United States v. Kenneth F. Yellowe

Opinion by Judge RYMER.

This appeal requires us to decide whether Application Note 4 to U.S.S.G. § 2B1.1, providing that “loss [in cases of fraud] includes any unauthorized charges made with stolen credit cards, but in no event less than $100 per card,” applies to unauthorized use of credit card numbers as well as the card itself. We hold that it does.

Kenneth Yellowe appeals his sentence after his conviction following a plea of guilty to conspiracy to possess unauthorized access devices and use unauthorized access devices to obtain goods and services in violation of 18 U.S.C. § 1029 (a)(2), (a)(3), and (b)(2). His conviction arises from a scheme to make unauthorized use of over 8,500 credit card numbers. The district court had jurisdiction pursuant to 18 U.S.C. § 3231 . This court has jurisdiction over Yellowe’s timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 . We affirm.

I

Yellowe owned a telemarketing company in Houston, Texas. In November, 1992, he spoke to Francisco Rivera about a scheme to use the credit card numbers of his old customers. Unbeknownst to Yellowe, Rivera taped that conversation, gave it to the Secret Service, and then cooperated with the…