# United States v. Xavier Taylor

> Court of Appeals for the Eleventh Circuit · March 28, 2016 · 818 F.3d 671

URL: https://www.frixlaw.com/law-library/cases/3189205

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Xavier TAYLOR, Defendant-Appellant
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** March 28, 2016
- **Citations:** 818 F.3d 671; 2016 WL 1179745
- **Precedential status:** Published
- **Opinion:** Opinion by Wilson
- **Judges:** Wilson, Carnes, Ebel
- **Nature of suit:** NEW
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3189205

## Opinion text

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 14-13288
________________________

D.C. Docket No. 0:14-cr-60009-JIC-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

XAVIER TAYLOR,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(March 28, 2016)

Before WILSON, JULIE CARNES, and EBEL, ∗ Circuit Judges.

∗
Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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WILSON, Circuit Judge:

Defendant-appellant Xavier Taylor used stolen identity information to add

himself as an authorized user to other individuals’ pre-existing credit card accounts

and open new accounts in the names of stolen identities, causing banks to create

new credit cards that included him as an authorized user. For this conduct, he was

charged with and pleaded guilty to one count of trafficking in unauthorized access

devices,1 in violation of 18 U.S.C. § 1029(a)(2), and one count of aggravated

identity theft, in violation of 18 U.S.C. § 1028A(a)(1). At sentencing, the district

court applied a two-level production enhancement pursuant to § 2B1.1 of the

United States Sentencing Guidelines (the Guidelines) to the § 1029(a) conviction

and sentenced Taylor to a total of sixty-one months’ imprisonment. This appeal

followed, in which Taylor argues that interrelated provisions of the Guidelines

preclude application of the production enhancement to his sentence.

Specifically, Taylor contends that he does not qualify for the § 2B1.1

production enhancement to his § 1029(a) conviction because a different provision

of the Guidelines—§ 2B1.6—prohibits this enhancement for defendants who, like

him, were also convicted under § 1028A. Taylor also avers that, even if the

enhancement can apply in a § 1028A case, he did not “produce” unauthorized

1
An unauthorized access device is “any access device that is . . . obtained with intent to
defraud.” 18 U.S.C. § 1029(e)(3); U.S.S.G. § 2B1.1 cmt. n.10(A). Unauthorized credit cards are
unauthorized access devices. See United States v. Klopf, 423 F.3d 1228, 1239–40 (11th Cir.
2005).
2
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access devices given that an innocent third party (the banks, not Taylor or a

criminal coconspirator) created the credit cards. We have not yet addressed these

issues in a published opinion.

After thorough consideration, we conclude that § 2B1.6 of the Guidelines

does not prevent application of a § 2B1.1 production enhancement to a sentence

imposed in conjunction with a § 1028A conviction when the underlying conduct at

issue involves “production,” rather than conduct limited to “transfer, possession, or

use.” We also hold that willfully causing an innocent third party to produce a

fraudulent credit card qualifies as “production” under the Guidelines.

Accordingly, we affirm the district court.

I. Background

Using stolen identities, Taylor contacted banks, gained access to credit card

accounts, and added himself as an authorized user of the accounts. The banks

issued new credit cards associated with those accounts. All of the credit cards the

banks issued exhibited the account numbers of the people whose identities Taylor

had stolen, and some of the credit cards were even issued in Taylor’s name. Upon

receiving the credit cards, Taylor activated them by telephone and began making

unauthorized purchases totaling several thousand dollars.

Agents from the United States Secret Service eventually obtained and

executed a search warrant for Taylor’s home. The search revealed approximately

3
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thirty-three credit cards linked to the accounts of Taylor’s victims. Taylor was

arrested and charged with five counts of access device fraud. Subsequently, Taylor

entered into a written plea agreement with the government. In exchange for

favorable sentencing considerations, Taylor agreed to plead guilty to one count of

trafficking in unauthorized access devices and one count of aggravated identity

theft in satisfaction of all five counts.

At sentencing, Taylor received several enhancements to his base offense

level, one of which was a two-level enhancement for an offense involving the

production of an unauthorized access device. See U.S.S.G. § 2B1.1(b)(11)(B)(i).

Taylor objected to the imposition of this enhancement. Following a sentencing

hearing, the district court overruled Taylor’s objection and, after considering the

advisory sentencing range of thirty-seven to forty-six months, imposed a thirty-

seven month sentence for the § 1029(a) conviction, followed by a consecutive

mandatory twenty-four month sentence for the § 1028A(a)(1) conviction, for a

total sixty-one month term of imprisonment.

II. Standard of Review

“We review a district court’s legal conclusions regarding the Sentencing

Guidelines de novo, and its factual findings for clear error.” United States v. Cruz,

713 F.3d 600, 605 (11th Cir. 2013). Questions of statutory or Guidelines

4
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interpretation receive de novo review. See United States v. Krawczak, 331 F.3d

1302, 1305 (11th Cir. 2003).

III. Discussion

On appeal, Taylor contends that the district court erroneously applied the

two-level enhancement pursuant to § 2B1.1(b)(11)(B)(i) for production of an

unauthorized access device (the production enhancement). Our resolution of

Taylor’s appeal requires us to answer two legal questions. First, does a

defendant’s conviction for aggravated identity theft under 18 U.S.C. § 1028A

preclude application of a production enhancement to the defendant’s sentence,

irrespective of the conduct involved? Second, does causing an unauthorized access

device to be produced by an innocent third party constitute “production” under the

Guidelines? We find that the answer to the first question is no, while the answer to

the second question is yes. We address each legal issue in turn and then apply our

conclusions to Taylor’s conduct.

A. Application of a Production Enhancement Despite a Conviction Under
18 U.S.C. § 1028A

As a threshold matter, we must determine whether a district court may apply

a production enhancement under § 2B1.1(b)(11)(B)(i) of the Guidelines when, as

here, the defendant has been convicted under both 18 U.S.C. § 1029(a) and

§ 1028A. By way of background, the advisory sentencing range for a § 1029(a)

conviction is calculated pursuant to the Sentencing Guidelines. In contrast, the

5
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Guidelines are not a factor in determining the sentence for a conviction under §

1028A(a)(1) because conviction for this latter offense results in a mandatory,

consecutive two-year term of imprisonment. See § 1028A(b). Yet, a conviction

under § 1028A can nonetheless impact the calculation of the Guidelines for a

§ 1029(a) conviction because § 2B1.6 potentially precludes application of the

§ 2B1.1(b)(11) production enhancement for a § 1029(a) conviction when the

defendant has also been convicted of § 1028A.

In pertinent part, § 2B1.1(b)(11) of the Guidelines provides a two-level

sentencing enhancement if the offense involved:

(A) the possession or use of any (i) device-making
equipment, or (ii) authentication feature;
(B) the production or trafficking of any (i) unauthorized
access device or counterfeit access device, or (ii)
authentication feature. 2

However, the text of § 2B1.6 of the Guidelines limits the application of sentencing

enhancements to an offense in the context of 18 U.S.C. § 1028A convictions.

Section 2B1.6 provides: “If the defendant was convicted of violating 18 U.S.C. §

1028A, the guideline sentence is the term of imprisonment required by statute.”

The Application Notes to § 2B1.6 explain that that legal provision prohibits

enhancements of offense levels when the enhancement relates to the “transfer,

2
Opinions filed prior to 2011 refer to this section as § 2B1.1(b)(10); the section was
redesignated as § 2B1.1(b)(11) in 2011 without substantive change. See U.S.S.G. app. C,
amend. 749; Cruz, 713 F.3d at 602 n.1.
6
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possession, or use” of a means of identification.3 See U.S.S.G. § 2B1.6 cmt. n.2.

This limitation is particularly relevant to § 2B1.1 because “means of identification”

may include access devices.4 See 18 U.S.C. § 1028(d)(7)(C), (D).

Section 2B1.6 is designed to prevent a defendant from being doubly

penalized for the same conduct. Under § 1028A, a defendant receives a mandatory

consecutive two-year term of imprisonment if convicted of certain predicate crimes

(like fraud) and if, during the commission of those predicate crimes, the defendant

“knowingly transfers, possesses, or uses, without lawful authority, a means of

identification of another person.” See 18 U.S.C. § 1028A(a)(1). Accordingly, a

defendant convicted under § 1028A automatically receives an additional two-year

increase to his or her sentence for transferring, possessing, or using a means of

identification of another. Section 2B1.6 proscribes any enhancement of the offense

level for a separate conviction for the underlying offense based on those acts.

3
The pertinent commentary provides, in full:

Inapplicability of Chapter Two Enhancement.—If a sentence under
this guideline is imposed in conjunction with a sentence for an
underlying offense, do not apply any specific offense characteristic
for the transfer, possession, or use of a means of identification
when determining the sentence for the underlying offense. A
sentence under this guideline accounts for this factor for the
underlying offense of conviction, including any such enhancement
that would apply based on conduct for which the defendant is
accountable under 1B1.3 . . . .

U.S.S.G. § 2B1.6 cmt. n.2. (emphasis added).
4
For this reason, we use “access device” and “means of identification” interchangeably.
7
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In considering these provisions in a prior opinion, we held that § 2B1.6 does

not bar all sentencing enhancements for defendants convicted under § 1028A

because not all conduct under § 1028A involves merely transferring, possessing, or

using a means of identification of another. Cruz, 713 F.3d at 606–07; accord

United States v. Jenkins-Watts, 574 F.3d 950, 961–62 (8th Cir. 2009); United

States v. Sharapka, 526 F.3d 58, 62 (1st Cir. 2008). Section 2B1.6’s limitation on

sentencing enhancements exists solely as to the application of enhancements for

the same conduct already “enhanced” under § 1028A itself: transfer, possession, or

use of a means of identification of another. See Cruz, 713 F.3d at 606–07. Thus, if

the defendant’s underlying conduct is limited to transfer, possession, or use of a

means of identification of another, then the enhancement cannot apply; if the

conduct is different than or in addition to such transfer, possession, or use, then the

enhancement can apply.

We have directly applied this principle to subsection (A) of § 2B1.1(b)(11),

holding that use of device-making equipment is conduct different than the transfer,

possession, or use of a means of identification covered under § 1028A. See id. at

605–07. In contrast, when considering subsection (B) of § 2B1.1(b)(11), which is

relevant here, we have held that “trafficking” an unauthorized access device is a

form of conduct fully encompassed within transfer, possession, or use of a means

of identification. See United States v. Charles, 757 F.3d 1222, 1226–27 (11th Cir.

8
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2014). Specifically, we found that “trafficking” such a device covered the same

conduct as “transferring” the device. See id. at 1227. Therefore, per § 2B1.6, we

held that a § 2B1.1(b)(11)(B)(i) enhancement premised on trafficking could not be

applied. See id.; accord United States v. Doss, 741 F.3d 763, 767–68 (7th Cir.

2013). We also noted in a footnote that § 2B1.6 may not preclude an enhancement

based on the “production” of an unauthorized access device, but we “express[ed]

no opinion about ‘production’ and remand[ed] with directions that the district court

rule on the ‘production’ issue [in the first instance] and give reasons why.” See

Charles, 757 F.3d at 1227 & n.3.

Therefore, we have read the language in § 2B1.1(b)(11)(B) as providing two

separate bases for an enhanced sentence—(1) production or (2) trafficking—and

we have held that § 2B1.6 precludes enhancement in § 1028A cases for conduct

premised on § 2B1.1(b)(11)(B)’s trafficking prong.5 See id. at 1227. Today, with

the benefit of briefing and oral argument, we reach the issue of whether an

5
There is no binding precedent in this circuit pertaining to whether “production” is
conduct different than the conduct encompassed by § 1028A. While we have affirmed
§ 2B1.1(b)(11)(B) production enhancements in two published opinions where the defendants
were convicted under, inter alia, § 1028A, we did so without addressing the limiting language in
§ 2B1.6. See United States v. Baldwin, 774 F.3d 711, 728, 730 n.1 (11th Cir. 2014) (declining to
consider the § 2B1.6 argument because the defendant “failed to present th[e] argument to the
district court or raise it in his opening brief”), cert. denied, 135 S. Ct. 1882 (2015); United States
v. Barrington, 648 F.3d 1178, 1203 (11th Cir. 2011) (making no reference to § 2B1.6).
Additionally, the various unpublished opinions the parties cite have no precedential value.
Moore v. Barnhart, 405 F.3d 1208, 1211 n.3 (11th Cir. 2005) (per curiam) (citing 11th Cir. R.
36–2).
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enhancement for conduct premised on the production prong may apply in § 1028A

cases.

As indicated above, § 2B1.6 permits an offense-level enhancement when a

defendant’s criminal activity involved conduct that is separate from or in addition

to the simple transfer, possession, or use of the means of identification at issue.

See id.; cf. Cruz, 713 F.3d at 607. Based on our following analysis of the text,

structure, and purpose of the relevant Guidelines provisions, we conclude that the

production of an unauthorized access device/means of identification is separate and

distinguishable from the mere transfer, possession, or use of such device. Thus, we

hold that imposition of the two-level enhancement pursuant to § 2B1.1(b)(11)(B)(i)

is not prohibited in § 1028A cases, so long as the enhancement is premised on the

defendant’s “production” of an unauthorized access device and the party seeking

the enhancement sufficiently shows that the defendant engaged in such conduct.

See United States v. Askew, 193 F.3d 1181, 1183 (11th Cir. 1999) (“The

[g]overnment bears the burden of establishing by a preponderance of the evidence

the facts necessary to support a sentencing enhancement.”); see also United States

v. Salem, 587 F.3d 868, 870–71 (8th Cir. 2009) (per curiam) (requiring evidence of

manufacture or production—more than mere use—to support the production

enhancement).

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We begin our analysis with the text. The Guidelines define “production” as

“includ[ing] manufacture, design, alteration, authentication, duplication, or

assembly.” U.S.S.G. § 2B1.1 cmt. n.10(A). This definition plainly covers conduct

different from or in addition to mere “transfer, possession, or use.” When a

defendant manufactures, designs, alters, authenticates, duplicates, or assembles a

device, he is doing something to the device. In contrast, transfer, possession, and

use only require a defendant to do something with a device. For example, a

defendant who manufactures counterfeit checks engages in categorically different

conduct than a defendant who simply makes purchases with counterfeit checks,

because the first defendant takes action that affects the checks themselves (creating

them), whereas the second defendant simply uses the checks. Given this

distinction, the § 2B1.1 production enhancement is not limited by § 2B1.6 in the

context of § 1028A cases.

Our conclusion finds further support in the structure of the Guidelines

provisions at issue. We presume that the “inclusion or exclusion of language [in

the Guidelines] is intentional and purposeful,” United States v. Perez, 366 F.3d

1178, 1182 (11th Cir. 2004); Cruz, 713 F.3d at 607, and that “the Sentencing

Commission intended to apply separate guideline sections cumulatively, unless

specifically directed otherwise,” United States v. Matos-Rodriguez, 188 F.3d 1300,

1310 (11th Cir. 1999) (emphasis omitted). Here, we presume that the inclusion of

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the word “production” in § 2B1.1(b)(11)(B)(i) was intentional and that its

exclusion in Application Note 2 of § 2B1.6 was also intentional. It follows, then,

that the Sentencing Commission did not intend for the commentary to § 2B1.6 to

limit the application of the two-level enhancement in subsection (B) of

§ 2B1.1(b)(11) with regard to relevant conduct involving the production of an

unauthorized access device. And, because no language in § 2B1.6 “specifically

direct[s]” the disqualification of § 2B1.1(b)(11)(B)(i)’s two-level enhancement for

the production of unauthorized access devices when a defendant has been charged

under § 1028A, we may apply these separate Guidelines sections cumulatively.

See Matos-Rodriguez, 188 F.3d at 1310.

Finally, it makes sense that the Sentencing Commission would include a

sentencing enhancement for producing, rather than simply transferring, a

fraudulent access device: the conduct entailed in production may be more

problematic than mere transference. By producing unauthorized devices, a

defendant furthers the criminal scheme and creates more opportunities for the

prohibited conduct to continue. That specific conduct enhances the criminal act

more so than simply stealing a credit card and misusing it (or using an expired,

revoked, or canceled device): it causes the proliferation of unauthorized devices.

Moreover, such conduct may be harder to detect. For instance, if a credit card is

simply stolen, a victim may cancel the card when he or she realizes that card is

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missing. But if the defendant instead creates a new card and begins using it, the

victim may not notice the fraud until discovering the unauthorized charges on his

or her account. Nevertheless, under Taylor’s preferred reading of the Guidelines,

sentencing courts would not be permitted to differentiate between those who use or

transfer unauthorized devices and those who create the means for that subsequent

criminal activity. That is to say, a defendant who produced a fraudulent card

would be subject to the same sentence as another defendant who, for instance,

simply purchased the card from the first defendant. By including an enhancement

for production, the Sentencing Commission clearly did not intend that result.

Instead, a defendant who creates the means for not only himself, but also others, to

engage in criminal activity should not enjoy the same punishment as the individual

who simply uses an already-existing item to engage in criminal activity. 6

Accordingly, the plain language of the Guidelines, the structure of the

relevant Guidelines provisions, and the purposes underlying those provisions

support our conclusion today. Therefore, we hold that the district courts may apply

the § 2B1.1(b)(11)(B)(i) enhancement to a defendant’s sentence—even when that

defendant has also been convicted of violating § 1028A—if the government

6
Contrary to Taylor’s assertions, this interpretation of the term “production” does not
mandate the production enhancement any time a defendant commits the underlying offense.
“Unauthorized access device” is defined as “any access device that is lost, stolen, expired,
revoked, canceled, or obtained with intent to defraud.” 18 U.S.C. § 1029(e)(3); U.S.S.G.
§ 2B1.1 cmt. n.10(A). A defendant may use a lost, stolen, expired, revoked, or canceled device
and be subject to liability under § 1028A without necessarily “producing” the device and being
subjected to the production enhancement.
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demonstrates, by a preponderance of the evidence, that the defendant’s relevant

conduct included the “production” of an unauthorized access device.

B. Conduct Constituting “Production” under § 2B1.1(b)(11)(B)(i)

Having determined that a sentence may be subject to the two-level

production enhancement in § 2B1.1(b)(11)(B) even when the defendant was also

convicted under § 1028A, we turn now to whether a defendant “produces” an

unauthorized access device when he causes an innocent third party to physically

create or otherwise generate that device. Taylor avers that such conduct is not

“production” within the meaning of the Guidelines because “production” requires

first-hand creation.

While our court has concluded that a defendant can be subjected to a

sentencing enhancement based on the actions of a co-conspirator, 7 we have never

squarely held whether a defendant is liable for “producing” a device when neither

the defendant nor a co-conspirator directly manufactured the item. Consequently,

the second legal issue in this case is whether “production” encompasses a situation

in which the defendant caused an innocent third party to create the fraudulent

device at the defendant’s behest. Taylor argues that this conduct should not

7
A sentencing enhancement may apply even when premised on a co-conspirator’s
actions because a defendant is responsible for the reasonably foreseeable acts of his co-
conspirators. See, e.g., Cruz, 713 F.3d at 607–08 (defendant liable for device-making equipment
when co-conspirator possessed and used the equipment); see also U.S.S.G. § 1B1.3(a)(1)(B)(iii)
(a defendant’s “relevant conduct” includes “reasonably foreseeable” acts of others in furtherance
of a jointly undertaken criminal activity).
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constitute “production” because it simply involves “procuring” the device (here, a

credit card) after it was produced by an innocent third party (a bank). According to

Taylor, only a defendant who creates cards personally or through criminal

associates deserves an enhancement for production of an unauthorized access

device. However, we hold that “production” for purposes of the §

2B1.1(b)(11)(B)(i) enhancement includes a situation in which a defendant willfully

causes or induces an innocent third party to produce an unauthorized access device.

The Guidelines’ plain language, our precedents, and guidance from our sister

circuits direct this conclusion.

The Guidelines provide for a broad interpretation of “production” under

§ 2B1.1(b)(11)(B)(i). We interpret the Guidelines using “its plain language and,

absent ambiguity, no additional inquiry is necessary.” Cruz, 713 F.3d at 607

(internal quotation marks omitted). As discussed above, the Guidelines define

“production” as “includ[ing] manufacture, design, alteration, authentication,

duplication, or assembly.” U.S.S.G. § 2B1.1 cmt. n.10(A). This far-reaching

definition clearly encompasses a wide range of behaviors. In addition, under the

Guidelines, specific offense enhancements may be determined by “all acts and

omissions committed, aided, abetted, counseled, commanded, induced, procured,

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or willfully caused by the defendant.” Id. § 1B1.3(a)(1)(A).8 Reading these

provisions together, “production” plainly includes conduct where an individual

either commits or willfully causes the “manufacture, design, alteration,

authentication, duplication, or assembly” of an unauthorized access device.

This interpretation of “production” is consistent with the broad

interpretations adopted by this court and other circuits. We have held that

“production” applies to a defendant’s “capture, storage, and transmittal” of

preexisting passwords and user names because “production” includes

“‘duplication’ or ‘assembly’ of preexisting items.” See Barrington, 648 F.3d at

1203 (affirming production enhancement where defendants “view[ed] or

record[ed] . . . personal identification data” (internal quotation marks omitted)).

Similarly, the First Circuit gave broad effect to conduct qualifying as

“production” when it found the production enhancement could be applied in the

case of a defendant who, recognizing that air bubbles in the laminate of a

fraudulent driver’s license could undermine its appearance as legitimate, either

popped the bubbles herself or instructed her co-conspirator to do so. See United

States v. Jones, 551 F.3d 19, 25–26 (1st Cir. 2008). The court held that this

8
The crimes set forth in 18 U.S.C. §§ 1028A and 1029(a)(2) are specific intent offenses.
Section 1028A requires that the defendant have “knowingly transfer[red], possesse[d], or use[d],
without lawful authority, a means of identification of another person. See 18 U.S.C. §
1028A(a)(1) (emphasis added). Section 1029(a)(2) requires the government to prove the
defendant “knowingly and with intent to defraud traffic[ked] or use[d] one or more unauthorized
access devices during any one-year period, and by such conduct obtain[ed] anything of value
aggregating $1,000 or more during that period.” 18 U.S.C. § 1029(a)(2) (emphasis added).
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conduct was the type of behavior the Guidelines attempt to capture in the

production enhancement because, although the physical act of popping air bubbles

might seem minor, this small act of alteration “transformed the flawed driver’s

license into a usable counterfeit access device.” Id. at 26. An even more

persuasive example comes from the Seventh Circuit, where the court held that the

production enhancement could be applied to a defendant discovered with credit

and debit cards imprinted with the names of the defendant and his co-conspirators.

See United States v. Hinds, 770 F.3d 658, 663–64 (7th Cir. 2014). The court

explained that “the [embossed] names on the cards speak for themselves. This is

not a crime where [the defendant] used the stolen credit cards of John or Jane Doe.

His crime . . . involved cards designed specifically for him to use; they had his

name on them and were linked to various active accounts.” Id. The court decided

this sufficiently demonstrated that the defendant, “his co-conspirators, or someone

acting on their behalf, must have designed or created these counterfeit cards in

preparation for their crimes.” 9 See id. at 663. Based on this undisputed evidence,

the court held that the production enhancement was justified. See id. at 664.

9
Taylor avers that the phrase “in preparation for their crimes” means that the Seventh
Circuit based its conclusion on an understanding that someone within the conspiracy created the
cards. Even if we were to accept this arguable reading of the language in Hinds, the plain
language of the Guidelines states that a defendant’s sentence may be enhanced by all actions
willfully caused or induced by the defendant. See U.S.S.G. § 1B1.3(a)(1)(A). Hinds did not
address this important language, and Taylor has presented no reason why it does not control.
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In sum, the definition of “production” is broadly written in the Guidelines

and, for that reason, has been broadly construed. And the Guidelines provision for

determining specific offense enhancements makes clear that a defendant is

responsible for all actions he willfully causes or induces. Consequently, we hold

that the production enhancement is applicable to conduct involving third-party

production—whether physically performed by a criminal co-conspirator or by an

innocent party—that has been willfully induced by the defendant.

C. Whether the District Court Erred in Applying the Production
Enhancement Based on Taylor’s Relevant Conduct

The evidence submitted by the government in this case shows that Taylor

induced and willfully caused the production of unauthorized access devices when

he contacted banks using stolen identities, added himself as an authorized user to

the accounts associated with those identities, and directed the banks to issue new

credit cards. Put simply, Taylor caused the bank to physically produce credit cards

bearing his name. Thus, while the credit cards were not Taylor-made, they were

certainly tailor-made for his offense.

Taylor’s relevant conduct is captured by the broad language of the

“production” definition and the plain meaning of “induced” and “willfully caused”

in the Guidelines. See U.S.S.G. § 2B1.1 cmt. n.10(A); id. § 1B1.3(a)(1)(A). The

evidence shows that after Taylor was added to an account, the bank would produce

a new credit card, bearing Taylor’s name and the account number, and send it to
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him. Taylor obtained these newly produced credit cards without the consent of the

true account holders and with intent to defraud, making the credit cards

“unauthorized access devices.” See 18 U.S.C. § 1029(a)(2), (e)(3); U.S.S.G. §

2B1.1 cmt. n.10(A).

Accordingly, as in Jones, where the defendant’s bubble-popping alteration

of a driver’s license created a usable counterfeit access device, Taylor’s actions—

getting a bank to add his name to an account and manufacture a new card

embossed with his name—created a usable unauthorized access device. 10 See

Jones, 551 F.3d at 25–26; U.S.S.G. § 2B1.1 cmt. n.10(A); cf. Salem, 587 F.3d at

870–71 (determining production enhancement was improper where “there was no

evidence presented at sentencing about how [the defendant] procured the

fraudulent bar code labels used in his scheme, or who produced or manufactured

them”). Indeed, Taylor’s conduct exceeded simply using a means of identification

(a stolen identity) to get access to another means of identification/unauthorized

access devices (a credit card)—he had the bank add him to the account and create a

new credit card with his name on it.11 See Hinds, 770 F.3d at 663–64. Taylor

10
For this reason, Taylor’s argument that “production” does not encompass innocent
third-party production in the ordinary course of that party’s business practices fails. The fact that
banks are ordinarily engaged in credit card production is not the same as the banks ordinarily
being involved in (or, rather, induced to commit) fraudulent credit card production.
11
We pass no judgment on whether this conduct could have qualified for an enhancement
under the production prong of § 2B1.1(b)(11)(C)(i) instead. See United States v. Auguste, 392
F.3d 1266, 1267–68 (11th Cir. 2004). The government neither raised this issue in the district
court nor addressed it on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330
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Case: 14-13288 Date Filed: 03/28/2016 Page: 20 of 21

“willfully caused” or “induced” the production of the unauthorized access devices

by impersonating legitimate account holders and requesting that the banks create

and issue new credit cards to him. See U.S.S.G. § 1B1.3(a)(1)(A).

Consequently, because Taylor induced and willfully caused banks to

produce new credit cards, the district court did not err in applying the

§ 2B1.1(b)(11)(B)(i) enhancement for “production” of an unauthorized access

device.

IV. Conclusion

We conclude that the § 2B1.1(b)(11)(B) production enhancement applies to

the Guidelines’ calculation for Taylor’s § 1029(a)(2) sentence, even though Taylor

was also sentenced under § 1028A, because his relevant conduct included actions

sufficiently distinct from the mere transfer, possession, or use of an unauthorized

access device/means of identification. That is to say, Taylor also produced

unauthorized access devices. We reach the conclusion that he engaged in

“production” because willfully causing an innocent third party to produce the

devices meets the meaning of “production” under the Guidelines. Therefore, the

two-level enhancement to Taylor’s offense level pursuant to § 2B1.1(b)(11)(B)(i)

(11th Cir. 2004); Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1284–85 (11th
Cir. 2003).
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Case: 14-13288 Date Filed: 03/28/2016 Page: 21 of 21

for production of an unauthorized access device is warranted. We affirm the

district court.

AFFIRMED.

21

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3189205. Public record. Not legal advice.