FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50480
Plaintiff-Appellee,
v. D.C. No.
2:09-CR-00565-DSF
LESLIE N. ONYESOH, an individual,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
January 13, 2012—Pasadena, California
Filed April 4, 2012
Before: William A. Fletcher and Raymond C. Fisher,
Circuit Judges, and Jack Zouhary, District Judge.*
Opinion by Judge Zouhary
*The Honorable Jack Zouhary, District Judge for the U.S. District Court
for the Northern District of Ohio, Toledo, sitting by designation.
3661
UNITED STATES v. ONYESOH 3663
COUNSEL
Hassan Gorguinpour (argued), Law Office of Hassan Gor-
guinpour, Cerritos, California, and Mark Yanis, Huntington
Beach, California, for the defendant-appellant.
Amanda Miller Bettinelli (argued) and Curtis Arthur Kin,
Office of the U.S. Attorney, Los Angeles, California, for the
plaintiff-appellee.
OPINION
ZOUHARY, District Judge:
INTRODUCTION
This appeal addresses access device fraud under 18 U.S.C.
§ 1029 and, specifically, whether the Government must prove
3664 UNITED STATES v. ONYESOH
the usability of an expired credit card number in order for a
district court to enhance a sentence. We find evidence of
usability is required and vacate the sentence because the Gov-
ernment failed to carry its burden.
BACKGROUND
In May 2009, postal agents conducted a search of
Defendant-Appellant Leslie Onyesoh’s (“Defendant”) home
resulting in the discovery of, among other things, stolen mail,
credit cards, and a spreadsheet containing 500 expired credit
card numbers. Defendant pled guilty to possession of stolen
mail and access device fraud, including the knowing posses-
sion of “fifteen or more . . . unauthorized access devices” with
the intent to defraud. 18 U.S.C. § 1029 (a)(3). An unautho-
rized access device is defined as “any access device that is
lost, stolen, expired, revoked, canceled, or obtained with
intent to defraud.” § 1029(e)(3). Under the statute’s definition
of “access device,” the device must be capable of obtaining
“money, goods, services, or any other thing of value.”
§ 1029(e)(1).
The presentence report concluded that the 500 expired
credit card numbers were unauthorized access devices and
recommended a 12-level enhancement under U.S. Sentencing
Guidelines § 2B1.1(b)(1)(G) for a loss greater than $200,000.
The report arrived at this dollar figure because Application
Note 3(F)(i) assesses a minimum loss of $500 per device. As
explained in the report:
[Defendant] possessed credit cards belonging to at
least 14 different account holders ($7,000), 19 credit
card profiles, including credit card account numbers
($9,500), a typed spread sheet containing victim pro-
files and credit card account numbers of approxi-
mately 500 different individuals ($250,000), and one
check for $1,096.57. Onyesoh also caused an actual
loss of $43,098.92 to three victims. Considering
UNITED STATES v. ONYESOH 3665
these figures, the total loss is approximately
$310,695.49. Accordingly, a 12-level increase
applies.
The enhancement was the focus of the sentencing hearing,
where Defendant objected to the loss calculation. Defendant
conceded that expired credit cards could be unauthorized
access devices, but only if their usability was also shown. The
Government countered that such proof was not required and,
in any event, there was “no doubt” expired credit card num-
bers could provide a credit history or help establish a new
credit account. The district court applied the enhancement,
accepting the Government’s argument that the expired credit
card numbers were unauthorized access devices without
requiring further proof of usability.
The additional loss calculated from the 500 expired credit
card numbers increased the Guidelines range from 18-24
months to 37-46 months. Defendant was sentenced to 46
months. This appeal followed.
JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction pursuant to 28 U.S.C. § 1291. The dis-
trict court’s interpretation of the criminal statute is reviewed
de novo. See United States v. Carranza, 289 F.3d 634, 642
(9th Cir. 2002). The district court’s factual findings are
reviewed for clear error. United States v. Garro, 517 F.3d
1163, 1167 (9th Cir. 2008). “[A] material error in calculating
the sentencing range is grounds for resentencing.” Id.
DISCUSSION
Usability Requirement
[1] Our analysis begins with the language of the statute.
An “unauthorized access device” must be an “access device,”
3666 UNITED STATES v. ONYESOH
which itself must be capable of obtaining “money, goods, ser-
vices, or any other thing of value.” 18 U.S.C. §§ 1029(e)(1)
and (e)(3). The statute’s language is clear and we give it full
effect — unauthorized access devices are a subset of access
devices, and therefore must be capable of obtaining some-
thing of value. See TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001) (holding a cardinal principal of statutory interpretation
is that “no clause, sentence, or word shall be superfluous,
void, or insignificant”).
The statute is intended to target major fraud operations
instead of individual use of “an expired or revoked card,” and
the statute was written broadly in order to “encompass future
technological changes.” See H.R. Rep. No. 98-894, at 19-20
(1984); see also United States v. Dabbs, 134 F.3d 1071, 1081
(11th Cir. 1998) (holding use of merchant account numbers
was criminal even though those numbers were not specifically
mentioned in the statute). But the kind of devices potentially
covered by the statute says nothing about the quantum of
proof necessary to establish usability. The legislative history
simply does not address that issue.
No court, in this or any other circuit, has read usability out
of the statute. In United States v. Nguyen, the defendant pos-
sessed 110 blank credit cards and was convicted of access
device fraud. 81 F.3d 912, 914 (9th Cir. 1996). The defendant
argued there was no evidence the blank cards were usable and
therefore they were not access devices. Id. The court found
the statute required the user to “be able to obtain goods or ser-
vices,” id. at 915 (quoting United States v. Bailey, 41 F.3d
413, 418 (9th Cir. 1994)), and also determined the defendant
was capable of using the blank cards because “[s]he possessed
an embosser and credit card account numbers,” and was prac-
ticing how to use this equipment. Id.
On strikingly similar facts to the instant case, a district
court found that expired credit card numbers were unautho-
rized access devices. United States v. Jones, 557 F. Supp. 2d
UNITED STATES v. ONYESOH 3667
630 (E.D. Pa. 2008). In Jones, the defendant argued these
expired numbers could not be used. Disagreeing, the district
court noted “Jones’ argument that expired credit cards are not
access devices runs contrary to the very text of the statute.”
Id. at 638. The district court also held that the Government
must prove that each access device “could have been used” to
obtain value, the very issue we face here. Id.
In United States v. Brewer, a case heavily relied on by the
Government, the court held long distance telephone service
access codes were access devices even though many of the
numbers were non-working. 835 F.2d 550, 554 (5th Cir.
1987). Brewer analyzed whether the definitions of “unautho-
rized,” under Subsection (e)(3), and “counterfeit,” under Sub-
section (e)(2), were mutually exclusive, and whether applying
both terms to the same conduct was appropriate. Id. at 553.
But nowhere does that case address usability.
[2] We hold that unauthorized access devices must be
usable. This conclusion gives effect to the entire statute and
is consistent with its plain language.
Proof of Usability
[3] Defendant’s sentence was enhanced because the district
court found the expired credit card numbers in his possession
were unauthorized access devices. In order for the district
court to make this finding, the Government had to prove the
usability of the expired credit card numbers by a preponder-
ance of the evidence. See United States v. Cazares, 121 F.3d
1241, 1248 (9th Cir. 1997) (holding a sentence enhancement
was improper when the government failed to prove a fact by
a preponderance).
[4] Of course, the amount of proof necessary will depend
upon the access device at issue. For some types of access
devices — e.g., credit card and bank account numbers —
usability may be self-evident. But while a working credit card
3668 UNITED STATES v. ONYESOH
can clearly be used to obtain value, the usability of other types
of access devices may not be readily apparent.
Presented at appellate oral argument with a hypothetical of
credit card numbers that had expired 35 years ago and were
useless, the Government conceded such numbers would not
be covered under the statute. Here, Defendant’s credit card
numbers had been expired for some three years, yet the Gov-
ernment argued these numbers required no further proof of
usability because the evidence was “overwhelming” Defen-
dant used, or could have used, these numbers. We have care-
fully reviewed the record in this case and found no evidence
of usability, let alone “overwhelming” evidence. There was
no crossover between Defendant’s victims and the list of
expired numbers, and there was no showing Defendant ever
took steps or attempted to use the expired numbers, or that
Defendant possessed them before their expiration.
[5] In short, the Government needed to show some usabil-
ity of these expired numbers. For example, the Government
could have offered expert testimony to establish usability. See
United States v. Yellowe, 24 F.3d 1110, 1113 (9th Cir. 1994)
(finding the district court’s calculation of an offense level cor-
rect when based on testimony that 90% of the devices were
useable). Evidence that Defendant was prepared to use the
numbers in combination with another device also could have
satisfied the statutory requirements. See Nguyen, 81 F.3d at
914 (finding blank cards in combination with an embosser
qualifies as access devices). The lack of any evidence is fatal.
“It matters only that the user of the access device be able to
obtain goods or services from which he would otherwise be
excluded.” Bailey, 41 F.3d at 418. We have no way of telling
whether the expired credit card numbers, in this case, are
unauthorized access devices under the statute.
CONCLUSION
For an unauthorized access device whose usability is not
readily apparent, such as an expired credit card number, some
UNITED STATES v. ONYESOH 3669
proof of usability is required when the defendant does not
concede the fact or when the defendant challenges the
enhancement. For the foregoing reasons, the sentence is
vacated, and this case is remanded for further proceedings to
allow the district court to hear evidence of usability.
VACATED and REMANDED.