[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12096 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 22, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:09-cr-00021-RH-WCS-7
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
ANTHONY KELLAM,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(February 22, 2011)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Anthony Kellam appeals his 94-month total sentence, imposed after he
pleaded guilty to conspiracy to commit fraud in connection with counterfeit credit
cards or other access devices (Count 1); fraud in connection with counterfeit credit
cards or other access devices (Count 2); and aggravated identity theft (Count 10).
He raises two issues on appeal. First, Kellam argues that the district court erred in
imposing the two-year consecutive sentence mandated by the aggravated identity
theft statute, 18 U.S.C. § 1028A, because its application created an unwarranted
sentence disparity in contravention of 18 U.S.C. § 3553. Second, Kellam argues
that the district court erred in counting certain parent companies and their
subsidiaries as separate “victims” under U.S.S.G. § 2B1.1(b)(2)(B). Upon review
of the record and consideration of the parties’ briefs, we affirm.
We review a district court’s interpretation of a statute de novo. United
States v. Segarra, 582 F.3d 1269, 1271 (11th Cir. 2009) (per curiam), cert. denied,
131 S. Ct. 633 (2010). “We review findings of fact for clear error and application
of the sentencing guidelines de novo.” United States v. Gupta, 572 F.3d 878, 887
(11th Cir. 2009), cert. denied, 130 S. Ct. 1302 (2010). “‘Although review for clear
error is deferential, a finding of fact must be supported by substantial evidence.’”
Id. (quoting United States v. Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007)).
And at sentencing, “‘[w]hen a defendant challenges one of the factual bases of his
sentence,’” the government must, “‘with reliable and specific evidence,’” establish
that fact by a preponderance of the evidence. Id. (quoting United States v.
2
Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997)). “‘Whether a person is a victim’
under the Sentencing Guidelines ‘is a legal conclusion we review de novo.’”
United States v. Ellisor, 522 F.3d 1255, 1275 (11th Cir. 2008) (quoting United
States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007)).
To address Kellam’s first argument, we must begin with § 1028A’s plain
language. See Segarra, 582 F.3d at 1271. “If the statute’s meaning is plain and
unambiguous, there is no need for further inquiry.” Id. (quoting United States v.
Fisher, 289 F.3d 1329, 1337–38 (11th Cir. 2002) (internal quotation and citation
omitted)). In pertinent part, § 1028A states:
(b) Consecutive sentence. -- Notwithstanding any other provision of law --
...
(3) in determining any term of imprisonment to be imposed for
the [underlying felony], a court shall not in any way reduce the
term to be imposed for such crime so as to compensate for, or
otherwise take into account, any separate term of imprisonment
imposed or to be imposed for a violation of [§ 1028A] . . . .
18 U.S.C. § 1028A(b) (emphasis added).
We interpreted a similar statute, 18 U.S.C. § 924(c), in United States v.
McLymont, 45 F.3d 400 (11th Cir. 1995) (per curiam). In McLymont, we
concluded that “Congress’ use of the phrase ‘notwithstanding any other provision
of law’ makes it clear that Congress intended the penalty provisions of § 924(c) to
3
take precedence over any preexisting or subsequently-enacted sentencing
legislation, including the Sentencing Guidelines.” 45 F.3d at 401. Section 1028A
plainly prohibits a district court from reducing a defendant’s sentence for his or
her underlying offense in order to compensate for the statute’s mandatory two-year
sentence. See 18 U.S.C. § 1028A(b)(3). And this mandate “take[s] precedence
over any preexisting or subsequently-enacted sentencing legislation,” including §
3553’s sentencing factors. See McLymont, 45 F.3d at 401. Consequently, the
district court did not err either in sentencing Kellam to an additional two years
pursuant to § 1028A, or in disregarding that additional two-year term in imposing
sentences for Kellam’s underlying offenses, regardless of the disparity between his
total sentence and those of his co-defendants.
As to Kellam’s second argument, the government introduced testimony at
the sentencing hearing establishing that the following financial institutions were in
some way involved in parent-subsidiary relationships at the time of the offense
conduct: (1) GE Money Bank and GE Capital Finance; (2) Chase Bank and
JPMorgan Chase Bank; (3) Wells Fargo and Wachovia; and (4) Bank of America
and FIA Card Services. Taking these relationships into account, the district court
found that there were 52 separate victims.
The Sentencing Guidelines impose a four-level enhancement when an
4
offense involves 50 or more victims. U.S.S.G. § 2B1.1(b)(2)(B). “Victim” is
defined as “any person who sustained any part of the actual loss determined
under” § 2B1.1(b)(1). U.S.S.G. § 2B1.1 cmt. n.1. And “individuals, corporations,
[and] companies . . .” are included, among other entities, in the definition of
“[p]erson.” Id. The commentary does not explain whether a parent company and
its subsidiary should be treated as one or multiple victims. But generally a parent
company and its subsidiary are separate entities unless “the corporate veil can be
pierced.” See Atlanta Gas Light Co. v. UGI Utils., Inc., 463 F.3d 1201, 1204 (11th
Cir. 2006).
Based on the testimony presented at the sentencing hearing, the district
court’s factual findings regarding the nature of the business relationships among
the entities in question were not clearly erroneous. And because nothing
suggested that the corporate veil had been or should be pierced, the district court
correctly determined that these parent companies and their subsidiaries were
separate victims. Accordingly, we affirm.
AFFIRMED.
5