el enhancement is applied if the offense "involved 10 or more victims." U.S.S.G. § 2B1.1(b)(2)(A). A "victim," for "[c]ases [i]nvolving [m]eans of [i]dentification," is defined in relevant part as "any individual whose means of identification was used unlawfully or without authority." U.S.S.G. § 2B1.1 cmt. n. 4(E). "`Means of identification' has the meaning given that term in
18 U.S.C. § 1028(d)(7), except that such means of identification shall be of an actual (i.e., not fictitious) individual." U.S.S.G. § 2B1.1 cmt. n. 1. And under
18 U.S.C. § 1028(d)(7), "means of identification" includes,
inter alia, "any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any . . . name, social security number, date of birth, [and] official State or government issued driver's license or identification number."
18 U.S.C. § 1028(d)(7).
Pursuant to these definitions, we see no clear error in the District Court's reliance on Exhibit A to conclude that Yummi's scheme involved ten or more "victims." As noted, Exhibit A to the Government's January 21, 2010 letter is a compilation of various emails sent from and received by the JJRado email account. Yummi disputes neither his ownership of the account nor the authenticity of the emails. Those emails, partially redacted to protect those involved, identify more than ten individuals through "means of identification" such as names, addresses, birth dates, and credit card numbers. The District Court did not clearly err in determining that these individuals constitute "victims" under a "sufficient indicia of reliability" standard, given that Yummi, at the very least, "used" these identities "without authority" by either receiving or transferring their "means of identification" through the JJRado email account. Accordingly, we affirm the District Court on this point.
This appeal thus presents a stark contrast to the case cited by Yummi, United States v. Miele, 989 F.2d 659 (3d Cir. 1993), in which we held that the unsworn, uncorroborated, and inconsistent testimony of a drug-addicted co-conspirator did not meet the "sufficient indicia of reliability" standard. See id. at 665-66.
B.
Yummi next objects to the District Court's interpretation of Application Note 2 of § 2B1.6 of the Guidelines. That note provides that "[i]f 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." U.S.S.G. § 2B1.6 cmt. n. 2 (emphasis added). Yummi argues that since he was sentenced for both aggravated identity theft and conspiracy to commit bank fraud, the application note prohibits the consideration of any specific offense characteristics when calculating his range under the Guidelines.
Yummi's proffered interpretation is contradicted by the plain text of Application Note 2. The note does not, as Yummi contends, prohibit the application of all specific offense characteristics, but rather only those specific offense characteristics that are based on "the transfer, possession, or use of a means of identification." Here, the District Court granted upward adjustments for intended loss, the use of sophisticated means, and the number of victims. None of these specific offense characteristics pertain to "the transfer, possession, or use of a means of identification," and thus are not forbidden by the text of the note. We therefore hold that the District Court did not erroneously consider any special offense characteristics in sentencing Yummi.
As the Government points out, the District Court did not grant an upward adjustment pursuant to § 2B1.1(b)(10), which does pertain to "the transfer, possession, or use of a means of identification" and thus would be precluded from consideration as a specific offense characteristic pursuant to Application Note 2 of § 2B1.6 of the Guidelines.
Yummi argues that the putative procedural deficiencies preclude effective reasonableness review in this case. See Appellant's Brief at 17-18. For the reasons discussed, we see no procedural error in the District Court's sentencing of Yummi. We thus reach the issue of reasonableness and hold that the District Court did not abuse its discretion by imposing a substantially unreasonable sentence. The District Court meaningfully considered the 18 U.S.C. § 3553(a) factors and sufficiently stated its reasons for the sentence imposed, fashioning a sentence appropriate to the circumstances of Yummi's case.
IV.
For the foregoing reasons, we will affirm the judgment of sentence.