United States of America v. Patrick Barkers-Woode

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 22-2355 & 22-2621
_______________
UNITED STATES OF AMERICA
v.
PATRICK BARKERS-WOODE,
Appellant in No. 22-2355
UNITED STATES OF AMERICA
v.
NANA MENSAH,
Appellant in No. 22-2621
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Nos. 1:17-cr-00357-005 & 1:17-cr-00357-002)
District Judges: Honorable Jennifer P. Wilson
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on January 31, 2025
Before: KRAUSE, PORTER, and ROTH, Circuit Judges.

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(Filed: May 7, 2025)
_______________
OPINION OF THE COURT
_______________
Julie A. McGrain
Federal Public Defender District of New Jersey
Office of Federal Public Defender
800-840 Cooper Street
Suite 350
Camden, NJ 08102
Counsel for Appellant Patrick Barkers-Woode
Ray Kim
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant Nana Mensah
Scott R. Ford
Office of United States Attorney
Middle District of Pennsylvania
Sylvia H. Rambo United States Courthouse
1501 N 6th Street, 2nd Floor
P.O. Box 202
Harrisburg, PA 17102
Counsel for Appellee

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PORTER, Circuit Judge.
A jury convicted Patrick Barkers-Woode and Nana
Mensah of mail fraud, aggravated identity theft, conspiracy to
commit mail fraud, and conspiracy to commit aggravated
identity theft. Both Barkers-Woode and Mensah raise several
challenges related to their sentencings. Barkers-Woode
additionally challenges the District Court’s decision to admit
certain evidence during his trial. For the reasons below, we will
reverse and remand in part and affirm in part.
I
At the time of the conspiracy, Sprint Corporation ran a
sales promotion that offered a smartphone to new cellular
service customers at no upfront cost. Sprint planned to recoup
the upfront costs of the promotion throughout the life of the
cellular service contract. Customers with good credit could
sign up over the phone or the internet without ever entering a
Sprint store. Sprint then mailed the promotional smartphone to
the customer’s address that he provided at sign up and
forwarded shipment tracking information.
The conspiracy’s fraud was straightforward.
Conspiracy members in Ghana used the internet to obtain the
necessary personal information—name, date of birth, social
security number, etc.—of unrelated and unknowing
individuals. Using that information, the conspirators signed
these individuals up as new Sprint customers and arranged for
the promotional smartphones to be sent to vacant homes.
Barkers-Woode, Mensah, and others tracked, retrieved, and
delivered the smartphones to a buyer. At some point, Mensah
began placing fraudulent orders himself. All told, the
conspiracy was responsible for 274 orders of 833 smartphones

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totaling $357,565.92 in actual loss and $595,399.76 in
intended loss.1 The government identified 248 individuals
whose identities had been misused in the fraud.
Barkers-Woode and Mensah were tried and found guilty
by a jury on November 22, 2019. On July 13, 2022, Barkers-
Woode received a within-guidelines sentence of 111 months’
imprisonment with two years of supervised release. And on
August 30, 2022, Mensah received a below-guidelines
sentence of 99 months’ imprisonment with three years of
supervised release. Barkers-Woode and Mensah’s separate
appeals followed and were consolidated for our resolution.
II
The District Court had subject matter jurisdiction under
18 U.S.C. § 3231 and we have jurisdiction over its final
judgment under 28 U.S.C. § 1291.
III
Barkers-Woode and Mensah present several issues on
appeal. First, both Barkers-Woode and Mensah argue that the
District Court erred by applying a 14-point enhancement under
U.S.S.G. § 2B1.1(b)(1)(H) based on a calculated intended loss
of $595,399.76 in light of this Court’s decision in United States
v. Banks, 55 F.4th 246 (3d Cir. 2022). Second, both Barkers-
Woode and Mensah argue that the District Court erred by
applying a 2-point enhancement under U.S.S.G.
§ 2B1.1(b)(2)(A)(i) based on the number of victims. Third and
fourth, Barkers-Woode separately argues that the District
1 Sprint was able to cancel several shipments of smartphones
after learning about the fraud.

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Court erred by admitting evidence in violation of Federal Rule
of Evidence 404(b)(1) and that the District Court violated his
Sixth Amendment right to counsel by requiring him to proceed
pro se without sufficiently apprising him of the risks of doing
so per Faretta v. California, 422 U.S. 806 (1975). Fifth,
Mensah separately argues that the District Court erred by
applying sentencing enhancements dependent on facts not
charged in his indictment and not proved beyond a reasonable
doubt to a jury. We address each in turn.
A
We review non-preserved challenges to the District
Court’s legal interpretation of the Sentencing Guidelines for
plain error even if a change in law retrospectively exposes the
error during the direct appellate review process. Henderson v.
United States, 568 U.S. 266, 273–74 (2013). Under plain error
review, we can only grant relief if “(1) the District Court
committed an ‘error,’ (2) it was ‘plain,’ and (3) it affected the
‘substantial rights’ of the defendant.” United States v. Plotts,
359 F.3d 247, 249 (3d Cir. 2004) (quoting United States v.
Olano, 507 U.S. 725, 732 (1993)). As the government
concedes, the District Court’s calculation of “loss” based on
“intended loss” for the purposes of an offense characteristic
enhancement under U.S.S.G. § 2B1.1(b)(1) was plain error in
light of our decision in Banks.
Barkers-Woode’s and Mensah’s Presentence
Investigation Reports calculated that the conspiracy was
responsible for an actual loss of $357,565.92 and an intended
loss of $595.399.76. At their respective sentencings, the
District Court applied a 14-point enhancement based on an
intended loss greater than $550,000. USSG § 2B1.1(b)(1)(H).
That was correct under then-applicable case law but not in light

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of Banks, where we held that “loss” within the meaning of
§ 2B1.1(b)(1) means actual loss, not intended loss. 55 F.4th at
257. Application of § 2B1.1(b)(1) based on intended loss was
plain error that affected Barkers-Woode’s and Mensah’s
substantial rights, so we will remand for resentencing on this
issue.2
B
We exercise plenary review over properly preserved
challenges to the District Court’s legal interpretation of the
Sentencing Guidelines. United States v. Grier, 475 F.3d 556,
570 (3d Cir. 2007) (en banc). Under that standard, the District
Court did not err by defining “victim” under U.S.S.G.
§ 2B1.1(b)(2) to include individuals whose identities are stolen
because victims of identity theft are encompassed within the
plain meaning of “victim.” See, e.g., Victim, Black’s Law
Dictionary (12th ed. 2024) (defining “victim” as “a person
harmed by a crime, tort, or other wrong.”). Recognizing that
victims of identity theft are “victims” for the purposes of
U.S.S.G. § 2B1.1(b)(2) does not break new ground. In United
States v. Kennedy, this Court previously recognized that
victims of identity theft are part of the “commonsense or
dictionary definition” of “victim.” 554 F.3d 415, 419 (3d Cir.
2009), abrogated on other grounds by United States v.
Douglas, 885 F.3d 124 (3d Cir. 2018) (en banc).
2 Because the District Court already calculated actual loss for
Barkers-Woode, Barkers-Woode’s Appendix (“B-W’s App.”)
at 791, and Mensah, Mensah’s Appendix at 694, all that
remains for the District Court on remand is to recalculate the
Guidelines range using the actual loss amount and to
resentence accordingly.

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Despite this, our holding in Kennedy stated that
“victim” within the meaning of the Guidelines excludes those
who do not suffer pecuniary harm and that rule plainly applies
to individuals whose identities were stolen but cannot
demonstrate any resultant pecuniary harm. Id. But Kennedy
was decided under a regime of deference to the Guidelines’
commentary that we have since overruled, and it interpreted a
version of the Guidelines that have since been materially
amended, so Kennedy’s pecuniary-harm requirement no longer
controls.
In Kennedy we adopted an interpretation of the word
victim that was “hard to reconcile with commonsense notions
of what it means to be a victim” because “our task . . . [wa]s to
adhere to the Guidelines and its Applications Notes” Id. at 422.
In United States v. Nasir, this Court rejected that understanding
of our role. 17 F.4th 459, 470–71 (3d Cir. 2021) (en banc).
Instead, we now “exhaust all the traditional tools of
construction” before deciding that a Guideline provision is
“genuinely ambiguous.” Id. at 471 (quoting Kisor v. Wilkie,
588 U.S. 558, 575 (2019)). And even then, “there are limits to
deference.” Id. Indeed, it is hard to see how we could reach any
other result today than that “victim” in § 2B1.1 means what it
is generally understood to mean. See Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 69
(2012) (explaining that the idea that “[w]ords are to be
understood in the ordinary, everyday meanings—unless the
context indicates that they bear a technical sense . . . is the most
fundamental semantic rule of interpretation.”).
Even assuming that our deference regime had not
changed, the fact that the Guidelines have been materially
amended would compel us to reach the same result—“victim”
in § 2B1.1 includes victims of identity theft. When we decided

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Kennedy, Application Notes 1 and 2 together defined “victim”
as “(A) any person who sustained [the reasonably foreseeable
pecuniary harm that resulted from the offense] or (B) any
individual who sustained bodily injury as a result of the
offense.” USSG § 2B1.1, cmt. nn.1–2 (2009). The United
States Sentencing Commission quickly and explicitly rebuked
Kennedy by promulgating Application Note 4(E), which
expanded the definition of victim to include “any individual
whose means of identification was used unlawfully or without
authority.” United States Sentencing Commission,
Amendment 726 (effective Nov. 1, 2009),
https://www.ussc.gov/guidelines/amendment/726.
Barkers-Woode and Mensah argue that deference to the
Guidelines’ amended definition of the term “victim” is not
warranted under Nasir. But we need not decide whether
deference is appropriate because we independently hold that
“victim” is not ambiguous as to whether it includes victims of
identity theft.
C
We review a District Court’s decision to admit evidence
for abuse of discretion, meaning that we will reverse only if its
decision was “clearly contrary to reason and not justified by
the evidence.” United States v. Butch, 256 F.3d 171, 175 (3d
Cir. 2001) (quoting United States v. Balter, 91 F.3d 427, 436
(3d Cir. 1996)). Under that deferential standard, the District
Court did not err by admitting testimony from a co-conspirator
about a similar but non-charged scheme to defraud Walmart
since it directly proved a conspiratorial agreement among
Barkers-Woode and his other conspirators.

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Federal Rule of Evidence 404(b)(1) prohibits
introducing evidence of “any other crime, wrong, or act” to
demonstrate character and action in conformity with that
character. Fed. R. Evid. 404(b)(1). The threshold question of
every 404(b) objection is whether the proffered bad act
qualifies as an “other” act that must be analyzed under Rule
404(b) or an “intrinsic” act that is never analyzed under Rule
404(b). United States v. Green, 617 F.3d 233, 248–49 (3d Cir.
2010). Under our caselaw, an “intrinsic” act either “directly
proves the charged offense” or “facilitate[s] the commission
of” and “is performed contemporaneously with the charged
crime.” Id (internal quotations omitted) (quoting United States
v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)). Thus, “the
nature and scope of the evidence able to be deemed intrinsic
will vary with the charged offense.” United States v. Williams,
974 F.3d 320, 357 (3d Cir. 2020). “Where a criminal
conspiracy is charged, courts have afforded the prosecution
considerable leeway to present evidence, even of unalleged
acts within the indictment period, that reflects a conspiratorial
agreement.” Id. That makes sense because a conspiratorial
agreement directly proves—indeed, it is the defining feature
of—every conspiracy. See, e.g., 1 Wharton’s Criminal Law
§ 8:2 (16th ed. 2024) (defining conspiracy as “an agreement
between two or more persons to commit an unlawful act or to
commit a lawful act by unlawful means.”).
At Barkers-Woode’s trial, the prosecution introduced
testimony over Barkers-Woode’s objection of a co-conspirator
describing how the conspiracy perpetrated more or less the
same fraud against Walmart. According to that testimony, the
conspiracy arranged for the same “guys in Africa” to place
“fraudulent” orders of electronics for pickup at Walmart. B-
W’s App. at 399. The fraud against Walmart required in-store

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pickup and involved different electronics (“TVs and gaming
consoles” as opposed to smartphones), but were otherwise
identical. Id. at 402. The two frauds occurred
contemporaneously with each other such that the conspirators
would retrieve packages from Sprint and pickups from
Walmart in a single trip. Conspirators discussed the two frauds
simultaneously in the same text message exchanges. When
asked whether the fraud against Walmart was “[p]art of the
same scheme,” Barkers-Woode’s co-conspirator answered,
“[b]asically, yes.” Id. at 399. Asked again moments later, if it
was “the same scheme,” the co-conspirator again answered,
“[e]ssentially, yes.” Id. at 402.
Barkers-Woode maintains that testimony of the fraud
against Walmart is not intrinsic since “the charged conspiracy
was a conspiracy to defraud Sprint.” Barkers-Woode’s
Opening Br. at 22. But evidence of a practically identical and
contemporaneous conspiracy among the same set of
individuals to defraud Walmart was probative of a
conspiratorial agreement among that same set of individuals to
defraud Sprint. Therefore, the testimony of the fraud against
Walmart “directly proves” a conspiratorial agreement among
the conspirators to defraud Sprint. Green, 617 F.3d at 248.
D
We review a District Court’s determination of a
defendant’s forfeiture of his Sixth Amendment right to counsel
de novo. United States v. Goldberg, 67 F.3d 1092, 1097 (3d
Cir. 1995). Barkers-Woode argues that the District Court erred
by not conducting a colloquy that sufficiently apprised him of
the risks inherent in pro se representation pursuant to Faretta.
We disagree and hold that Barkers-Woode forfeited his Sixth

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Amendment right through protracted and extreme dilatory
conduct despite the District Court’s several warnings.
In Goldberg we recognized two “circumstances in
which the dilatory tactics of a defendant can amount to a
forfeiture of his right to counsel.” 67 F.3d at 1094. The first is
“a true forfeiture” which “require[s] extremely dilatory
conduct” and “can result regardless of whether the defendant
has been warned about engaging in misconduct, and regardless
of whether the defendant has been advised of the risks of
proceeding pro se, as required by Faretta.” Id. at 1101. The
other is “waiver by conduct,” although we have explained that
this situation is better understood as a type of forfeiture. Id.
Waiver by conduct is triggered by “conduct less severe than
sufficient to warrant a forfeiture” and still “requires that a
defendant be warned about the consequences of his conduct,
including the risks of proceeding pro se.” Id. at 1101.
While the District Court did not specify under which
doctrine it was requiring Barkers-Woode to proceed pro se, we
are satisfied that Barkers-Woode’s conduct was so dilatory as
to meet the heightened requirements of forfeiture. Throughout
his trial and in the immediate aftermath, Barkers-Woode was
represented by John Yaninek, already his third attorney.
relationship broke down after Barkers-Woode filed spurious
complaints about Yaninek to the Pennsylvania Disciplinary
Board and “became combative” when Yaninek visited
Barkers-Woode at Perry County Prison on March 5, 2020.
Dist. Ct. Dkt. No. 291 at 1–2. According to Yaninek, Barkers-
Woode “became combative holding on to documents” that
Yaninek believed were “subject to the Court’s Protective Order
(Doc. 245) because they contain victim personal identification
information.” Id. at 2. Barkers-Woode had to be “physically

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removed from the prison’s conference room by correctional
officers.” Id.
That issue of access to protected documents fatally
impaired Barkers-Woode’s relationships with each of his
subsequent attorneys. At a status conference convened to
discuss his fifth attorney’s request to withdraw, that attorney
explained how things had “deteriorated even further” since the
last time they were “before the court for this type of
conference.” B-W’s App. at 641. He noted that “conversations
between me and Mr. Barkers-Woode [have] become very
hostile to the point where phones get hung up” and stated that
he was not “ethically able to continue this representation of Mr.
Barkers-Woode.” Id. When Barkers-Woode was given the
opportunity to respond, he demanded information about his
attorney’s superior, expressed his intention to file a complaint,
and recriminated other accusations (which his attorney
denied). Recognizing an “adversarial” relationship and “a
complete breakdown in any kind of effective communication,”
the District Court granted his fifth attorney’s motion to
withdraw. Id. at 645–46.
Before appointing a sixth attorney, the District Court
unmistakably warned Barkers-Woode that if these issues
continued to delay proceedings, then he would have to
represent himself.
If you continue to be unable to work with appointed
counsel but you don’t wish to proceed self-
represented, then if we find ourselves at this juncture
again with your sixth attorney, I will have no choice
but to make that decision for you because, and I need
you to understand, your Sixth Amendment right to
counsel is not absolute, and the court can put

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limitations on it, such as refusing to appoint a seventh
attorney and requiring you to proceed self-represented.
Id. at 647–48. The District Court repeated that it was “willing
to appoint one more attorney for you,” id. at 647, that “this will
be the last change of counsel in this matter,” id., and that “there
will be a sixth attorney if you want to proceed with counsel,
but there will not be a seventh,” id. at 648.
Yet only three months later, the District Court found
itself confronting the same issue at another status conference
after Barkers-Woode “file[d] a letter regarding certain
disagreements with counsel.” Id. at 655. The “disagreements”
between Barkers-Woode and his sixth counsel happened to be
the recurring issue of the District Court’s protective order. The
District Court asked Barkers-Woode several times whether he
was requesting that his sixth attorney (Korey Leslie) be
removed from his case and each time Barkers-Woode refused
to answer:
Court: . . . [D]o you wish to remove Mr. Leslie as your
counsel?
Barkers-Woode: Your Honor this question is too soon
because there’s other layers that has to be discussed
before we can arrive to answering this question.
Court: I’m asking if you’re requesting that I remove—
you sent a letter.
Barkers-Woode: I would rather he does the right thing
first, you know. And then if he still insists of staying
this way, then I’ll have no choice but to - - because I
have requested for a public defender because, Your

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Honor, for some reason I can’t identify - - I can’t draw
the line between the prosecutor’s office and the court-
appointed office. I cannot draw the line.
Court: All right. So I’m going to construe your answer
as that you are requesting that I remove Mr. Leslie.
Barkers-Woode: That’s not what I’m saying.
Court: Well, you need to answer my question, Mr.
Barkers-Woode. . . So let me ask this question a
different way. Have you and Mr. Leslie worked
everything out?
Barkers-Woode: We never had - - we haven’t had the
opportunity to do that.
Id. at 664–65. Afterwards, Barkers-Woode repeated his
objections to moving forward with the protective order still in
place.
Court: So either your counsel will file a sentencing
memorandum and we’ll have a sentencing hearing or
you’ll proceed pro se. That’s where we are.
Barkers-Woode: I disagree with that. . . Like you
mentioned, Your Honor, it seems like I’m going on in
circles, but that’s my defense, that’s my stand. My
stand is that I need my discoveries. I need my
discoveries. I need to have my discoveries. I did not
have - - I do not want an attorney dictating whether I
can have my discoveries or not because that creates
conflicts.

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. . .
Court: Mr. Barkers-Woode, I’ve made my ruling. I’ve
made my position clear. You either proceed with Mr.
Leslie through to the sentencing hearing or you
proceed pro se.
Id. at 669–70.
Barkers-Woode next asked whether the Court had
jurisdiction to “move on to sentencing without a decision from
appeal”—referring to a frivolous interlocutory appeal of the
District Court’s protective order that Barkers-Woode filed
without his attorney’s knowledge. Id. at 670. The District
Court explained that there is no pending appeal, but Barkers-
Woode insisted that “[a] decision has to be made” by the Third
Circuit. Id. at 671. After more back and forth, the District Court
finally discharged Barkers-Woode’s sixth attorney, appointed
standby counsel, and informed Barkers-Woode that he would
be required to proceed pro se. In so doing, the District Court
did not err.
Although the District Court’s warnings did not “advise
him in unequivocal terms both of the technical problems he
may encounter in acting as his own attorney and of the risks he
takes if his defense efforts are unsuccessful,” they did not have
to given Barkers-Woode’s forfeiture of his right to counsel.
Goldberg, 67 F.3d at 1099 (quoting United States v. Welty, 674
F.2d 185, 188–89 (3d Cir. 1982)). As the District Court
correctly observed, the circumstances giving rise to forfeiture
“[we]re somewhat extraordinary.” B-W’s App. at 676. Those
circumstances include the following: that Barkers-Woode
cycled through six attorneys several of whom he was hostile to
and combative with on multiple occasions; that he had to be

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physically removed from the presence of one attorney; that he
filed and threatened to file spurious complaints about their
representation; and that he engaged in other conduct intended
to delay the proceedings. Taken together, across all his
counsels’s attempts to represent him, Barkers-Woode engaged
in the sort of “extremely dilatory conduct” that results in
forfeiture of the Sixth Amendment’s right to counsel. See
United States v. Thomas, 357 F.3d 357, 363 (3d Cir. 2004)
(holding that a defendant forfeited his right to counsel when,
in relationships with four attorneys, he was verbally abusive,
refused to cooperate in producing a witness list, hung up on
counsel, attempted to force the filing of frivolous claims, and
became involved in a physical confrontation).
E
Finally, the District Court did not err by applying a 4-
point enhancement under U.S.S.G. § 2B1.1(b)(10)(B) and a 2-
point enhancement under U.S.S.G. § 3B1.1(a), both of which
were contingent on facts not charged in Mensah’s indictment
and not proved beyond a reasonable doubt to a jury at his trial.
Mensah argues that “the rule in Apprendi v. New Jersey, 530
U.S. 466, 490 (2000), should be extended to the Guidelines and
require[] that any fact that increases a person’s Guidelines
range must be charged in an indictment and proven beyond a
reasonable doubt.” Mensah’s Opening Br. at 14. But we
already rejected this extension of Apprendi in United States v.
Grier, where we held that “the right to proof beyond a
reasonable doubt does not apply to facts relevant to
enhancements under an advisory Guidelines regime.” 475 F.3d
at 565.
* * *

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For these reasons, as to both Barkers-Woode and
Mensah we will reverse the orders of the District Court
applying § 2B1.1(b)(1) based on intended loss and remand for
it to recalculate the Guidelines range using actual loss and
resentence accordingly. We also will affirm the orders of the
District Court applying § 2B1.1(b)(2) to both appellants. As to
Barkers-Woode, we will affirm the District Court’s decisions
to admit the testimony of a co-conspirator describing a related
fraud against Walmart at his trial and to require Barkers-
Woode to proceed pro se after his sixth attorney withdrew. As
to Mensah, we will affirm the District Court’s order applying
§ 2B1.1(b)(10)(B) and § 3B1.1(a).

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