The Sixth Circuit has twice rejected challenges to the Government’s proof of usability of an unauthorized access device at sentencing (determined under U.S.S.G. § 2B1.1). In both cases, defendants, relying on United States v. Onyesoh, 674 F.3d 1157 (9th Cir. 2013), argued that the Government must establish the “usability” of an access device when calculating loss. In Onyesoh, the Ninth Circuit held that the usability of some access devices may not be readily apparent. There, the Government conceded that “credit card numbers that had expired 35 years ago and were useless . . . would not be covered under the statute.” Id. at 1160. Given that concession and after searching the record, the Ninth Circuit found no evidence to support the usability of certain credit card numbers that “had been expired for some three years” and “no showing Defendant ever took steps or attempted to use the expired numbers.” Id.
In United States v. Vysniauskas, 11-2503 (6th Cir. January 7, 2015), the Sixth Circuit nominally assumed without deciding that the Government must establish usability consistent with Onyesoh. Like Onyesoh, Vysniauskas challenged only the addition of certain access devices in the computation of his sentence. But unlike Onyesoh, the Sixth Circuit did not require any evidence of the usability of the challenged access devices. Instead, the Sixth Circuit relied on the district court’s finding that the challenged access devices were associated with the overall fraudulent scheme because “they helped provide a cover of ordinary activity that lowered the banks’ suspicions of the fraudulent withdrawals.” Vysniauskas at 16. The Sixth Circuit held that such evidence justified the inclusion of those access devices when determining the appropriate loss calculation.
In United States v.Beuns, 14-3326 (6th Cir. June 8, 2015), the Sixth Circuit again assumed without deciding the validity of Onyesoh. In Beuns’ sentencing memorandum, he conceded that he had “embossed and encoded [the contested numbers] on plastic cards,” then “attempted to purchase merchandise with the counterfeit cards.” Beuns at 5. That concession was fatal to Beun’s argument even under Onyesoh.
In Beuns, the panel also expressed some reservation about the validity of Onyesoh by noting that the Ninth Circuit subsequently upheld a sentence (in an unpublished decision) on apparently less evidence than Onyesoh would require. See UnitedStates v. Tien Troung Nguyen, 543 F. App’x. 715 (9th Cir. Cal. 2013). But there is no evidence from the Nguyen decision that the Ninth Circuit considered Onyesoh. Just as the Beuns panel did not cite Vysniauskas, the Nguyen did not cite Onyesoh.
The Onyesoh decision invites a fact-specific challenge to the calculation of unusable access devices when calculating loss at sentencing. Counsel should consider whether the Government has evidence of usability (or actual use) when presenting sentencing arguments and subsequently on appeal.