Abdoulaye Barry and his codefendants operated a scheme involving stolen credit cards and fraudulent business memberships at a warehouse store to purchase over $2 million in cigarettes. Barry was the primary account holder for two business memberships and a secondary member on two others, while also using stolen credit cards shared with his co-conspirators. After his codefendants pleaded guilty, Barry went to trial and was convicted of credit card fraud and aggravated identity theft. At sentencing, the district court held Barry accountable for the total loss of over $539,000 caused by the entire group, including transactions made by codefendants using the same cards and memberships. The court reasoned that the existence of a conspiracy meant Barry was responsible for all acts within that conspiracy. Barry appealed, arguing he should only be liable for the specific amount he personally caused.
The Eleventh Circuit held that the district court committed a legal error by failing to distinguish between the scope of the entire conspiracy and the scope of the specific criminal activity Barry jointly undertook. Under the Sentencing Guidelines, a defendant is accountable for the conduct of others only if it was within the scope of the jointly undertaken activity, in furtherance of that activity, and reasonably foreseeable. The court explained that a conspiracy can be broader than the specific acts a defendant agreed to undertake. Citing United States v. Medina and United States v. Hunter, the court emphasized that a sentencing judge must make individualized findings concerning the scope of the defendant's involvement before imputing the acts of others. In this case, the record showed that while Barry was a primary account holder for two memberships, there was insufficient evidence to prove he accompanied or knew of all the secondary members who used those accounts. Similarly, while the group used shared credit cards, the evidence did not establish that Barry knew of the specific transactions made by others. The court rejected the dissent's view that the district court's statement equating conspiracy with jointly undertaken activity was a factual finding; instead, it was a legal error that required vacatur because the government failed to prove Barry's liability for the full loss amount with reliable and specific evidence.
The sentence is vacated, and the case is remanded to the district court for resentencing. On remand, the district court must make individualized findings regarding the specific scope of the criminal activity Barry undertook and determine which conspiratorial conduct was reasonably foreseeable to him before calculating the loss amount. The court also directed the district court to correct a clerical error in the criminal judgment where the statute for aggravated identity theft was incorrectly cited. Additionally, the restitution order must be reconsidered to ensure it matches the individual loss amount proximately caused by Barry.