Peyton

MEMORANDUM *

Fatima Peyton was charged and convicted of eight counts of using an unauthorized or counterfeit access device with intent to defraud under 18 U.S.C. § 1029 . The district court imposed a sentence of fifteen months in prison. The charges stem from the fraudulent acquisition of American Express credit cards in the names of innocent third parties and from illegal purchases made using those cards. Peyton appeals, alleging a violation of her Fifth Amendment right to indictment by grand jury; charging error to the exclusion of some evidence and the inclusion of other evidence; and assigning error to the district court’s refusal to grant her a minor role downward departure. The government cross-appeals, faulting the court’s refusal to consider relevant conduct evidence and improper failure to group the evidence for *657 sentencing purposes. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §§ 3731 and 3742. Because the parties are familiar with the factual and procedural background, we do not detail it here. We affirm in part, reverse and vacate in part, and remand for resentencing.

I.

Variance From or Constructive Amendment of the Indictment

We review the…