Petition for Writ of Certiorari — Trayone Lefferio Bell, Petitioner v. United States

Supreme Court briefDec 8, 2023

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2“6347

In the

Supreme Court of the United States

Supreme Court, U.S

FILED

TRAYONE LEFFERIO BELL,

Petitioner,

DEC - 8 2023

- OFFICE OF THF ri

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Trayone Bell

FCI Coleman Medium

P. O. Box 1032

Coleman, FL 33521

QUESTIONS PRESENTED FOR REVIEW

The Federal Sentencing Guidelines under 2B1.1(b)(1) calculates

loss based on actual loss or intended loss. Numerous circuits calculate

"loss" within the context of U.S.S.G. § 2B1.1(b)(1) includes intended loss.

United States v. You, 74 F.4th 378, 396-98 (6th Cir. 2023); United States

v. Gadson, 77 F.4th 16, 19-22 (1st Cir. 2023); United States v. Lee, 77

F.4th 565, 573-74 (7th Cir. 2023); United States v. Verdeza, 69 F.4th 780,

793 (11th Cir. 2023).

The Third Circuit, has held otherwise. United States v. Banks, 55

F.4th 246, 255-58 (3d Cir. 2022) (holding "loss" in U.S.S.G. § 2B1.1(b)(1)

is limited to actual loss).

In light of the split in the circuits, Petitioner presents the following

question:

Does the intended loss commentary to the fraud guidelines §

2B1.1(b)(1) violate this court’s decision Kisor v. Wilke, 139 S.Ct. 2400

(2019).

PARTIES TO THE PROCEEDINGS

IN THE COURT BELOW

In addition to the parties named in the caption of the case, the

following individuals were parties to the case in the United States Court

of Appeals for the Eleventh Circuit and the United States District Court

for the Middle District of Florida.

None of the parties is a company, corporation, or subsidiary of any

company or corporation.

111

TABLE OF CONTENTS

Questions Presented for Review

List of Parties to the Proceedings in the Courts Below

Table of Contents

Table of Authorities

Opinions Below

Statement of Jurisdiction

Constitutional Provisions, Treaties, Statutes, Rules, and Regulations

Involved........................................................................................................ 2

Statement of the Case

Statement of the Facts

Reasons for Granting the Writ

Rule 10 Considerations Governing Review on the Writ of Certiorari .. 7

I. Does the intended loss commentary to the fraud guidelines §

2B 1.1(b)(1) violate this court’s decision Kisor v. Wilke, 139 S.Ct. 2400

(2019)............................................................................................................. 8

A. The Supreme Court’s decision in Kisor limits Auer deference

B. The intended loss commentary impermissibly expands the

fraud guideline......................................................................................... 12

1. “Loss” is not genuinely ambiguous; it means actual loss

2. Even if “loss” were genuinely ambiguous, the commentary is

not a reasonable interpretation of it............................................... 15

Conclusion

Bell v. United States,

2023 U.S. App. LEXIS 25384 (11th Cir. Sep. 25, 2023)

A-l

Bell v. United States,

6:20-cv-1848-CEM-EJK, M.D. Fla. November 22, 2022)

B-l

TABLE OF AUTHORITIES

Cases

Auer v. Robbins,

519 U.S. 452 (1997) ..........................................................

10, 9

Bell v. United States,

2023 U.S. App. LEXIS 25384 (11th Cir. Sep. 25, 2023)

Bell v. United States,

140 S. Ct. 293 (2019) ........................................................

Lamie v. United States Trustee,

540 U.S. 526 (2004) ..........................................................

Bell v. United States,

140 S. Ct. 293 (2019) ........................................................

Ovalle v. Attorney Gen.,

791 F. App'x 333 (3d Cir. 2019)......................................

Riccio v. Sentry Credit, Inc.,

954 F.3d 582 (3d Cir. 2020) .............................................

Singh v. Attorney Gen.,

677 F.3d 503 (3d Cir. 2012) .... ........................................

14, 15

Stinson v. United States,

508 U.S. 36 (1993) ............................................................

United States v. Havis,

927 F.3d 382 (6th Cir. 2019) (en banc) .........................

11, 12

United States v. Kirschner,

995 F.3d 327 (3d Cir. 2021) .............................................

United States v. Nasir,

982 F.3d 144 (3d Cir. 2020) .............................................

passim

United States v. Osang,

618 F. App'x 133 (3d Cir. 2015)......................................

United States v. Perez,

No. 19-1469, 2021 WL 3087672

United States v. Riccardi,

989 F.3d 476 (6th Cir. 2021)......

United States v. Bell,

750 F. App'x 941 (11th Cir. 2018)

Violate Kisor V. Wilke,

139 S. CT. 2400 (2019) .............

passim

Statutes

8U.S.C. § 1101

18 U.S.C. § 641

18 U.S.C. § 994

18 U.S.C. § 1028

18 U.S.C. § 1028A

18 U.S.C. § 1028A(2)

18 U.S.C. § 641

18 U.S.C. § 1029

passim

28 U.S.C. § 1254

28 U.S.C. § 1654

2,3

Vll

Other Authorities

U.S.S.G. § 2B1.1 cmt. n.3

passim

U.S.S.G. § 2B1.1

5, 6

U.S.S.G. §2B1.1(b) ...

U.S.S.G. § 2B1.1(b)(1)

U.S.S.G. § 2Bl.l(b)(l)(I)

Statutes

8U.S.C. § 1101

18 U.S.C. § 641

18 U.S.C. § 994

18 U.S.C. § 1028

18 U.S.C. § 1028A

18 U.S.C. § 1028A(2)

18 U.S.C. § 641

18 U.S.C. § 1029

passim

28 U.S.C. § 1254

28 U.S.C. § 1654

2,3

Rules

Rule 10.1(a), (c)

Vlll

No:

In the

Supreme Court of the United States

TRAYONE LEFFERIO BELL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Trayone Lefferio Bell, (“Bell”) Petitioner herein, respectfully prays

that a writ of certiorari is issued to review the judgment of the United

States Court of Appeals for the Eleventh Circuit, entered in the aboveentitled cause.

OPINION BELOW

The opinion of the Court of Appeals for the Eleventh Circuit, whose

judgment is herein sought to be reviewed, was entered on September 20,

2023, a published decision in Bell v. United States, No. 23-11617, 2023

U.S. App. LEXIS 25384 (11th Cir. Sep. 25, 2023) is reprinted in the

separate Appendix A to this Petition.

The opinion of the Southern District of Florida, whose judgment is

herein sought to be reviewed, was entered on November 22, 2022, an

unpublished decision in Bell u. United States, No. 6:20-cv-1848-CEMEJK, M.D. Fla. November 22, 2022) is reprinted in the separate Appendix

B to this Petition.

STATEMENT OF JURISDICTION

The Judgment of the Court of Appeals was entered on September 25,

2023. The Jurisdiction of this Court is invoked under Title 28 U.S.C. §

1654(a) and 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES AND RULES INVOLVED

The Fifth Amendment to the Constitution of the United States

provides:

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a grand jury, except

in cases arising in the land or naval forces, or in the militia, when in

actual service in time of war or public danger; nor shall any person

be subject for the same offense to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without

due process of law; nor shall private property be taken for public use,

without just compensation.

Id. Fifth Amendment.

The Sixth Amendment to the Constitution of the United States

provides:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for his

defense.

Id. Sixth Amendment.

STATEMENT OF THE CASE

In the Middle District of Florida's district court, Kevin Proulx

represented Bell. Bell was charged on December 21, 2016, with count 1,

involving possession of 15 or more access devices, in violation of 18 U.S.C.

§§ 1029(a)(3) and 1029(c)(l)(A)(i) (Dkt. 1). Additional charges against

Bell included counts 2, 4, and 7 for aggravated identity theft under Title

18 U.S.C. § 1028(a)(i), and counts 3 and 5 for theft of government money,

in violation of 18 U.S.C. § 641. Bell's trial resulted in a guilty verdict (Dkt.

52, 57). On January 9, 2018, Bell received a sentence totaling 174 months

with an additional 3 years of supervised release (Dkt. 73). The Eleventh

Circuit Court of Appeals upheld Bell's sentence and conviction on October

17, 2018. United States v. Bell, 750 F. App'x 941 (11th Cir. 2018). A writ

of certiorari was denied on October 7, 2019. Bell v. United States, 140 S.

Ct. 293 (2019).

STATEMENT OF THE FACTS

An investigation by law enforcement revealed that Bell had submitted

false tax returns in other people's names and collected their refunds.

United States v. Bell, 750 F. App'x 941, 942 (11th Cir. 2018) He used

their stolen social security numbers and other identifying information to

fill out the returns and requested that the government issue the refunds

as debit cards. Id. at 942. He was charged with one count of knowing

possession of 15 or more counterfeit and unauthorized access

devices with the intent to defraud, in violation of 18 U.S.C. § 1029(a)(3),

(c)(l)(A)(i); one count of knowing transfer, possession, and use of another

person's identification, in violation of 18 U.S.C. § 1028A(a)(l); two counts

of knowing and willful embezzlement, theft, purloin, and conversion of

another person's tax refund, in violation of 18 U.S.C. §§ 641 and 2; and

two counts of knowing transfer, possession, and use of another person's

social security number to steal public money, in violation of 18 U.S.C. §

1028A(a)(l) and (2). Id.

At sentencing, the Probation Officer determined that according to the

Internal Revenue Service, (“IRS”) the loss was calculated at $ 823,797

actual loss in payments to fraudulent tax returns. (PSI 1 22). However,

the Sentencing Guidelines explains in its Commentary Notes to include

intended loss as well. Intended loss is not mentioned in Guideline § 2B1.1

loss calculations. Guideline section 2B1.1 Commentary Note provides as

follows:

3. Loss Under Subsection (b)(1). This application note applies to

the determination of loss under subsection (b)(1).

(A) General Rule. Subject to the exclusions in subdivision (D)

loss is the greater of actual loss or intended loss.

(i) Actual Loss. “Actual loss” means the reasonably

foreseeable pecuniary harm that resulted from the offense.

(ii) Intended Loss. “Intended loss” (I) means the pecuniary

harm that the defendant purposely sought to inflict; and

(II) includes intended pecuniary harm that would have

been impossible or unlikely to occur (e.g., as in a

government sting operation, or an insurance fraud in

which the claim exceeded the insured value).

Id. Guidelines § 2B1.1

Notwithstanding the actual loss as determined by the IRS, the

Probation Office determined the intended loss separately:

Bell possessed more than 100 unauthorized access devices (debit

cards). Bell fraudulently obtained and used the personal

identification information of R.B., V.A., D.S. to file fraudulent tax

returns. In addition, Bell used the social security numbers of at least

150 victims to unlawfully file 218 tax returns and receive tax refunds.

Therefore, Bell is responsible for a total intended loss of $1,677,168

based on the fraudulent tax returns.

Id. (PSI H 20).

As a result of the intended loss enhancement, Bell received 16-level

sentence enhancement under the Sentencing Guidelines § 2B1.l(b)(l)(I).

(PSI H 30). The District Court sentenced Bell to 174 months with an

additional 3 years of supervised release. (Dkt. 73).

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD ISSUE A WRIT OF CERTIORARI

BECAUSE THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT COURT OF APPEALS HAS DECIDED

A FEDERAL QUESTION IN AWAY THAT CONFLICTS WITH THE

APPLICABLE DECISIONS OF THIS COURT

Supreme Court Rule 10 provides relevant parts as follows:

Rule 10

CONSIDERATIONS GOVERNING REVIEW

ON WRIT OF CERTIORARI

(1) A review of writ of certiorari is not a matter of right, but of

judicial discretion. A petition for a writ of certiorari will be granted

only when there are special and important reasons, therefore. The

following, while neither controlling nor fully measuring the Court’s

discretion, indicate the character of reasons that will be considered:

(a) When a United States Court of Appeals has rendered a

decision in conflict with the decision of another United States

Court of Appeals on the same matter; or has decided a federal

question in a way in conflict with a state court of last resort;

or has so far departed from the accepted and usual course of

judicial proceedings, or sanctioned such a departure by a

lower court, as to call for an exercise of this Court’s power of

supervision.

(b) When a ... United States court of appeals has decided an

important question of federal law which has not been but

should be, settled by this Court, or has decided a federal

question in a way that conflicts with applicable decision of

this Court.

Id. Supreme Court Rule 10.1(a), (c).

QUESTIONS PRESENTED

DOES THE INTENDED LOSS COMMENTARY TO THE

FRAUD GUIDELINES § 2Bl.l(b)(l) VIOLATE KISOR v.

WILKE, 139 S. CT. 2400 (2019).

In the landmark decision Kisor v. Wilke, 139 S.Ct. 2400 (2019) the

Supreme Court limited the deference afforded an agency's interpretation

of statutory text. See Kisor at 2408 (2019). Kisor applies to the Sentencing

Guidelines. As this Court held in United States v. Nasir, 982 F.3d 144,

156 (3d Cir. 2020) “guidelines commentary can only interpret guidelines

text, not expand it.” Id. at 159 (3d Cir. 2020) (en banc). The Commentary

must be set aside unless the text is “genuinely ambiguous” and the

commentary is a reasonable interpretation of it. Id. at 158.

Under Kisor the intended loss commentary of the guidelines must fall.

While the fraud guideline refers to a monetary “loss” § 2Bl.l(b), the

commentary expands it to provide that “loss is the greater of the actual

loss or intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A). The commentary

further defines “intended loss” as “the pecuniary harm that the defendant

purposely sought to inflict ... including] the intended pecuniary harm

that would have been impossible or unlikely.” Id. This commentary fails

at both levels of the Nasir analysis. “Loss” is not genuinely ambiguous; it

means actual loss. And even if it were ambiguous, the commentary is not

a reasonable interpretation of it. For example, no speaker of ordinary

English would say “the loss exceeded $ 6,500” when the loss is zero. And

certainly, no speaker of ordinary English would say “the loss exceeded $

6,500” when loss is impossible.

The Supreme Court’s decision in Kisor limits Auer

deference.

In 2019, the Supreme Court decided Kisor, narrowly construing Auer

deference-the deference given an agency's interpretation of statutory

text. Kisor, 139 S. Ct. at 2408 (citing Auer v. Robbins, 519 U.S. 452

(1997)). As this Supreme Court held, “Auer deference is not the answer

to every question of interpreting an agency's rules. Far from it.” Id. at

2414. Rather, for Auer deference to apply, an interpretation must survive

multiple levels of analysis. At the first level, “the possibility of deference

can arise only if a regulation is genuinely ambiguous. And when we use

that term, we mean it-genuinely ambiguous, even after a court has

resorted to all the standard tools of interpretation.” Id. Before “wav[ing]

the ambiguity flag ... a court must ‘carefully consider^’ the text,

structure, history, and purpose of a regulation, in all the ways it would if

it had no agency to fall back on. Doing so will resolve many seeming

ambiguities out of the box, without resort to Auer deference.” Id. at 2415.

At the second level, even if a text is genuinely ambiguous, an agency's

interpretation warrants Auer deference only if the interpretation is

“reasonable.” Id. Again, this is no mere formality. The interpretation

“must come within the zone of ambiguity the court has identified after

employing all its interpretative tools. And let there be no mistake: That

is a requirement an agency can fail.” Id. at 2416.1 Kisor changed how

Courts review guidelines commentary. By way of background, the

Guidelines manual contains two primary types of provisions, which must

be distinguished to “protectf] the separation of powers.” Nasir, 982 F.3d

at 159. Most authoritative is the guidelines text, which is submitted to

1 A court may also consider “whether the character and context of the

agency interpretation entitl[e] it to controlling weight.” United States v.

Perez, No. 19-1469, 2021 WL 3087672, *3 (3d Cir. July 22, 2021) (quoting

Kisor, 139 S. Ct. at 2416). Relevant is whether the interpretation is the

agency's official position, implicates its expertise, and is a fair and

considered judgment (not a post hoc rationalization or convenient

litigating position). See id.; see also Ovalle v. Attorney Gen., 791 F. App'x

333, 336 (3d Cir. 2019) (not precedential) (declining to extend Auer

deference where issue fell “more naturally into a judge's bailiwick”)

(quoting Kisor, 139 S. Ct. at 2417).

Congress for review and notice and-comment rulemaking. See Stinson v.

United States, 508 U.S. 36, 41 (1993) (citing 18 U.S.C. § 994(p)).

Secondary is the commentary, which does not require congressional

review or notice-and-comment rulemaking and can be changed at the

whim of the Sentencing Commission. See Stinson v. United States, 508

U.S. 36, 40 (1993) (citing 18 U.S.C. § 994(p)); see also Nasir, 982 F.3d at

159. Guideline’s commentary has historically received Auer deference.

The commentary “is authoritative unless it violates the Constitution or a

federal statute, or is inconsistent with, or a plainly erroneous reading of’

the relevant guideline. Stinson, 508 U.S. at 38. But Kisor limited Auer

deference. And so, Nasir limited the deference owed to guidelines

commentary. Under Nasir, commentary cannot expand a guideline's

scope. Nasir, 982 F.3d at 159. “Because it has not been approved by

Congress, 'commentary has no independent legal force-it serves only to

interpret the [guidelines' text, not to replace or modify it.'” Id. at 159

(emphasis and alteration in original) (quoting United States v. Havis, 927

F.3d 382, 386 (6th Cir. 2019) (en banc)). The commentary must be

disregarded unless the guidelines text is “genuinely ambiguous” and the

commentary is a reasonable interpretation of it. Id. at 158.

In Nasir, for example, this Court considered the career offender

guideline's definition of a “controlled substance offense.” See id. at 159.

The guideline text does not mention inchoate offenses, which “alone

indicates it does not include them.” Id. Yet the commentary purported to

include inchoates. In doing so,

it overstepped the bounds of

interpretation. The commentary must therefore be disregarded, and

inchoate offenses may no longer be deemed controlled substance offenses.

See id. at 160.

B. The intended loss commentary

expands the fraud guideline.

impermissibly

The court in United States v. Kirschner, 995 F.3d 327, 333 (3d Cir.

2021) has noted that Kisor and Nasir may have implications for the

intended loss commentary. The same commentary that was utilized in

Bell’s case. Kirschner, the Court observed that “only th[e] comment[ary],

not the Guidelines’ text, says that defendants can be sentenced based on

the losses they intended. By interpreting ‘loss’ to include intended loss, it

is possible that the commentary ‘sweeps more broadly than the plain text

of the Guideline.’” Kirschner, at 333. Yet Kirschner did not resolve the

issue, as it wasn't raised. See id. The issue is raised here, and the

intended loss commentary must be disregarded. If the Sentencing

Commission wants to increase imprisonment for intended loss it can do

so, but only by submitting the text to Congress for inclusion in the

guideline itself. There is certainly an argument to be made both ways on

whether actual and intended loss should be treated equivalently in

setting a Guidelines range-the actual impacts of a crime often factor into

what is considered the appropriate punishment. That is why this has to

go through rulemaking.

1. “Loss” is not genuinely ambiguous; it means

actual loss.

The fraud guideline provides for an offense-level enhancement if the

“loss” exceeds various monetary thresholds. U.S.S.G. § 2Bl.l(b). The

guideline does not define “loss” other than to provide that it is measured

in dollars. Accordingly, “loss” is presumed to have its ordinary meaning,

and “dictionaries are a good place to start.” Riccardi, at 488. One

dictionary defines “loss” as:

1 a: the act of losing possession b: the harm or privation resulting

from loss or separation c: an instance of losing 2: a person or thing

or an amount that is lost ... 3: a failure to gain, win, obtain, or

utilize b: an amount by which the cost of an article or service

exceeds the selling price 4: decrease in amount, magnitude, or

degree 5: destruction, ruin 6: the amount of an insured's financial

detriment by death or damage that the insurer become liable for.

Id. Webster's Ninth New Collegiate Dictionary (1987)

Other dictionary definitions are similar:

One dictionary defines the word to mean, among other things, the

“amount of something lost” or the “harm or suffering caused by

losing or being lost.” American Heritage Dictionary of the English

Language 1063 (3d ed. 1992). Another says it can mean “the

damage, trouble, disadvantage, [or] deprivation ... caused by

losing something” or “the person, thing, or amount lost.” Webster's

New World College Dictionary 799 (3d ed. 1996). A third defines it

as “the being deprived of, or the failure to keep (a possession,

appurtenance, right, quality, faculty, or the like),” the

“[d]imunition of one's possessions or advantages,” or the

“detriment or disadvantage involved in being deprived of

something[.]” Oxford English Dictionary 37 (2d ed. 1989).

Id. Riccardi, at 486. All of these definitions refer to actual loss, not a loss

that did not occur, but was merely intended. Indeed, this Court has

already interpreted the ordinary meaning of “loss” in just this way. In

Singh v. Attorney Gen., 677 F.3d 503, 510 (3d Cir. 2012)2, the Court

quoted dictionary definitions for “loss” and observed that “each of these

2 In Singh, the quoted definitions of “loss” were (a) “the act or fact of

losing”; (b) “a person or thing or an amount that is lost”; (c) “the act or

fact of failing to gain, win, obtain, or utilize”; (d) a “decrease in amount,

magnitude, or degree”; (e) “the state or fact [*62] of being destroyed or

placed beyond recovery”; and (f) “the amount of an insured’s financial

detriment due to the occurrence of a stipulated contingent event.”

Corresponding examples to illustrate these definitions include: (a) “loss

of a leg”; (b) “killed, wounded, or captured soldiers”; (c) “loss of

opportunity”; (d) “altitude loss”; (e) “loss of life in war”; and (f) financial

detriment caused by “death, injury, destruction, or damage.”

definitions, and their corresponding examples, refer to loss that actually

occurs.” Singh held that it was “unambiguous” that the ordinary meaning

of “loss” is actual loss, and that it was unnecessary to look any further for

guidance. Id. at 512.3 That is correct. The text of § 2Bl.l(b) is not

genuinely ambiguous, and so the intended-loss commentary violates

Kisor and Nasir and must be disregarded.

2. Even if “loss” were genuinely ambiguous, the

commentary is not a reasonable interpretation

of it.

Even if “loss” were genuinely ambiguous, the commentary must still

be disregarded because it is not a reasonable interpretation of it. In Kisor,

the Supreme Court took a hard line on this requirement. “If genuine

ambiguity remains, ... the agency's reading must still be ‘reasonable.’ In

other words, it must come within the zone of ambiguity the court has

identified after employing all its interpretative tools. And let there be no

mistake: That is a requirement an agency can fail.” Kisor, 139 S. Ct. at

3 While Singh involved a different context-the definition of aggravated

felony under 8 U.S.C. § 1101(a)(43)(M)(i)-its holding rested on the

ordinary meaning of “loss” as set forth in the dictionary, not on the

particular context in which it arose.

2415-16. The intended loss commentary fails. Even if there is a zone of

ambiguity as to the meaning of “loss” the commentary is outside the zone.

The Sixth Circuit recently reached a similar conclusion, applying Kisor

to another part of the same guideline commentary. In United States v.

Riccardi, 989 F.3d 476 (6th Cir. 2021), the Sixth Circuit considered

commentary to the fraud guideline that defines “loss” for unauthorized

access devices (e.g., stolen gift cards) as “not less than $ 500” per card.

See Riccardi, at 479 (citing U.S.S.G. § 2B1.1 cmt. n.3(F)(i)). The Court

disregarded the commentary. As it explained, even if “loss” were

genuinely ambiguous-an issue the Court did not need to resolveinterpreting it to mean at least $ 500 per card is not reasonable. See id.

at 486. The commentary “cannot 'be derived from [§ 2B1.1] by a process

reasonably described as interpretation.' The Commission's decision to

adopt this minimum loss amount was instead a substantive policy

choice,” which must be submitted to Congress for inclusion in the

guidelines text. Id. (alteration in original) (citation omitted).

The same is so here. The fraud guideline provides for a loss

enhancement if the “loss” exceeds various thresholds, beginning at $

6,500. U.S.S.G. § 2Bl.l(b). The commentary, in turn, expands the

■

guideline by providing that “loss is the greater of the actual loss or

intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A). The commentary further

defines “intended loss” as “the pecuniary harm that the defendant

purposely sought to inflict ... including] intended pecuniary harm that

would have been impossible or unlikely to occur (e.g., as in a government

sting operation, or an insurance fraud in which the claim exceeded the

insured value).” Id. This is an unreasonable interpretation of “loss.” No

speaker of ordinary English would say “the loss exceeded $ 6,500” when

the loss is zero. And certainly, no speaker of ordinary English would say

“the loss exceeded $ 6,500” when loss is impossible.

An example illustrates the point. In United States v. Osang, 618 F.

App'x 133 (3d Cir. 2015), a defendant engaged in an implausible “black

money” fraud, where he presented black paper, claiming it was money

coated in paste; he said the paste could be removed with a cleaning agent

to reveal usable bills. Id. at 134. The defendant offered the cleaning

agent and asked for $ 100,000. The intended victim, however, was a

government informant. The defendant received nothing. Yet, under the

commentary, we must say of this scenario “the loss was $ 100,000.” See

id. at 135. This is not a reasonable use of the English language, as

required by Kisor. To the contrary, the only way this statement makes

any sense is by adding the word “intended” to it, thereby saying “the

intended loss was $ 100,000.” But “intended” appears nowhere in the

guideline text. Adding it is literally an expansion of the text, not an

interpretation of it. Even a court cannot interpret a text by “read[ing] an

absent word into” it. Riccio v. Sentry Credit, Inc., 954 F.3d 582, 589 (3d

Cir. 2020) (quoting Lamie v. United States Trustee, 540 U.S. 526, 538

(2004)). Neither can the Sentencing Commission.

CONCLUSION

Based on the foregoing, this Court should grant this request for a Writ

of Certiorari and remand to the Court of Appeals for the Eleventh Circuit.

Done this

day of December 2023.

Trayone BM1

FCI Coleman Medium

P. O. Box 1032

Coleman, FL 33521

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.