United States of America v. Dajuan Gee

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 9, 2025
Decided July 9, 2025
Before
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 24-1380
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAJUAN GEE,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 1:21-CR-00277(8)
John F. Kness,
Judge.
O R D E R
DaJuan Gee pleaded guilty to wire fraud and aggravated identity theft. The
district court sentenced him to 54 months in prison and 3 years of supervised release.
Gee appeals, but his appointed lawyer asserts that the appeal is frivolous and moves to
withdraw. Anders v. California, 386 U.S. 738, 744 (1967). Counsel’s brief explains the
nature of the case and addresses the issues that a case of this kind might be expected to
involve. We notified Gee of counsel’s motion, and he did not respond. See C IR . R. 51(b).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-1380 Page 2
Because counsel’s brief appears thorough, we limit our review to the subjects that
counsel discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Two people hacked into a retail company’s computers and stole payment card
data belonging to customers. They sold the stolen data to Gee and others, collecting
nearly $4 million in Bitcoin.
In April 2021, a grand jury indicted Gee and 21 other purchasers for wire fraud
and identity theft. 18 U.S.C. §§ 1343, 1028A(a)(1). Gee pleaded guilty to the charges.
Under the written plea agreement, he admitted to purchasing data from at least 4,256
cards and to making a purchase with a counterfeit credit card.
Before sentencing, a probation officer prepared a presentence investigation
report (PSR) and calculated Gee’s sentencing range under the 2023 Guidelines Manual.
The officer calculated a total offense level of 24, driven by a 16-level increase under
U.S.S.G. § 2B1.1(b) based on a loss calculation of $2,128,000, reflecting the $500
minimum loss mandated by Application Note 3(F)(i) for each of the 4,256 cards.
With that total offense level of 24 and a criminal history category of II, the officer
calculated a guidelines range of 57 to 71 months in prison and 1 to 3 years of supervised
release. 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), (b)(2).
Gee objected to the PSR and argued that the Supreme Court’s decision in Kisor v.
Wilkie, 588 U.S. 558 (2019), diminished the deference owed to application notes under
Stinson v. United States, 508 U.S. 36, 38 (1993), which held that guidelines commentary is
authoritative unless plainly erroneous. Gee insisted that Kisor authorized deference to
an agency’s interpretation of a regulation only if the regulation is “genuinely
ambiguous.” 588 U.S. at 573. And he argued that the meaning of “loss” in § 2B1.1(b)
unambiguously meant “actual loss,” making deference to Application Note 3(F)(i)’s
$500 minimum loss amount inappropriate. He maintained that the actual loss amount
was at most $61,168 based on the information provided by the government,
corresponding to only a 6-level increase. He thus argued for a guidelines range of 18 to
24 months in prison (plus the consecutive 24-month sentence for aggravated identity
theft).
At the sentencing hearing, the district court overruled Gee’s objection and
applied the 16-level increase under Application Note 3(F)(i). The court first explained

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No. 24-1380 Page 3
that Kisor did not modify Stinson, and so the court had to defer to guidelines
commentary unless the commentary is plainly erroneous. Even if Kisor modified
Stinson, the court concluded that it would still apply the $500 per card loss amount
because Gee had stolen data from thousands of credit cards, a “huge burden” and
“obstacle” to calculating the loss amount per card. The court observed that each credit
card represented “a financial account tied to an individual” and thought attributing
$500 to each of those cards was a reasonable estimate of the loss. The court then
weighed the sentencing factors under 18 U.S.C. § 3553(a) and imposed a below-
guidelines total sentence of 54 months in prison—30 months for wire fraud, and a
consecutive 24 months for aggravated identity theft—and 3 years of supervised release.
Counsel first informs us that she consulted with Gee and confirmed that he does
not wish to challenge his guilty plea. Counsel thus 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 considers whether Gee could challenge the district court’s use of
Application Note 3(F)(i) to calculate the loss amount, and she correctly concludes that
our case law would foreclose any such argument. In United States v. White, we held that
Kisor does not modify Stinson, despite the existing disagreement among the circuits on
this question. 97 F.4th 532, 538–39 (7th Cir. 2024). Then in United States v. Johnson, we
rejected the argument of one of Gee’s co-defendants and held that Application
Note 3(F)(i), in particular, is neither inconsistent with, nor a plainly erroneous reading
of, § 2B1.1 under Stinson. 104 F.4th 662, 666–67 (7th Cir. 2024); see also United States v.
Ponle, 110 F.4th 958, 962–63 (7th Cir. 2024) (continuing to follow other application notes
defining “loss” under Stinson). It would be pointless for Gee to ask us to revisit this
question again.
Next, counsel rightly concludes that Gee could not dispute other aspects of the
court’s guidelines calculation. His total offense level was calculated by taking the base
offense level of 7, see U.S.S.G. § 2B1.1(a)(1), and adding the 16-level increase for the loss
amount, as well as two 2-level increases for involving 10 or more victims and
possessing or using device-making equipment, see id. § 2B1.1(b)(1)(I), (2)(A)(i),
(11)(A)(i). The offense level was then lowered three levels for demonstrating acceptance
of responsibility, see id. § 3E1.1, to arrive at a total offense level of 24. Gee incurred two
criminal history points, see id. § 4A1.1(c), establishing a criminal history category of II,
yielding the final range of 57 to 71 months’ imprisonment for wire fraud. The resulting
30-month sentence fell far short of the 20-year statutory maximum for that offense.

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No. 24-1380 Page 4
See 18 U.S.C. § 1343. And the aggravated identity theft conviction added a flat 24-month
sentence that must be served consecutively to the wire-fraud sentence. Id. § 1028A(a)(1),
(b)(2).
Finally, we agree with counsel that it would be frivolous for Gee to challenge the
substantive reasonableness of his resulting 54-month total sentence. A below-guidelines
prison term is presumptively reasonable, see United States v. Oregon, 58 F.4th 298, 302
(7th Cir. 2023), and Gee could not plausibly rebut that presumption. The district court
reasonably weighed the sentencing factors under 18 U.S.C. § 3553(a) by balancing the
mitigating factors (his family and employer support, difficult childhood, and remorse)
with the aggravating factors (the seriousness of the offenses and the cost to society) to
arrive at 30 months plus the statutorily mandated 24-month consecutive sentence.
Id. § 3553(a)(1)–(2).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.

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