United States of America v. Andrew Darien McLeod

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 27, 2025
Decided May 28, 2025
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 24-1846
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW DARIEN MCLEOD,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:21-CR-00277-2
John F. Kness,
Judge.
O R D E R
Andrew McLeod pleaded guilty to wire fraud and aggravated identity theft, and
the district judge imposed 74 months’ imprisonment and 36 months’ supervised release.
McLeod filed a notice of appeal, but his appointed lawyer asserts that the appeal is
frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 744 (1967). We
notified McLeod of counsel’s motion, and he did not respond to it. See C IR . R. 51(b).
Counsel’s brief explains the nature of the case and addresses potential issues that an
appeal of this kind would typically involve. Because counsel’s analysis appears
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-1846 Page 2
thorough, we limit our review to the subjects that counsel discusses. See United States v.
Bey, 748 F.3d 774, 776 (7th Cir. 2014). We grant the motion and dismiss the appeal.
Between February 2017 and November 2019, McLeod purchased data from
thousands of stolen payment cards and was later indicted on one count of wire fraud,
18 U.S.C. § 1343, and one count of aggravated identity theft, 18 U.S.C. § 1028A(a)(1).
McLeod pleaded guilty to these charges. Under the written plea agreement, McLeod
admitted to purchasing data from 9,343 payment cards, and that he attempted to
purchase data from 33,350 additional payment cards.
Before sentencing, a probation officer prepared a presentence investigation
report (PSR) and calculated McLeod’s sentencing range under the 2021 Guidelines. The
PSR placed the total offense level at 26, which included an 18-level enhancement
assessed under U.S.S.G. § 2B1.1(b)(1) based on an intended loss calculation of
$4,671,500. In calculating the loss amount, the PSR applied Application Note 3(F)(i) to
§ 2B1.1, which states: “In a case involving any counterfeit access device or unauthorized
access device, loss includes any unauthorized charges made with the counterfeit access
device or unauthorized access device and shall be not less than $500 per access device.”
The $500 minimum loss multiplied by the 9,343 stolen payment card accounts that
McLeod possessed equaled $4,671,500.
Based on a total offense level of 26, and a criminal history category of III, the PSR
calculated a guidelines range of 78 to 97 months’ imprisonment on the wire fraud
conviction. The conviction for aggravated identity theft carried a mandatory term of
24 months’ imprisonment to be served consecutively to the term of imprisonment for
the wire fraud conviction. See 18 U.S.C. § 1028A(a)(1). The PSR also calculated a term of
24 to 36 months’ supervised release.
McLeod objected to the PSR’s guidelines calculation. He argued that the
Supreme Court’s decision in Kisor v. Wilkie, 588 U.S. 558 (2019), modified the standard
set forth by the Court in Stinson v. United States, 508 U.S. 36 (1993), that courts must
defer to guidelines commentary so long as it is not inconsistent with the Guidelines.
Under Kisor, McLeod contended that Note 3(F)(i) is not entitled to deference as an
interpretation of § 2B1.1 because the term ‘‘loss’’ unambiguously meant the actual loss
suffered, and the $500 multiplier overstated that loss. He thus insisted that the loss
amount was limited to the identifiable loss of $560,580 based on the data collected by
the government from the cards’ issuing financial institutions. Such a loss calculation
would have corresponded to a 14-level enhancement, yielding a guidelines range of

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No. 24-1846 Page 3
51 to 63 months’ imprisonment on the wire fraud conviction (plus the mandatory,
consecutive 24-month sentence on the conviction for aggravated identity theft).
The district judge overruled McLeod’s objection to the $500 multiplier and
applied the 18-level enhancement under § 2B1.1. The judge first determined that Kisor
did not overrule Stinson. And under Stinson, the judge explained, the commentary from
the Guidelines is authoritative unless it conflicts with the plain language of a guideline
or statute. Even if application of the $500 per card loss amount was not binding, the
judge concluded that he would still find that Note 3(F)(i) applies based on evidence
presented by the government. Specifically, the evidence showed that approximately
58 payment card transactions by McLeod exceeded $500. After applying the $500
multiplier under Note 3(F)(i), the judge calculated an advisory guidelines range of 78 to
97 months’ imprisonment for the wire fraud conviction. The district judge weighed the
sentencing factors under 18 U.S.C. § 3553(a), and imposed a below-guidelines sentence
of 74 months’ imprisonment: 50 months for wire fraud, and a consecutive 24 months for
aggravated identity theft. The judge imposed 36 months’ supervised release.
In his brief, counsel states that he consulted with McLeod and confirmed that
McLeod does not wish to withdraw the guilty plea, so counsel properly omits
discussion of potential arguments related to the guilty plea or plea colloquy. See United
States v. Larry, 104 F.4th 1020, 1022 (7th Cir. 2024).
Counsel first considers whether McLeod could plausibly challenge the district
judge’s decision to defer to Note 3(F)(i) to determine the loss amount, and he correctly
concludes that we have foreclosed such a challenge. See United States v. White, 97 F.4th
532 (2024); United States v. Johnson, 104 F.4th 662 (7th Cir. 2024). In White, we concluded
that Kisor did not disturb Stinson and thus, an application note interpreting a guideline
is binding authority ”unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that guideline.” White 97 F.4th at
537 (quoting Stinson, 508 U.S. at 38). And in Johnson we held that Note 3(F)(i) is neither
inconsistent with nor a plainly erroneous reading of § 2B1.1, so Note 3(F)(i) remains
binding authority. 104 F.4th at 666–67.
Even if Note 3(F)(i) were not binding, however, any possible error in its
application would be harmless. See United States v. Asbury, 27 F.4th 576, 581 (7th Cir.
2022). The district judge stated that he would impose the same sentence on remand
even if he was wrong to treat Note 3(F)(i) as authoritative. The judge explained that
there was significant harm from the total number of stolen card accounts that McLeod

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had purchased and that he had considered McLeod’s similar past criminal conduct. But,
the judge said, the decision to impose a sentence below the guidelines range was
intended to account for McLeod’s relative culpability, and he would not impose a lower
sentence if the loss amount and accompanying guidelines range were lower.
Counsel next rightly concludes that McLeod could not raise a nonfrivolous
challenge to the district judge’s guidelines calculation. The judge correctly determined
that McLeod’s guidelines range was 78 to 97 months for wire fraud (based on a total
offense level of 26 and a criminal history category of III), and 24 months for aggravated
identity theft that must be served consecutively to the sentence for wire fraud,
see 18 U.S.C. § 1028A(a)(1). And the judge’s imposition of a 50-month sentence for wire
fraud did not exceed the statutory maximum of 20 years. See 18 U.S.C. § 1343.
Finally, counsel considers, and appropriately rejects, any argument challenging
the substantive reasonableness of the sentence. The judge imposed a below-guidelines
sentence, and so we would presume that it is reasonable. See United States v. Wehrle,
985 F.3d 549, 557 (7th Cir. 2021). Nothing in the record rebuts that presumption. The
judge adequately justified the sentence based on the factors set forth in 18 U.S.C.
§ 3553(a). He reasonably assessed McLeod’s personal history and characteristics (noting
that McLeod’s daughter and girlfriend provide a significant support system), the
seriousness of the offense (McLeod purchased data from more than 9,000 stolen
payment cards), and mitigating factors (noting that, before this conviction, McLeod had
not spent significant time in prison). We thus agree with counsel that McLeod could not
overcome the presumption that his below-guidelines sentence was reasonable.
See United States v. Holder, 94 F.4th 695, 700 (7th Cir. 2024).
Therefore, we GRANT counsel’s motion to withdraw and DISMISS the appeal.

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