Argued: January 31, 2019
from the United States District Court for the District of
South Carolina, at Greenville. Timothy M. Cain, District
Deck Harrill, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Columbia, South Carolina, for Appellant.
Elizabeth Jeanne Howard, OFFICE OF THE UNITED STATES
ATTORNEY, Greenville, North Carolina, for Appellee.
A. Lydon, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
WILKINSON, NIEMEYER, and KING, Circuit Judges.
WILKINSON, CIRCUIT JUDGE
Carver entered a guilty plea in 2016 on two counts:
possession of at least fifteen access devices with intent to
defraud and possession of device-making equipment with intent
to defraud. Later, in 2017, he pled guilty to an Information
alleging aggravated identity theft. In this appeal, Carver
challenges the validity of the latter guilty plea. He also
challenges various aspects of sentencing for the first two
counts, including the calculated amount of loss, the number
of victims, and the district court's refusal to grant him
an acceptance of responsibility reduction. For the following
reasons, we affirm.
happens in Vegas may stay in Vegas, but during John
Emmert's visit there in 2015 he learned he was somehow
also staying in Greenville, South Carolina-or at least, his
credit card was. Alarmed, he called the hotel, and hotel
staff called the police. After a little detective work,
officers Jeffrey Long and Mike Dean obtained a warrant and
searched the room that Emmert had purportedly used his credit
card to pay for. Keith Carver and Haidee Gillespie were
inside, as well as an encoder machine (also called an
"overwriter"), driver's licenses in various
names, banking paperwork, more than fifty gift and credit
cards under various names, drug paraphernalia, and a laptop
computer. Later, Carolyn Root, a recent burglary victim,
identified the laptop and some cards and paperwork as hers.
The officers arrested Carver. A grand jury indicted him on
three counts, and in September 2016, he pled guilty to two
counts: possession of at least fifteen access devices with
intent to defraud in violation of 18 U.S.C. § 1029(a)(2)
and (3), and possession of device-making equipment with
intent to defraud, in violation of 18 U.S.C. §
1029(a)(2) and (4).
initially planned to go to trial on a third count for
aggravated identity theft under 18 U.S.C. § 1028A. Upon
reflection, and after learning that going to trial could
affect his prospects for an offense level reduction for
acceptance of responsibility, Carver pled guilty to an
Information alleging aggravated identity theft (the only
difference between the Information and Count 3 of the
indictment being the name of the victim).
Presentence Investigation Report calculated a base offense
level of six for Counts 1 and 2. Because the offense involved
the use of device-making equipment, the PSR added two levels
under United States Sentencing Guidelines Manual §
2B1.1(b)(11)(A)(i). In addition, the PSR recommended a
four-level enhancement because the amount of loss was between
$15, 000 and $40, 000 under U.S.S.G. § 2B1.1(b)(1)(C).
The amount of loss figure was calculated under U.S.S.G.
§ 2B1.1 cmt. n.3(F)(i), which instructs that the loss
per access device is always at least $500. Relying on this,
the PSR multiplied the number of cards found during the
search of Carver's room (fifty-three) by $500, then added
the amounts which were more than $500 that were charged on
two devices ($540 and $1, 342). The total was $28, 382. The
PSR next concluded the offense involved twenty-seven victims;
because this number exceeds ten, that conclusion increased
Carver's offense level by ...