United States v. Christopher Miller

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 24-2199

UNITED STATES OF AMERICA,

v.

CHRISTOPHER MILLER,

Appellant

_____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(District Court No.: 3:23-cr-00095-001)

District Judge: Honorable Julia K. Munley

_____________________________________

Argued December 10, 2025

(Filed April 3, 2026)

Before: PHIPPS, ROTH, and RENDELL, Circuit Judges.

Christopher R. Opiel, Esq. [ARGUED]

OPIEL LAW

88 North Franklin Street

Wilkes-Barre, Pennsylvania 18701

Counsel for Appellant

Christian T. Haugsby [ARGUED]

Carlo D. Marchioli

OFFICE OF UNITED STATES ATTORNEY

MIDDLE DISTRICT OF PENNSYLVANIA

1501 N. 6th Street

Harrisburg, PA 17102

Counsel for Appellees

_________

OPINION OF THE COURT

_________

RENDELL, Circuit Judge.

Christopher Miller appeals his sentence for bank fraud,

aggravated identity theft, and unlawful monetary transactions.

He argues the District Court erred in concluding that Kelly

Moran and Robert Reynolds—respectively, Miller’s wife and

neighbor—were “participants” and thus erred in applying the

four-level enhancement under U.S.S.G. § 3B1.1(a) for

organizing or leading “criminal activity that involved five or

more participants or was otherwise extensive.” In applying the

enhancement, the District Court relied on the three-step inquiry

we adopted in United States v. Helbling to conclude that the

sum of the three participants and thirteen non-participants was

the functional equivalent of five participants and thus satisfied

the “otherwise extensive” prong. 209 F.3d 226 (3d Cir. 2000).

Helbling relied on the Sentencing Guidelines’ commentary in

developing the three-step inquiry. Under our precedent,

however, courts may consider commentary only when the text

of a particular Guideline is genuinely ambiguous. United States

2

v. Nasir, 17 F.4th 459, 471 (3d Cir. 2021) (en banc). The District

Court erred in not following this analysis, but as we explain

below, the District Court would have reached the same

conclusion if it had conducted the Nasir analysis before

deferring to the commentary and Helbling test. Therefore, the

legal error was harmless. See generally Fed. R. Crim.

P. 52(a) (“Any error, defect, irregularity, or variance that does

not affect substantial rights must be disregarded.”).

Accordingly, we will affirm Miller’s sentence.

I. BACKGROUND

Between April 2020 and September 2021, Miller

defrauded over $2 million from the Paycheck Protection

Program, the Economic Injury Disaster Loan program, and the

Pandemic Unemployment Assistance program. Miller filed

dozens of fraudulent loan applications on behalf of himself, his

corporate entities, his wife, his neighbor, and at least thirteen

other family members and associates. These family members

and associates provided Miller with their personal information

to fill out the applications, and upon receiving the fraudulent

funds, they paid Miller kickbacks.

The District Court found that the role played by Miller’s

wife, Kelly Moran, and his neighbor, Robert Reynolds,

exceeded the involvement of Miller’s other family members

and associates. Moran not only provided Miller with her

personal information and received fraudulent funds, but she

also called a lender to verify her personal information and

check the status of an application. Further, after the FBI

executed a search warrant on their home and issued a target

letter, Moran willingly fled to South Carolina with Miller,

where she lived with him for over a year while he used a fake

3

name. Also, many of those who were involved to a lesser

degree were Moran’s family members. Reynolds—in addition

to supplying Miller with his personal information and paying

Miller nearly $15,000 in kickbacks—sat in Miller’s home to

have his photo taken for use in a fraudulent loan application.

He later pleaded guilty to wire fraud for his participation in

Miller’s scheme.

Fifty-four charges were brought against Miller for wire

fraud, bank fraud, false loan applications, false statements to

the Small Business Administration, aggravated identity theft,

and unlawful monetary transactions. Miller accepted a plea

deal and pleaded guilty to one count of bank fraud, one count

of aggravated identity theft, and one count of unlawful

monetary transactions. The final Presentence Investigation

Report (“PSR”) calculated Miller’s criminal history score to be

seven, placing him in criminal history category IV. The PSR

calculated Miller’s total adjusted offense level to be twenty-

seven, which included the four-level leadership enhancement

under U.S.S.G. § 3B1.1(a). Miller was also subject to a two-

year consecutive mandatory sentence for the count of

aggravated identity theft, yielding an advisory Guideline range

of 124 to 149 months’ imprisonment.

Miller objected to the PSR’s calculations on two

grounds. First, Miller objected to the application of the four-

level leadership enhancement pursuant to U.S.S.G. § 3B1.1(a).

Specifically, Miller argued he was not the leader of “otherwise

extensive” criminal conduct because Moran and Reynolds

were not “participants” in Miller’s scheme. Miller also

objected to the PSR’s calculation of his criminal history score.

The District Court overruled both of Miller’s objections,

4

adopted the PSR’s findings, and sentenced Miller to 149

months’ imprisonment.

Miller appealed, challenging only whether the District

Court erred in applying the four-level leadership enhancement

pursuant to U.S.S.G. § 3B1.1(a) by incorrectly categorizing

Moran and Reynolds as “participants” in Miller’s scheme.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had subject matter jurisdiction

pursuant to 18 U.S.C. § 3231. This Court has jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

We review the District Court’s interpretation of the

Sentencing Guidelines de novo. United States v. McIntosh, 124

F.4th 199, 205 (3d Cir. 2024). We review the District Court’s

factual findings in support of the enhancement under the clear

error standard. See United States v. Adair, 38 F.4th 341, 347

(3d Cir. 2022) (citing United States v. Huynh, 884 F.3d 160,

165 (3d Cir. 2018)).

III. DISCUSSION

For many years, we treated the Sentencing

Commission’s commentary as authoritative and gave it

controlling weight unless it was “inconsistent with, or a plainly

erroneous reading of, that [G]uideline.” United States v. Metro,

882 F.3d 431, 437 (3d Cir. 2018) (quoting Stinson v. United

States, 508 U.S. 36, 38 (1993)). However, in Kisor v. Wilkie,

588 U.S. 558, 573 (2019), the Supreme Court held that courts

should defer to agency interpretations of their own regulations

only where the regulation is genuinely ambiguous. Thereafter

5

we applied that holding in United States v. Nasir, 17 F.4th 459,

471 (3d Cir. 2021), and announced a three-step test to decide

whether to consult and defer to a particular provision of the

Sentencing Guidelines commentary. First, we ask whether the

Guideline is “genuinely ambiguous” after “carefully

consider[ing] the text, structure, history, and purpose.” Id.

(quoting Kisor, 588 U.S. at 575 (internal quotation marks

omitted)). If it is not, our inquiry ends, and we apply the plain

text of the Guideline. Id. If it is genuinely ambiguous, we

proceed to step two and ask if the commentary is “reasonable,”

id., meaning the commentary “clarif[ies] the ambiguity”

identified in step one without “chang[ing] the meaning of the

text,” United States v. Chandler, 104 F.4th 445, 450 (3d Cir.

2024), or said differently, that the commentary is within “the

outer bounds of permissible interpretation.” Nasir, 17 F.4th at

471 (quoting Kisor, 588 U.S. at 576). If the commentary is

reasonable, we proceed to step three and consider “whether the

character and context of the agency interpretation entitles it to

controlling weight.” Id. (quoting Kisor, 588 U.S. at 576). If the

commentary’s interpretation “implicate[s] [the Commission’s]

substantive expertise[,]” “reflect[s] fair and considered

judgment,” and is the agency’s “official position,” it is entitled

to controlling weight, and we will defer to it. Id. (quoting

Kisor, 588 U.S. at 577, 579).

Miller challenges the District Court’s application of

Guideline § 3B1.1(a), which permits a four-level enhancement

“[i]f the defendant was an organizer or leader of a criminal

activity that involved five or more participants or was

otherwise extensive.” U.S.S.G. § 3B1.1(a). Miller does not

challenge the District Court’s ruling that he was an organizer

or leader, so our inquiry focuses on whether “otherwise

6

extensive” is genuinely ambiguous.1 Before Kisor and Nasir,

we had interpreted the “otherwise extensive” prong of

Guideline § 3B1.1(a) at issue here. See United States v.

Helbling, 209 F.3d 226 (3d Cir. 2000). In Helbling, we deferred

to the Commission’s interpretative commentary in defining

“participant” and “otherwise extensive” when establishing the

test to determine what qualifies as “otherwise extensive.” Id. at

244–45 (citing U.S.S.G. § 3B1.1, Application Note 1 (defining

“participant”), U.S.S.G. § 3B1.1, Application Note 3 (stating

that “all persons involved during the course of the entire

offense are to be considered” when determining whether the

activity was “otherwise extensive”)). Because in Helbling we

deferred to the commentary without considering whether

“otherwise extensive” was ambiguous, after Kisor and Nasir,

we must reverse course and consider whether that phrase is

“genuinely ambiguous.”

A. The Guideline is Genuinely Ambiguous

For step one, we must apply the standard tools of

statutory interpretation, which include the dictionary

definitions of words and phrases that are contemporaneous

with the promulgation of the Guideline. See Chandler, 104

F.4th at 451. To begin, we note Miller’s argument that this

Court already found this provision as unambiguous in Adair is

incorrect. Rather, Adair dealt with the “organizer or leader”

prong of Guideline § 3B1.1(a), and its conclusion that

“organizer” and “leader” are not genuinely ambiguous does not

control whether “otherwise extensive” is genuinely

ambiguous. 38 F.4th at 354.

1

There is no contention that there were five or more

participants.

7

Turning to dictionaries in use at the time of the

Guideline’s promulgation, Black’s Law Dictionary defines

“otherwise” to mean “[i]n a different manner; in another way,

or in other ways.” Otherwise, Black’s Law Dictionary (6th ed.

1990); see also Otherwise, Black’s Law Dictionary (5th ed.

1979). Black’s Law Dictionary defines “extensive” to mean

“[w]idely extended in space, time, or scope; great or wide or

capable of being extended.” Extensive, Black’s Law Dictionary

(6th ed. 1990); see also Extensive, Black’s Law Dictionary (5th

ed. 1979). These dictionary definitions do not resolve what

Guideline § 3B1.1(a) means by “otherwise extensive.”

The standard tools of statutory interpretation also

include an analysis of other textual aspects. See, e.g., Adair, 38

F.4th at 351 (“Other textual aspects of [U.S.S.G.] § 3B1.1(a)

illuminate the meaning of ‘organizer’ and ‘leader.’”). Here,

“otherwise extensive”—like “involved five or more

participants”—modifies “criminal activity.” These modifying

phrases are joined by the conjunction “or,” “which most

commonly functions to indicate either an alternative between

different or unlike things, states, or actions or a choice between

alternative things, states, or courses.” Id. (footnotes omitted).

But “or” can also have a different meaning—it can indicate

“the synonymous, equivalent, or substitutive character of two

words or phrases,” or even a “correction or greater exactness

of phrasing or meaning.” Id. at 351–52 (internal quotations and

citations omitted); see Honig v. Doe, 484 U.S. 305, 334 (1988)

(Scalia, J., dissenting) (identifying the multiple common

definitions of the term “or”). Accordingly, to understand

“otherwise extensive” requires an understanding of the

comparator—here, “five or more participants.”

8

Miller argues if the “otherwise extensive” prong could

be satisfied by leadership over “a handful of participants, the

five (5) participant threshold set out at the beginning of the

[G]uideline[] would lose meaning.” Miller Supp. Br. at 7. But

we draw the opposite conclusion. To read “otherwise

extensive” as requiring the exact thing as the initial “five or

more participants” prong would render the phrase entirely

superfluous. See Honig, 484 U.S. at 334 (“That is rather like a

statute giving the vote to persons who are ‘18 or 21.’”); see

also Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d

199, 210 (3d Cir. 2008) (the Court must presume that “every

word in a statute has meaning and avoid interpreting one part

of a statute in a manner that renders another part superfluous”)

(citing Rosenberg v. XM Ventures, 274 F.3d 137, 141–42 (3d

Cir. 2008)). However, neither the dictionary definitions nor our

standard tools of statutory interpretation clarify whether

“otherwise extensive” is restricted to the number of individuals

involved in the criminal activity or may include other indicia

of a criminal activity’s extensiveness such as the magnitude of

the harm, the complexity of the planning, or the number of

victims.

The dictionary definitions of “participant” do not clarify

the ambiguity either. Merriam-Webster defines “participant” as

“one that participates,” and to “participate” as “to possess

something of the nature of a person, thing, or quality,” “to take

part,” or “to have a part or share in something.” Participant,

Merriam-Webster’s Collegiate Dictionary (9th ed. 1983);

Participate, Merriam-Webster’s Collegiate Dictionary (9th ed.

1983). For instance, the meaning of “participant” can be

completely changed by the use of the modifier “willing” or

“unwitting,” suggesting that “participant” is genuinely

ambiguous as well. See, e.g., United States v. Barbosa, 271

9

F.3d 438, 470 (3d Cir. 2001) (record showed that appellant was

“apparently a willing participant in the operation to smuggle

drugs to Philadelphia from Aruba” as opposed to the “classic

example of a courier . . . who was enticed, coerced, or exploited

by an affluent, sophisticated drug dealer”) (emphasis added);

United States v. Flores Perez, 849 F.2d 1, 2 (1st Cir. 1988)

(appellant argued the evidence was insufficient to prove “he

was anything more than an unwitting participant who was

caught in the wrong place at the wrong time”) (emphasis

added).

The Commission identified the purpose for the

enhancement in the background commentary for Guideline

§ 3B1.1, which we may consider without going through the

Kisor process,2 as follows:

This section provides a range of adjustments to

increase the offense level based upon the size of

the criminal organization (i.e., the number of

participants in the offense) and the degree to

which the defendant was responsible for

committing the offense . . . . The Commission’s

intent is that this adjustment should increase with

both the size of the organization and the degree

of the defendant’s responsibility.

2

See Adair, 38 F.4th at 347–48 (“The paradigm applies only to

the Commission’s interpretive commentary, not its

commentary related to either background information or

circumstances that may warrant a departure from a

[G]uideline.”).

10

U.S.S.G. § 3B1.1, Background (emphasis added). The

background commentary also explains why the size of the

criminal activity is important to the purpose of the provision,

noting that the Sentencing Commission drafted the Guideline’s

separate provisions to respond to criminal organizations whose

size and structure increases the significance of the defendant’s

role. Compare U.S.S.G. § 3B1.1(a)–(b), with § 3B1.1(c).

Our precedent also supports a finding of ambiguity. In

Helbling, we recognized that although “otherwise extensive”

appeared to be a “seemingly simple phrase,” it had “spawned

much discussion, and some disagreement, in the opinions of

several courts of appeals.” Helbling, 209 F.3d at 244. Whereas

the Second Circuit—whose test we adopted in Helbling—

limited the focus to the headcount of individuals involved,

other circuits permit a broader consideration of other indicia of

extensiveness including the breadth, scope, complexity,

geographical reach, and duration of the scheme. Id. (citing

United States v. Carrozzella, 105 F.3d 796, 802–03 (2d Cir.

1997); United States v. Dietz, 950 F.2d 50, 53–54 (1st Cir.

1991)). This circuit split further supports a finding of

ambiguity.

Moreover, two former Justices referred to the provision

as an example of a “highly complex or open-ended Sentencing

Guidelines [provision]” that was “obviously written for

application by an experienced trial judge,” highlighting the

phrase “otherwise extensive.” Blakely v. Washington, 542 U.S.

296, 346–47 (2004) (Breyer, J., dissenting, joined by

O’Connor, J.).

The history of Guideline § 3B1.1 does little to clarify

the meaning of “otherwise extensive.” The Commission has

11

only made one non-substantive amendment to § 3B1.1 since

promulgating the Guideline in 1987. See U.S.S.G. App. C

Amend. 831 (Nov. 1, 2024) (inserting the word “subsection” in

§ 3B1.1(c)). Accordingly, the history of § 3B1.1 also supports

a finding of ambiguity.

In sum, the text of § 3B1.1 is ambiguous, and the

purpose, history, and precedent relating to the Guideline only

confirm that ambiguity.

B. Reasonableness of the Commentary

For commentary to be reasonable, it must not

“improperly expand[ ] the Guideline,” United States v. Banks,

55 F.4th 246, 253 (3d Cir. 2022), and must remain within “the

outer bounds of permissible interpretation,” Nasir, 17 F.4th at

471 (citation omitted). The commentary here does exactly that.

The commentary directs the court to consider “all persons

involved during the course of the entire offense” when

assessing whether an organization is “otherwise extensive.”

U.S.S.G. § 3B1.1, Application Note 3. It states that “a fraud

that involved only three participants but used the unknowing

services of many outsiders could be considered extensive.” Id.

This does not expand the Guideline but rather narrows the

focus of the inquiry upon the number and roles of the

individuals knowingly, and unknowingly, involved. Cf. Banks,

55 F.4th at 258 (declining to defer to the commentary when it

expands the definition). Other circuits interpret “otherwise

extensive” to allow sentencing courts to consider other factors

like geographic scope, the reach of the criminal activity, drug

weight, and economic loss. See United States v. Figueroa, 682

F.3d 694, 695–96 (7th Cir. 2012); United States v. Dietz, 950

F.2d 50, 53 (1st Cir. 1991) (affirming district court’s finding

12

that the defendant’s criminal activities were “sufficiently

panoramic” to justify the increase); United States v. Vasquez-

Rubio, 296 F.3d 726, 729 n.3 (8th Cir. 2002) (finding “the

nature and complexity of the operation and its geographical

reach” are also factors that can support a finding that criminal

activity was “otherwise extensive”). By comparison, the

commentary offers a narrower inquiry focused on the

headcount of individuals involved. Accordingly, the

commentary’s direction of what to consider can hardly be said

to expand the text.

The commentary’s definition of “participant” also falls

within the outer bounds of permissible interpretation. The

commentary defines “participant” as “a person who is

criminally responsible for the commission of the offense, but

need not have been convicted.” U.S.S.G. § 3B1.1, Application

Note 1. This definition narrows “participant” from its

dictionary definition and thus is reasonable.

C. Entitlement to Controlling Weight

As the last step of the Nasir process, we consider

“whether the character and context of the agency interpretation

entitles it to controlling weight,” Nasir, 17 F.4th at 471, since

“[s]ome interpretative issues may fall more naturally into a

judge’s bailiwick.” Kisor, 588 U.S. at 578. As guideposts, the

Supreme Court in Kisor identified three character-and-context

circumstances in which an agency’s otherwise reasonable

interpretation should not receive controlling weight. See id.

at 576–79. Those occur when an agency’s interpretation is not

its “‘authoritative’ or ‘official position,’” id. at 577, when the

agency’s interpretation does not implicate its “substantive

expertise” in some way, id., and when the agency’s reading

13

does not reflect its “fair and considered judgment” but rather is

a “convenient litigating position,” or a “post

hoc rationalization,” id. at 579.

The commentary here is entitled to controlling weight.

The Application Notes are the Commission’s official position

rather than an ad hoc pronouncement. See United States v.

Caraballo, 88 F.4th 239, 248 (3d Cir. 2023) (“First, the

Commentary’s definition is the Sentencing Commission’s

official position and not merely an ad hoc pronouncement.”).

Further, the commentary implicates the Commission’s

substantive expertise. One of the three principal purposes of

the Sentencing Commission is to “establish sentencing policies

and practices for the federal courts, including [G]uidelines to

be consulted regarding the appropriate form and severity of

punishment for offenders convicted of federal

crimes[.]” About, United States Sentencing Commission,

https://perma.cc/Y7YE-DEJR (last visited Dec. 11, 2025). The

Sentencing Guidelines are “core to the [Sentencing

Commission’s] mission” and “provide federal judges with fair

and consistent sentencing ranges to consult at sentencing,” in

part by “providing certainty and fairness in meeting the

purposes of sentencing by avoiding unwarranted disparity

among offenders with similar characteristics convicted of

similar criminal conduct, while permitting sufficient judicial

flexibility to consider relevant aggravating and mitigating

factors.” U.S. Sentencing Commission’s 2024 Annual Report,

United States Sentencing

Commission, https://perma.cc/7D4U-XUBF (last visited Dec.

11, 2025). The question of what impact the size of a

defendant’s criminal organization, or criminal activity that she

led, should have on a sentence is “squarely within the

Sentencing Commission’s bailiwick.” United States v.

14

Mercado, 81 F.4th 352, 360 (3d Cir. 2023) (internal quotations

and citation omitted). And finally, the commentary was not

instituted for any post hoc purpose but has been included since

1987, and thus reflects the Sentencing Commission’s “fair and

considered judgment.” Kisor, 588 U.S. at 579.

Accordingly, the commentary’s Application Notes

regarding “otherwise extensive” and “participant” are entitled

to deference.

D. The Continuation of the Helbling Test

Now permitted to defer to the commentary after

completing the Kisor analysis, we briefly consider whether the

way in which we analyzed the commentary in Helbling

remains the appropriate test for “otherwise extensive.” In

Helbling, we presciently noted the lack of clarity of the

“otherwise extensive” phrase and determined the meaning of

the commentary.3 In holding that “otherwise extensive”

required a headcount of the individuals involved, the Court

concluded that the “focus upon the number and roles of the

individuals knowingly, and unknowingly, involved best

comports with the text of § 3B1.1(a), its application notes and

commentary, as well as the overall structure of the Sentencing

3

In Adair, we identified Helbling as one of the pre-Kisor

decisions that had misinterpreted the “organizer or leader”

enhancement by deferring to the commentary instead of

engaging in the Kisor process. Adair, 38 F.4th at 350 n.4, n.5.

But that finding was limited to the interpretation of the words

“organizer” or “leader,” which was a separate analysis in

Helbling. See Helbling, 209 F.3d at 243 (deferring to the

Application Note without engaging in any textual analysis).

15

Guidelines.” Helbling, 209 F.3d at 245. We relied on the

commentary, which indicated that the “otherwise extensive”

inquiry should focus on the number of individuals involved. Id.

at 246. Moreover, constraining the “extensiveness” inquiry to

a head counting analysis “reduces the potential for double

counting certain aspects of criminal activity that are considered

elsewhere in the scheme of the [G]uidelines, thus helping to

maintain the distinct character of various [G]uideline

sections.” Id. For instance, Miller received a separate sixteen-

level enhancement due to the amount of intended loss and a

two-level enhancement because the offense involved

sophisticated means. U.S.S.G. §§ 2B1.1(b)(1)(I),

2B1.1(b)(10)(C).

The Court acknowledged that “[a]lthough Application

Note 3 supports our mode of analysis, the [G]uidelines are

silent as to how the sentencing court actually is to decide which

non-participants should be considered, and what combination

of participants and countable non-participants is the

‘equivalent’ of five participants.” Id. at 247. Helbling thus

adopted the Second Circuit’s three-step inquiry. First, the

sentencing court separates out the “participants,” as defined by

Application Note 1, from non-participants who were involved

in the criminal activity. The defendant may be considered as

one of the participants. Id. at 248. Next, the court determines

whether the defendant used each non-participants’ services

with specific criminal intent. Third, the court determines “the

extent to which the services of each individual, non-

participant, were peculiar and necessary to the criminal

scheme.” Id. After concluding which individuals may be

counted, the court “must then consider whether the sum of the

participants and countable non-participants is the functional

equivalent of five participants.” Id.

16

Deferring to the commentary, we again subscribe to this

three-step inquiry to determine whether the sum of participants

and countable non-participants is the functional equivalent of

five participants. As explained in Helbling, the three-step test

is supported by the text, the structure, and the purpose of the

Guideline and the commentary. A broader interpretation is not

supported by the commentary and risks double counting

certain aspects of criminal activity that are considered

elsewhere in the scheme of the Sentencing Guidelines.

E. The District Court Did Not Commit Clear Error

On appeal, Miller challenges only the District Court’s

classification of Kelly Moran and Robert Reynolds as

“participants” in the Helbling analysis. Applying the post-

Nasir understanding of § 3B1.1(a) and deferring to the

commentary and Helbling analysis to the District Court’s

factual findings, which are not clearly erroneous, reveals that

Miller qualified for the leadership enhancement. See Anderson

v. City of Bessemer City, 470 U.S. 564, 573–74

(1985) (explaining that clear error requires a “definite and firm

conviction that a mistake has been committed.” (citation

omitted)).

The District Court determined that there were three

participants: Miller, Reynolds, and Moran. The Court found

that Reynolds was an “integral part of the scheme” and “pled

guilty to his participation in the scheme.” App. 230. Miller

urges that Reynolds is indistinguishable from the other thirteen

non-participants who provided Miller with their personal

information and transferred kickbacks to Miller. But as the

District Court explained, Reynolds pleaded guilty to wire fraud

17

for the conduct he undertook jointly with Miller. The District

Court did not err in characterizing Reynolds as a participant.

The Court also considered Moran’s conduct. She called

a lender, applications were filed on behalf of her family

members, she personally received monetary benefits from the

scheme, and she fled Pennsylvania with Miller after he

received a target letter and lived with Miller out of state while

he used a fake name for a year. Miller argues that Moran was

not a participant because there is no evidence that she drafted

or submitted any fraudulent loan applications herself and

characterizes Moran’s call to the PPP lender as “an act of

curiosity or follow-up.” Opening Br. at 14. In attempting to

analogize Moran to non-participants in Helbling, Miller would

have us draw parallels between actors in different factual

settings, essentially between apples and oranges. The

comparison of an individual’s factual involvement in one case

to another individual’s factual involvement in another case is

difficult at best. Each instance must rise and fall on its own

facts.4 Here, the District Court did not clearly err in concluding

that Moran was criminally culpable for her role in Miller’s

scheme. Moran personally called a lender to check the status

of the fraudulent loan application, and she fled with Miller after

he received a target letter. Moreover, several of the individuals

for whom Miller filed fraudulent applications were Moran’s

family members. These facts support the District Court’s

conclusion that Moran was a participant in Miller’s criminal

4

Moreover, Helbling contested the district court’s

determination that six people were countable non-participants.

Helbling, 209 F.3d at 248. Here, Miller challenges the District

Court’s determination that two people are participants—a

different issue.

18

activity, and thus, the District Court did not clearly err in

categorizing her as a participant.

Next, the District Court found Miller used the

participants and non-participants’ services with specific

criminal intent. The thirteen non-participants, Reynolds, and

Moran supplied the information but for which Miller could not

have committed the crime. The District Court also determined

the services of the non-participants were peculiar and

necessary to the criminal scheme, because Miller used the non-

participants’ information to complete the fraudulent

applications. Finally, the District Court concluded the three

participants plus the non-participants met the functional

equivalent of five participants and overruled Miller’s objection

to the enhancement. The District Court did not clearly err in so

finding.

IV. CONCLUSION

In light of the above, we will affirm the District Court’s

judgment of sentence.

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