“Victim” in § 2B1.1 After Kisor: Identity-Identification Use Independently Supports the 10-or-More Victims Enhancement

1. Introduction

Sampson Pearson, a financial advisor, executed a long-running fraud against clients of Northwestern Mutual by submitting unauthorized loan applications and annuity/policy disbursement requests in clients’ names, rerouting correspondence to himself, and directing proceeds into his personal bank account. To conceal the scheme, he provided false explanations and documentation to clients and made “lulling” payments using funds taken from others. He also filed false tax returns by failing to report the fraud proceeds.

A jury convicted Pearson of wire fraud (18 U.S.C. § 1343), aggravated identity theft (18 U.S.C. § 1028A(a)(1)), and filing false tax returns (26 U.S.C. § 7206(1)). At sentencing, the district court applied (1) the “10 or more victims” enhancement under U.S.S.G. § 2B1.1(b)(2)(A)(i) and (2) the obstruction enhancement under U.S.S.G. § 3C1.1, based on Pearson’s failure to appear for the originally scheduled jury selection. Pearson appealed the application of those two enhancements.

A central interpretive issue emerged because Pearson’s “victim” argument depended on the Sentencing Guidelines commentary, and the Fourth Circuit—after Kisor v. Wilkie and its own decision in United States v. Mitchell—now evaluates commentary deference through an ambiguity-first framework.

2. Summary of the Opinion

The Fourth Circuit affirmed. It held:

• Obstruction (§ 3C1.1): The district court did not clearly err in finding Pearson’s failure to appear for jury selection was willful, given Pearson’s later admission that he did not want to participate and his ability to attend other hearings with advance notice.
• 10+ victims (§ 2B1.1(b)(2)(A)(i)): Even assuming arguendo that the guideline term “victim” were ambiguous and one looked to commentary, the enhancement was justified under the commentary’s alternative definition of “victim” as “any individual whose means of identification was used unlawfully or without authority,” U.S.S.G. § 2B1.1 cmt. n.4(E). Trial evidence showed Pearson unlawfully used identifying information (names, policy/contract numbers, Social Security numbers, etc.) of at least ten clients.

3. Analysis

3.1. Precedents Cited (and Their Influence)

A. Deference to Guidelines Commentary After Kisor

• Kisor v. Wilkie, 588 U.S. 558 (2019): Recalibrated Auer-style deference by requiring that a regulation (or analogous text) be “genuinely ambiguous” before deference to an agency’s interpretation is even considered. The Fourth Circuit treats Guidelines commentary similarly: commentary is not automatically controlling.
• United States v. Mitchell, 120 F.4th 1233, 1240–41 (4th Cir. 2024): The key Fourth Circuit framework: courts defer to Guidelines commentary only when (1) the guideline text is genuinely ambiguous as applied to the dispute, (2) the commentary fits within the zone of ambiguity, and (3) the commentary’s character/context entitles it to deference. Pearson’s “victim” argument was assessed through this lens, undercutting reliance on older “commentary controls even if it diverges from ordinary meaning” approaches.

B. Out-of-Circuit “Reimbursed Losses = No Victim” Cases (and Why They Did Not Control)

• United States v. Kennedy, 554 F.3d 415 (3d Cir. 2009): Pearson cited this for the idea that reimbursed clients do not suffer “pecuniary loss” and thus are not “victims” under the commentary. The Fourth Circuit distinguished it as pre-Kisor and noted Kennedy itself conceded reimbursed clients satisfy a commonsense definition of “victim.”
• United States v. Conner, 537 F.3d 480 (5th Cir. 2008); United States v. Yagar, 404 F.3d 967 (6th Cir. 2005): Likewise invoked by Pearson to limit “victims” to those suffering net pecuniary loss. The Fourth Circuit treated these as analytically secondary because, post-Kisor, the first inquiry is whether the guideline text is ambiguous—not whether commentary can override ordinary meaning.

C. Fourth Circuit Authorities on “Victim” and Alternative Definitions

• United States v. Terry, 142 F.3d 702, 710 (4th Cir. 1998): Used to support the “ordinary or natural meaning” of “victim” as “a person who is the object of a crime or tort” (Black’s Law Dictionary). This informed the panel’s view that “victim” in § 2B1.1 likely includes targeted clients even if losses are later reimbursed.
• United States v. Otuya, 720 F.3d 183, 192 (4th Cir. 2013): Critical to the holding. The court relied on Otuya for the proposition that § 2B1.1’s number-of-victims enhancement may be affirmed based on the alternative “means of identification” definition of “victim” in commentary, without resolving whether the pecuniary-loss definition applies.

D. Standards of Review and Harmless Error Principles

• United States v. Chandia, 675 F.3d 329, 337 (4th Cir. 2012): Provided the review framework: factual findings for clear error; guideline interpretation de novo.
• Williams v. United States, 503 U.S. 193, 203 (1992); Fed. R. Cr. P. 52(a): The panel emphasized that even if obstruction were misapplied, the error would be harmless because the district court varied downward to “negate” the enhancement’s effect before selecting the sentence.

E. Guidelines-Version Authorities

• United States v. Lewis, 606 F.3d 193, 198–99 (4th Cir. 2010); United States v. Foreman, 560 F. App’x 219, 220 n.1 (4th Cir. 2014): Cited for using the Guidelines Manual in effect at sentencing (here, 2021).

3.2. Legal Reasoning

A. Obstruction of Justice (§ 3C1.1): Willfulness as a Fact Question

The dispute was not legal scope (Pearson conceded § 3C1.1 can apply to willful failure to appear), but factual willfulness. The district court credited evidence of intent:

• Pearson’s later statement that he “didn’t want to participate in the trial at all.”
• His demonstrated ability to appear at other hearings.
• Advance notice (more than a month) of the jury selection date.

On that record, the Fourth Circuit held the district court’s willfulness finding was not clearly erroneous. The panel’s added harmless-error discussion reinforces a practical sentencing lesson: when a district court expressly “neutralizes” a contested enhancement through a variance and then sentences from the post-variance range, appellate reversal becomes unlikely absent some independent procedural flaw.

B. “10 or More Victims” (§ 2B1.1(b)(2)(A)(i)): Two Independent Paths to Affirmance

Path 1 (suggested but not necessary): “Victim” likely unambiguous under ordinary meaning

Applying Mitchell’s Kisor-based approach, the panel indicated it was “inclined to think” § 2B1.1(b)(2)(A)(i) is plain: “victim” naturally covers persons targeted by the fraud (Pearson’s clients). The court emphasized nothing in the guideline’s use of “victims” suggests an exclusion for temporary losses later reimbursed.

Path 2 (the actual holding): Even if ambiguous, commentary n.4(E) independently applies

The court ultimately avoided deciding whether “victim” is ambiguous or whether reimbursed clients count under the pecuniary-loss definition, because a separate commentary definition squarely fit the facts:

• U.S.S.G. § 2B1.1 cmt. n.4(E): “victim” includes “any individual whose means of identification was used unlawfully or without authority.”
• “Means of identification” is defined by 18 U.S.C. § 1028(d)(7) (incorporated by § 2B1.1 cmt. n.1) as any name or number used to identify a specific individual.

Trial evidence established Pearson used at least ten clients’ identifying information—names, policy/contract numbers, Social Security numbers, and other identifiers—to submit fraudulent applications and requests. Because Pearson did not meaningfully contest that alternative definition, the enhancement was affirmed “on this ground alone.”

3.3. Impact

• Reframing “victim” litigation post-Kisor: The opinion signals that in the Fourth Circuit, arguments built solely on commentary definitions will face a threshold ambiguity inquiry under Mitchell. Defendants can no longer assume commentary definitions are automatically controlling.
• Identity-theft facts can make the 10+ victim enhancement easier to prove: Where the offense involves unauthorized use of identifying information, courts can count victims under § 2B1.1 cmt. n.4(E) even if financial institutions reimburse account holders. This reduces the practical significance of “net pecuniary loss” disputes in many fraud cases involving identity misuse.
• Sentencing-record strategy: The panel’s harmless-error discussion underscores that a district court’s explicit alternative rationale (e.g., a variance offsetting an enhancement) can insulate the sentence from reversal.
• Doctrinal development even in unpublished decisions: Although nonprecedential, the opinion illustrates how the Fourth Circuit is operationalizing Kisor/Mitchell in Guidelines cases—especially where commentary supplies key definitional content (like “victim” in § 2B1.1).

4. Complex Concepts Simplified

• “Guidelines enhancement”: A rule that increases the advisory sentencing range when specific facts are found (e.g., number of victims, obstruction).
• “Willfully obstructing” (§ 3C1.1): Acting intentionally to impede the court process. Here, intentionally not showing up for jury selection qualifies if the failure to appear is deliberate rather than accidental.
• “Victim” under § 2B1.1: The guideline text does not define “victim.” Commentary supplies definitions, including (a) persons suffering “actual loss” (pecuniary harm) and (b) persons whose identifying information was used without authorization. The court relied on the second definition.
• “Means of identification” (18 U.S.C. § 1028(d)(7)): Identifiers like a name, Social Security number, or account/policy number used (alone or with other info) to identify a person.
• Kisor/Mitchell “ambiguity-first” deference: Courts consult commentary as an interpretive aid only if the guideline text is genuinely unclear for the issue at hand.
• “Harmless error”: Even if the court made a mistake in calculating the guideline range, an appellate court won’t remand if the mistake did not affect the sentence actually chosen.

5. Conclusion

United States v. Sampson Pearson affirms two core sentencing determinations: (1) a deliberate failure to appear for jury selection supports the obstruction enhancement, and (2) the “10 or more victims” enhancement is properly applied where at least ten individuals’ identifying information was used unlawfully or without authority. More broadly, the opinion illustrates the Fourth Circuit’s post-Kisor insistence—via United States v. Mitchell—that Guidelines commentary does not automatically govern unless the guideline text is genuinely ambiguous, while also showing that, in identity-misuse frauds, the alternative “means of identification” victim definition can make the number-of-victims enhancement straightforward even when monetary losses are later reimbursed.