of these days. Although we know from
Buchanan’s testimony that McCants did help him at some
point, we are left to guess when this help occurred.

The government also has failed to satisfy either the
second or third clause of section 1B1.3(a)(1), which require
the government to show that McCants aided and abetted the
bank fraud “in preparation for [his] offense” or “in the course
of attempting to avoid detection or responsibility for [his]
offense.” Id. The government fails to make clear how
McCants’s assisting others to defraud the banks was done in
preparation for or in concealment of his crime of possession
of false document-making implements on three specific days.
The closest the government comes to carrying its burden on
this point is its self-evident claim made only at oral argument
that McCants must have gathered false document-making
equipment in preparation for his offense of possession of that
equipment. See Oral Arg. Recording at 24:29–35. The
government fails to take the necessary additional step required
by the temporal component of the guideline, however, and
demonstrate that the equipment McCants assembled in
preparation for his offense was the same equipment he used to
aid the bank fraud.
 14
McCants prevails because he pleaded guilty to unlawful
possession on only three discrete days, and the government
made no attempt to show he aided the bank fraud on those
days, in the course of preparing for his unlawful possession,
or in an attempt to conceal his crime. We therefore conclude
that, under the language of the Sentencing Guidelines, the
district court erred by including the bank fraud within
McCants’s relevant conduct. We vacate McCants’s sentence
and remand to the district court for resentencing. But we also
note that in the wake of Booker, district courts have room to
depart from the Sentencing Guidelines so long as they explain
their departures and the resulting sentence is “reasonable.”
Gall, 128 S. Ct. at 597.

III.

McCants also argues that the district court erred in
finding that his offense “involved sophisticated means.”
U.S.S.G. § 2B1.1(b)(8)(C). The Sentencing Guidelines leave
“sophisticated means” undefined, and this court has not had
occasion to provide guidance. The commentary to the
Sentencing Guidelines is again instructive: “‘[S]ophisticated
means’ means especially complex or especially intricate
offense conduct pertaining to the execution or concealment of
an offense.” Id. § 2B1.1 cmt. n.7. Conducting an offense in
multiple jurisdictions “ordinarily indicates sophisticated
means.” Id. So too does the use of “fictitious entities,
corporate shells, or offshore financial accounts” to conceal the
fruits of an unlawful scheme. Id.

McCants insists his means were not sophisticated. He
contends the efforts he employed to escape detection lack
sophistication because they are “not comparable to, for
example, the use of offshore enterprises, foreign corporations
or lengthy schemes designed solely to conceal and evade
 15
detection.” Appellant’s Br. 24. He also argues that the
government’s focus on his sophisticated production methods
and identification products is inappropriate given that his
offense of conviction is possession of false document-making
implements—not production of false identification
documents. According to McCants, his actual possession of
the illicit materials was not at all sophisticated. Appellant’s
Reply Br. 10, 13.

We disagree. The district court’s conclusion that
McCants’s offense warrants a sophisticated means
enhancement is an application of the Sentencing Guidelines to
the facts. We thus accord due deference to the court’s
conclusion that McCants’s “operations, used to conceal his
possession of his tools and of his activities, were especially
complex.” McCants, No. 02-0130, slip op. at 24. McCants
committed his offense in multiple states and kept some of his
false documents and device-making implements hidden in
storage units rented under an alias. He also admits to using an
allegedly legitimate business to conceal his offense from law
enforcement. See Oral Arg. Recording at 5:40–6:30. That we
can imagine scenarios involving more elaborate means to
avoid detection or conviction does not render the district
court’s resolution of the question invalid. We therefore affirm
the two-level enhancement for sophisticated means.

IV.

We vacate McCants’s sentence and remand this matter to
the district court for resentencing.

So ordered.