United States of America v. Christopher Miller

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 24-2199
UNITED STATES OF AMERICA,
v.
CHRISTOPHER MILLER,
Appellant
_____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(District Court No.: 3:23-cr-00095-001)
District Judge: Honorable Julia K. Munley
_____________________________________
Argued December 10, 2025
(Filed April 3, 2026)
Before: PHIPPS, ROTH, and RENDELL, Circuit Judges.
Christopher R. Opiel, Esq. [ARGUED]
OPIEL LAW
88 North Franklin Street
Wilkes-Barre, Pennsylvania 18701

-- 1 of 19 --

2
Counsel for Appellant
Christian T. Haugsby [ARGUED]
Carlo D. Marchioli
OFFICE OF UNITED STATES ATTORNEY
MIDDLE DISTRICT OF PENNSYLVANIA
1501 N. 6th Street
Harrisburg, PA 17102
Counsel for Appellees
_________
OPINION OF THE COURT
_________
RENDELL, Circuit Judge.
Christopher Miller appeals his sentence for bank fraud,
aggravated identity theft, and unlawful monetary transactions.
He argues the District Court erred in concluding that Kelly
Moran and Robert Reynolds—respectively, Miller’s wife and
neighbor—were “participants” and thus erred in applying the
four-level enhancement under U.S.S.G. § 3B1.1(a) for
organizing or leading “criminal activity that involved five or
more participants or was otherwise extensive.” In applying the
enhancement, the District Court relied on the three-step inquiry
we adopted in United States v. Helbling to conclude that the
sum of the three participants and thirteen non-participants was
the functional equivalent of five participants and thus satisfied
the “otherwise extensive” prong. 209 F.3d 226 (3d Cir. 2000).
Helbling relied on the Sentencing Guidelines’ commentary in
developing the three-step inquiry. Under our precedent,
however, courts may consider commentary only when the text
of a particular Guideline is genuinely ambiguous. United States

-- 2 of 19 --

3
v. Nasir, 17 F.4th 459, 471 (3d Cir. 2021) (en banc). The District
Court erred in not following this analysis, but as we explain
below, the District Court would have reached the same
conclusion if it had conducted the Nasir analysis before
deferring to the commentary and Helbling test. Therefore, the
legal error was harmless. See generally Fed. R. Crim.
P. 52(a) (“Any error, defect, irregularity, or variance that does
not affect substantial rights must be disregarded.”).
Accordingly, we will affirm Miller’s sentence.
I. BACKGROUND
Between April 2020 and September 2021, Miller
defrauded over $2 million from the Paycheck Protection
Program, the Economic Injury Disaster Loan program, and the
Pandemic Unemployment Assistance program. Miller filed
dozens of fraudulent loan applications on behalf of himself, his
corporate entities, his wife, his neighbor, and at least thirteen
other family members and associates. These family members
and associates provided Miller with their personal information
to fill out the applications, and upon receiving the fraudulent
funds, they paid Miller kickbacks.
The District Court found that the role played by Miller’s
wife, Kelly Moran, and his neighbor, Robert Reynolds,
exceeded the involvement of Miller’s other family members
and associates. Moran not only provided Miller with her
personal information and received fraudulent funds, but she
also called a lender to verify her personal information and
check the status of an application. Further, after the FBI
executed a search warrant on their home and issued a target
letter, Moran willingly fled to South Carolina with Miller,
where she lived with him for over a year while he used a fake

-- 3 of 19 --

4
name. Also, many of those who were involved to a lesser
degree were Moran’s family members. Reynolds—in addition
to supplying Miller with his personal information and paying
Miller nearly $15,000 in kickbacks—sat in Miller’s home to
have his photo taken for use in a fraudulent loan application.
He later pleaded guilty to wire fraud for his participation in
Miller’s scheme.
Fifty-four charges were brought against Miller for wire
fraud, bank fraud, false loan applications, false statements to
the Small Business Administration, aggravated identity theft,
and unlawful monetary transactions. Miller accepted a plea
deal and pleaded guilty to one count of bank fraud, one count
of aggravated identity theft, and one count of unlawful
monetary transactions. The final Presentence Investigation
Report (“PSR”) calculated Miller’s criminal history score to be
seven, placing him in criminal history category IV. The PSR
calculated Miller’s total adjusted offense level to be twenty-
seven, which included the four-level leadership enhancement
under U.S.S.G. § 3B1.1(a). Miller was also subject to a two-
year consecutive mandatory sentence for the count of
aggravated identity theft, yielding an advisory Guideline range
of 124 to 149 months’ imprisonment.
Miller objected to the PSR’s calculations on two
grounds. First, Miller objected to the application of the four-
level leadership enhancement pursuant to U.S.S.G. § 3B1.1(a).
Specifically, Miller argued he was not the leader of “otherwise
extensive” criminal conduct because Moran and Reynolds
were not “participants” in Miller’s scheme. Miller also
objected to the PSR’s calculation of his criminal history score.
The District Court overruled both of Miller’s objections,

-- 4 of 19 --

5
adopted the PSR’s findings, and sentenced Miller to 149
months’ imprisonment.
Miller appealed, challenging only whether the District
Court erred in applying the four-level leadership enhancement
pursuant to U.S.S.G. § 3B1.1(a) by incorrectly categorizing
Moran and Reynolds as “participants” in Miller’s scheme.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction
pursuant to 18 U.S.C. § 3231. This Court has jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
We review the District Court’s interpretation of the
Sentencing Guidelines de novo. United States v. McIntosh, 124
F.4th 199, 205 (3d Cir. 2024). We review the District Court’s
factual findings in support of the enhancement under the clear
error standard. See United States v. Adair, 38 F.4th 341, 347
(3d Cir. 2022) (citing United States v. Huynh, 884 F.3d 160,
165 (3d Cir. 2018)).
III. DISCUSSION
For many years, we treated the Sentencing
Commission’s commentary as authoritative and gave it
controlling weight unless it was “inconsistent with, or a plainly
erroneous reading of, that [G]uideline.” United States v. Metro,
882 F.3d 431, 437 (3d Cir. 2018) (quoting Stinson v. United
States, 508 U.S. 36, 38 (1993)). However, in Kisor v. Wilkie,
588 U.S. 558, 573 (2019), the Supreme Court held that courts
should defer to agency interpretations of their own regulations
only where the regulation is genuinely ambiguous. Thereafter

-- 5 of 19 --

6
we applied that holding in United States v. Nasir, 17 F.4th 459,
471 (3d Cir. 2021), and announced a three-step test to decide
whether to consult and defer to a particular provision of the
Sentencing Guidelines commentary. First, we ask whether the
Guideline is “genuinely ambiguous” after “carefully
consider[ing] the text, structure, history, and purpose.” Id.
(quoting Kisor, 588 U.S. at 575 (internal quotation marks
omitted)). If it is not, our inquiry ends, and we apply the plain
text of the Guideline. Id. If it is genuinely ambiguous, we
proceed to step two and ask if the commentary is “reasonable,”
id., meaning the commentary “clarif[ies] the ambiguity”
identified in step one without “chang[ing] the meaning of the
text,” United States v. Chandler, 104 F.4th 445, 450 (3d Cir.
2024), or said differently, that the commentary is within “the
outer bounds of permissible interpretation.” Nasir, 17 F.4th at
471 (quoting Kisor, 588 U.S. at 576). If the commentary is
reasonable, we proceed to step three and consider “whether the
character and context of the agency interpretation entitles it to
controlling weight.” Id. (quoting Kisor, 588 U.S. at 576). If the
commentary’s interpretation “implicate[s] [the Commission’s]
substantive expertise[,]” “reflect[s] fair and considered
judgment,” and is the agency’s “official position,” it is entitled
to controlling weight, and we will defer to it. Id. (quoting
Kisor, 588 U.S. at 577, 579).
Miller challenges the District Court’s application of
Guideline § 3B1.1(a), which permits a four-level enhancement
“[i]f the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1(a). Miller does not
challenge the District Court’s ruling that he was an organizer
or leader, so our inquiry focuses on whether “otherwise

-- 6 of 19 --

7
extensive” is genuinely ambiguous.1 Before Kisor and Nasir,
we had interpreted the “otherwise extensive” prong of
Guideline § 3B1.1(a) at issue here. See United States v.
Helbling, 209 F.3d 226 (3d Cir. 2000). In Helbling, we deferred
to the Commission’s interpretative commentary in defining
“participant” and “otherwise extensive” when establishing the
test to determine what qualifies as “otherwise extensive.” Id. at
244–45 (citing U.S.S.G. § 3B1.1, Application Note 1 (defining
“participant”), U.S.S.G. § 3B1.1, Application Note 3 (stating
that “all persons involved during the course of the entire
offense are to be considered” when determining whether the
activity was “otherwise extensive”)). Because in Helbling we
deferred to the commentary without considering whether
“otherwise extensive” was ambiguous, after Kisor and Nasir,
we must reverse course and consider whether that phrase is
“genuinely ambiguous.”
A. The Guideline is Genuinely Ambiguous
For step one, we must apply the standard tools of
statutory interpretation, which include the dictionary
definitions of words and phrases that are contemporaneous
with the promulgation of the Guideline. See Chandler, 104
F.4th at 451. To begin, we note Miller’s argument that this
Court already found this provision as unambiguous in Adair is
incorrect. Rather, Adair dealt with the “organizer or leader”
prong of Guideline § 3B1.1(a), and its conclusion that
“organizer” and “leader” are not genuinely ambiguous does not
control whether “otherwise extensive” is genuinely
ambiguous. 38 F.4th at 354.
1 There is no contention that there were five or more
participants.

-- 7 of 19 --

8
Turning to dictionaries in use at the time of the
Guideline’s promulgation, Black’s Law Dictionary defines
“otherwise” to mean “[i]n a different manner; in another way,
or in other ways.” Otherwise, Black’s Law Dictionary (6th ed.
1990); see also Otherwise, Black’s Law Dictionary (5th ed.
1979). Black’s Law Dictionary defines “extensive” to mean
“[w]idely extended in space, time, or scope; great or wide or
capable of being extended.” Extensive, Black’s Law Dictionary
(6th ed. 1990); see also Extensive, Black’s Law Dictionary (5th
ed. 1979). These dictionary definitions do not resolve what
Guideline § 3B1.1(a) means by “otherwise extensive.”
The standard tools of statutory interpretation also
include an analysis of other textual aspects. See, e.g., Adair, 38
F.4th at 351 (“Other textual aspects of [U.S.S.G.] § 3B1.1(a)
illuminate the meaning of ‘organizer’ and ‘leader.’”). Here,
“otherwise extensive”—like “involved five or more
participants”—modifies “criminal activity.” These modifying
phrases are joined by the conjunction “or,” “which most
commonly functions to indicate either an alternative between
different or unlike things, states, or actions or a choice between
alternative things, states, or courses.” Id. (footnotes omitted).
But “or” can also have a different meaning—it can indicate
“the synonymous, equivalent, or substitutive character of two
words or phrases,” or even a “correction or greater exactness
of phrasing or meaning.” Id. at 351–52 (internal quotations and
citations omitted); see Honig v. Doe, 484 U.S. 305, 334 (1988)
(Scalia, J., dissenting) (identifying the multiple common
definitions of the term “or”). Accordingly, to understand
“otherwise extensive” requires an understanding of the
comparator—here, “five or more participants.”

-- 8 of 19 --

9
Miller argues if the “otherwise extensive” prong could
be satisfied by leadership over “a handful of participants, the
five (5) participant threshold set out at the beginning of the
[G]uideline[] would lose meaning.” Miller Supp. Br. at 7. But
we draw the opposite conclusion. To read “otherwise
extensive” as requiring the exact thing as the initial “five or
more participants” prong would render the phrase entirely
superfluous. See Honig, 484 U.S. at 334 (“That is rather like a
statute giving the vote to persons who are ‘18 or 21.’”); see
also Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d
199, 210 (3d Cir. 2008) (the Court must presume that “every
word in a statute has meaning and avoid interpreting one part
of a statute in a manner that renders another part superfluous”)
(citing Rosenberg v. XM Ventures, 274 F.3d 137, 141–42 (3d
Cir. 2008)). However, neither the dictionary definitions nor our
standard tools of statutory interpretation clarify whether
“otherwise extensive” is restricted to the number of individuals
involved in the criminal activity or may include other indicia
of a criminal activity’s extensiveness such as the magnitude of
the harm, the complexity of the planning, or the number of
victims.
The dictionary definitions of “participant” do not clarify
the ambiguity either. Merriam-Webster defines “participant” as
“one that participates,” and to “participate” as “to possess
something of the nature of a person, thing, or quality,” “to take
part,” or “to have a part or share in something.” Participant,
Merriam-Webster’s Collegiate Dictionary (9th ed. 1983);
Participate, Merriam-Webster’s Collegiate Dictionary (9th ed.
1983). For instance, the meaning of “participant” can be
completely changed by the use of the modifier “willing” or
“unwitting,” suggesting that “participant” is genuinely
ambiguous as well. See, e.g., United States v. Barbosa, 271

-- 9 of 19 --

10
F.3d 438, 470 (3d Cir. 2001) (record showed that appellant was
“apparently a willing participant in the operation to smuggle
drugs to Philadelphia from Aruba” as opposed to the “classic
example of a courier . . . who was enticed, coerced, or exploited
by an affluent, sophisticated drug dealer”) (emphasis added);
United States v. Flores Perez, 849 F.2d 1, 2 (1st Cir. 1988)
(appellant argued the evidence was insufficient to prove “he
was anything more than an unwitting participant who was
caught in the wrong place at the wrong time”) (emphasis
added).
The Commission identified the purpose for the
enhancement in the background commentary for Guideline
§ 3B1.1, which we may consider without going through the
Kisor process,2 as follows:
This section provides a range of adjustments to
increase the offense level based upon the size of
the criminal organization (i.e., the number of
participants in the offense) and the degree to
which the defendant was responsible for
committing the offense . . . . The Commission’s
intent is that this adjustment should increase with
both the size of the organization and the degree
of the defendant’s responsibility.
2 See Adair, 38 F.4th at 347–48 (“The paradigm applies only to
the Commission’s interpretive commentary, not its
commentary related to either background information or
circumstances that may warrant a departure from a
[G]uideline.”).

-- 10 of 19 --

11
U.S.S.G. § 3B1.1, Background (emphasis added). The
background commentary also explains why the size of the
criminal activity is important to the purpose of the provision,
noting that the Sentencing Commission drafted the Guideline’s
separate provisions to respond to criminal organizations whose
size and structure increases the significance of the defendant’s
role. Compare U.S.S.G. § 3B1.1(a)–(b), with § 3B1.1(c).
Our precedent also supports a finding of ambiguity. In
Helbling, we recognized that although “otherwise extensive”
appeared to be a “seemingly simple phrase,” it had “spawned
much discussion, and some disagreement, in the opinions of
several courts of appeals.” Helbling, 209 F.3d at 244. Whereas
the Second Circuit—whose test we adopted in Helbling—
limited the focus to the headcount of individuals involved,
other circuits permit a broader consideration of other indicia of
extensiveness including the breadth, scope, complexity,
geographical reach, and duration of the scheme. Id. (citing
United States v. Carrozzella, 105 F.3d 796, 802–03 (2d Cir.
1997); United States v. Dietz, 950 F.2d 50, 53–54 (1st Cir.
1991)). This circuit split further supports a finding of
ambiguity.
Moreover, two former Justices referred to the provision
as an example of a “highly complex or open-ended Sentencing
Guidelines [provision]” that was “obviously written for
application by an experienced trial judge,” highlighting the
phrase “otherwise extensive.” Blakely v. Washington, 542 U.S.
296, 346–47 (2004) (Breyer, J., dissenting, joined by
O’Connor, J.).
The history of Guideline § 3B1.1 does little to clarify
the meaning of “otherwise extensive.” The Commission has

-- 11 of 19 --

12
only made one non-substantive amendment to § 3B1.1 since
promulgating the Guideline in 1987. See U.S.S.G. App. C
Amend. 831 (Nov. 1, 2024) (inserting the word “subsection” in
§ 3B1.1(c)). Accordingly, the history of § 3B1.1 also supports
a finding of ambiguity.
In sum, the text of § 3B1.1 is ambiguous, and the
purpose, history, and precedent relating to the Guideline only
confirm that ambiguity.
B. Reasonableness of the Commentary
For commentary to be reasonable, it must not
“improperly expand[ ] the Guideline,” United States v. Banks,
55 F.4th 246, 253 (3d Cir. 2022), and must remain within “the
outer bounds of permissible interpretation,” Nasir, 17 F.4th at
471 (citation omitted). The commentary here does exactly that.
The commentary directs the court to consider “all persons
involved during the course of the entire offense” when
assessing whether an organization is “otherwise extensive.”
U.S.S.G. § 3B1.1, Application Note 3. It states that “a fraud
that involved only three participants but used the unknowing
services of many outsiders could be considered extensive.” Id.
This does not expand the Guideline but rather narrows the
focus of the inquiry upon the number and roles of the
individuals knowingly, and unknowingly, involved. Cf. Banks,
55 F.4th at 258 (declining to defer to the commentary when it
expands the definition). Other circuits interpret “otherwise
extensive” to allow sentencing courts to consider other factors
like geographic scope, the reach of the criminal activity, drug
weight, and economic loss. See United States v. Figueroa, 682
F.3d 694, 695–96 (7th Cir. 2012); United States v. Dietz, 950
F.2d 50, 53 (1st Cir. 1991) (affirming district court’s finding

-- 12 of 19 --

13
that the defendant’s criminal activities were “sufficiently
panoramic” to justify the increase); United States v. Vasquez-
Rubio, 296 F.3d 726, 729 n.3 (8th Cir. 2002) (finding “the
nature and complexity of the operation and its geographical
reach” are also factors that can support a finding that criminal
activity was “otherwise extensive”). By comparison, the
commentary offers a narrower inquiry focused on the
headcount of individuals involved. Accordingly, the
commentary’s direction of what to consider can hardly be said
to expand the text.
The commentary’s definition of “participant” also falls
within the outer bounds of permissible interpretation. The
commentary defines “participant” as “a person who is
criminally responsible for the commission of the offense, but
need not have been convicted.” U.S.S.G. § 3B1.1, Application
Note 1. This definition narrows “participant” from its
dictionary definition and thus is reasonable.
C. Entitlement to Controlling Weight
As the last step of the Nasir process, we consider
“whether the character and context of the agency interpretation
entitles it to controlling weight,” Nasir, 17 F.4th at 471, since
“[s]ome interpretative issues may fall more naturally into a
judge’s bailiwick.” Kisor, 588 U.S. at 578. As guideposts, the
Supreme Court in Kisor identified three character-and-context
circumstances in which an agency’s otherwise reasonable
interpretation should not receive controlling weight. See id.
at 576–79. Those occur when an agency’s interpretation is not
its “‘authoritative’ or ‘official position,’” id. at 577, when the
agency’s interpretation does not implicate its “substantive
expertise” in some way, id., and when the agency’s reading

-- 13 of 19 --

14
does not reflect its “fair and considered judgment” but rather is
a “convenient litigating position,” or a “post
hoc rationalization,” id. at 579.
The commentary here is entitled to controlling weight.
The Application Notes are the Commission’s official position
rather than an ad hoc pronouncement. See United States v.
Caraballo, 88 F.4th 239, 248 (3d Cir. 2023) (“First, the
Commentary’s definition is the Sentencing Commission’s
official position and not merely an ad hoc pronouncement.”).
Further, the commentary implicates the Commission’s
substantive expertise. One of the three principal purposes of
the Sentencing Commission is to “establish sentencing policies
and practices for the federal courts, including [G]uidelines to
be consulted regarding the appropriate form and severity of
punishment for offenders convicted of federal
crimes[.]” About, United States Sentencing Commission,
https://perma.cc/Y7YE-DEJR (last visited Dec. 11, 2025). The
Sentencing Guidelines are “core to the [Sentencing
Commission’s] mission” and “provide federal judges with fair
and consistent sentencing ranges to consult at sentencing,” in
part by “providing certainty and fairness in meeting the
purposes of sentencing by avoiding unwarranted disparity
among offenders with similar characteristics convicted of
similar criminal conduct, while permitting sufficient judicial
flexibility to consider relevant aggravating and mitigating
factors.” U.S. Sentencing Commission’s 2024 Annual Report,
United States Sentencing
Commission, https://perma.cc/7D4U-XUBF (last visited Dec.
11, 2025). The question of what impact the size of a
defendant’s criminal organization, or criminal activity that she
led, should have on a sentence is “squarely within the
Sentencing Commission’s bailiwick.” United States v.

-- 14 of 19 --

15
Mercado, 81 F.4th 352, 360 (3d Cir. 2023) (internal quotations
and citation omitted). And finally, the commentary was not
instituted for any post hoc purpose but has been included since
1987, and thus reflects the Sentencing Commission’s “fair and
considered judgment.” Kisor, 588 U.S. at 579.
Accordingly, the commentary’s Application Notes
regarding “otherwise extensive” and “participant” are entitled
to deference.
D. The Continuation of the Helbling Test
Now permitted to defer to the commentary after
completing the Kisor analysis, we briefly consider whether the
way in which we analyzed the commentary in Helbling
remains the appropriate test for “otherwise extensive.” In
Helbling, we presciently noted the lack of clarity of the
“otherwise extensive” phrase and determined the meaning of
the commentary.3 In holding that “otherwise extensive”
required a headcount of the individuals involved, the Court
concluded that the “focus upon the number and roles of the
individuals knowingly, and unknowingly, involved best
comports with the text of § 3B1.1(a), its application notes and
commentary, as well as the overall structure of the Sentencing
3 In Adair, we identified Helbling as one of the pre-Kisor
decisions that had misinterpreted the “organizer or leader”
enhancement by deferring to the commentary instead of
engaging in the Kisor process. Adair, 38 F.4th at 350 n.4, n.5.
But that finding was limited to the interpretation of the words
“organizer” or “leader,” which was a separate analysis in
Helbling. See Helbling, 209 F.3d at 243 (deferring to the
Application Note without engaging in any textual analysis).

-- 15 of 19 --

16
Guidelines.” Helbling, 209 F.3d at 245. We relied on the
commentary, which indicated that the “otherwise extensive”
inquiry should focus on the number of individuals involved. Id.
at 246. Moreover, constraining the “extensiveness” inquiry to
a head counting analysis “reduces the potential for double
counting certain aspects of criminal activity that are considered
elsewhere in the scheme of the [G]uidelines, thus helping to
maintain the distinct character of various [G]uideline
sections.” Id. For instance, Miller received a separate sixteen-
level enhancement due to the amount of intended loss and a
two-level enhancement because the offense involved
sophisticated means. U.S.S.G. §§ 2B1.1(b)(1)(I),
2B1.1(b)(10)(C).
The Court acknowledged that “[a]lthough Application
Note 3 supports our mode of analysis, the [G]uidelines are
silent as to how the sentencing court actually is to decide which
non-participants should be considered, and what combination
of participants and countable non-participants is the
‘equivalent’ of five participants.” Id. at 247. Helbling thus
adopted the Second Circuit’s three-step inquiry. First, the
sentencing court separates out the “participants,” as defined by
Application Note 1, from non-participants who were involved
in the criminal activity. The defendant may be considered as
one of the participants. Id. at 248. Next, the court determines
whether the defendant used each non-participants’ services
with specific criminal intent. Third, the court determines “the
extent to which the services of each individual, non-
participant, were peculiar and necessary to the criminal
scheme.” Id. After concluding which individuals may be
counted, the court “must then consider whether the sum of the
participants and countable non-participants is the functional
equivalent of five participants.” Id.

-- 16 of 19 --

17
Deferring to the commentary, we again subscribe to this
three-step inquiry to determine whether the sum of participants
and countable non-participants is the functional equivalent of
five participants. As explained in Helbling, the three-step test
is supported by the text, the structure, and the purpose of the
Guideline and the commentary. A broader interpretation is not
supported by the commentary and risks double counting
certain aspects of criminal activity that are considered
elsewhere in the scheme of the Sentencing Guidelines.
E. The District Court Did Not Commit Clear Error
On appeal, Miller challenges only the District Court’s
classification of Kelly Moran and Robert Reynolds as
“participants” in the Helbling analysis. Applying the post-
Nasir understanding of § 3B1.1(a) and deferring to the
commentary and Helbling analysis to the District Court’s
factual findings, which are not clearly erroneous, reveals that
Miller qualified for the leadership enhancement. See Anderson
v. City of Bessemer City, 470 U.S. 564, 573–74
(1985) (explaining that clear error requires a “definite and firm
conviction that a mistake has been committed.” (citation
omitted)).
The District Court determined that there were three
participants: Miller, Reynolds, and Moran. The Court found
that Reynolds was an “integral part of the scheme” and “pled
guilty to his participation in the scheme.” App. 230. Miller
urges that Reynolds is indistinguishable from the other thirteen
non-participants who provided Miller with their personal
information and transferred kickbacks to Miller. But as the
District Court explained, Reynolds pleaded guilty to wire fraud

-- 17 of 19 --

18
for the conduct he undertook jointly with Miller. The District
Court did not err in characterizing Reynolds as a participant.
The Court also considered Moran’s conduct. She called
a lender, applications were filed on behalf of her family
members, she personally received monetary benefits from the
scheme, and she fled Pennsylvania with Miller after he
received a target letter and lived with Miller out of state while
he used a fake name for a year. Miller argues that Moran was
not a participant because there is no evidence that she drafted
or submitted any fraudulent loan applications herself and
characterizes Moran’s call to the PPP lender as “an act of
curiosity or follow-up.” Opening Br. at 14. In attempting to
analogize Moran to non-participants in Helbling, Miller would
have us draw parallels between actors in different factual
settings, essentially between apples and oranges. The
comparison of an individual’s factual involvement in one case
to another individual’s factual involvement in another case is
difficult at best. Each instance must rise and fall on its own
facts.4 Here, the District Court did not clearly err in concluding
that Moran was criminally culpable for her role in Miller’s
scheme. Moran personally called a lender to check the status
of the fraudulent loan application, and she fled with Miller after
he received a target letter. Moreover, several of the individuals
for whom Miller filed fraudulent applications were Moran’s
family members. These facts support the District Court’s
conclusion that Moran was a participant in Miller’s criminal
4 Moreover, Helbling contested the district court’s
determination that six people were countable non-participants.
Helbling, 209 F.3d at 248. Here, Miller challenges the District
Court’s determination that two people are participants—a
different issue.

-- 18 of 19 --

19
activity, and thus, the District Court did not clearly err in
categorizing her as a participant.
Next, the District Court found Miller used the
participants and non-participants’ services with specific
criminal intent. The thirteen non-participants, Reynolds, and
Moran supplied the information but for which Miller could not
have committed the crime. The District Court also determined
the services of the non-participants were peculiar and
necessary to the criminal scheme, because Miller used the non-
participants’ information to complete the fraudulent
applications. Finally, the District Court concluded the three
participants plus the non-participants met the functional
equivalent of five participants and overruled Miller’s objection
to the enhancement. The District Court did not clearly err in so
finding.
IV. CONCLUSION
In light of the above, we will affirm the District Court’s
judgment of sentence.

-- 19 of 19 --