United States v. Carver (P)

In the appellant’s conviction and sentencing for identity theft offenses, the trial court did not err in accepting the appellant’s guilty plea or in its sentencing analysis.

The appellant’s challenges on appeal to his plea colloquy are insubstantial, and none comes close to meeting a plain error standard. As to sentencing, he raises three arguments: first, that the amount of loss caused by his criminal actions was miscalculated; second that the number of victims was overstated, and third that the court erroneously refused to reduce his offense level in light of his acceptance of responsibility. Each contention is without merit.

In United States v. Onyesoh (2012), the Ninth Circuit held that a card is not an access device if it is not functional. This court declines to adopt this “usability” standard. Congress, mindful of the need to “encompass future technological changes,” wrote broadly to include any device of the general sort that people use to get money. Even if a fraudulently altered card could not complete a transaction now, it is the type of thing that could do so, and was altered for precisely that purpose. Reading the phrase “can be used” in this way is consonant with including expired, revoked, or canceled devices in the definition of “unauthorized access device.”

Affirmed.

United States v. Carver (P), No. 18-4153, Feb. 26, 2019. 4th Cir. (Wilkinson) from DSC at Greenville (Cain).



Categories: 4th U.S. Circuit Court of Appeals, Opinions, Published

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