Onyesoh

Introduction

This appeal addresses access device fraud under 18 U.S.C. § 1029 and, specifically, whether the Government must prove the usability of an expired credit card number in order for a district court to enhance a sentence. We find evidence of usability is required and vacate the sentence because the Government failed to carry its burden.

Background

In May 2009, postal agents conducted a search of Defendant-Appellant Leslie Onyesoh’s (“Defendant”) home resulting in the discovery of, among other things, stolen mail, credit cards, and a spreadsheet containing 500 expired credit card numbers. Defendant pled guilty to possession of stolen mail and access device fraud, including the knowing possession of “fifteen or more ... unauthorized access devices” with the intent to defraud. 18 U.S.C. § 1029 (a)(3). An unauthorized access device is defined as “any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud.” § 1029(e)(3). Under the statute’s definition of “access device,” the device must be capable of obtaining “money, goods, services, or any other thing of value.” § 1029(e)(1).

The presentence report concluded that the…