United States of America v. Rodney Blake

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 24-3181 & 24-3192
_____________
UNITED STATES OF AMERICA
v.
RODNEY BLAKE,
Appellant in No. 24-3181
UNITED STATES OF AMERICA
v.
ROBERT MORRISEY, JR.,
Appellant in No. 24-3192
______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Nos. 2:22-cr-00284-003 & 2:22-cr-00284-004)
District Judge: Honorable Marilyn J. Horan
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 14, 2026
Before: SHWARTZ, MASCOTT and McKEE, Circuit Judges
(Opinion filed: July 27, 2026)
_______________________
OPINION
_______________________
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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McKEE, Circuit Judge.
Rodney Blake and Robert Morrisey, Jr. were convicted on several counts of
possessing fraudulent checks under 18 U.S.C. § 513(a).1 They raise three issues on
appeal: the District Court plainly erred in (1) denying judgment of acquittal on their
counts of conviction under § 513(a), (2) applying a two-level enhancement to their
sentences pursuant to U.S.S.G. § 2B1.1(b)(11)(B)(i), and (3) failing to address several
arguments for a downward variance to their sentences. While the government opposes
Defendants’ request that we vacate their convictions and remand for entry of judgment of
acquittal, it joins in requesting a remand for resentencing. For the reasons set forth below,
we will affirm their convictions, vacate their sentences, and remand for resentencing.2
I.
Defendants were indicted on multiple counts of making, uttering, or possessing
counterfeit or forged securities of an organization under 18 U.S.C. § 513(a). The
securities in question were counterfeit checks. The indictment alleged that Blake
possessed a counterfeit check of Ramp Construction (identified as Construction Company
1) on June 14, 2021 and a counterfeit check of West Deer Volunteer Fire Department
(identified as Volunteer Fire Department 1) on June 17, 2021. It also alleged that
Morrisey possessed three counterfeit checks of Town and Country Motors (identified as
Auto Dealer 1), one on March 1, 2022 and two on March 2, 2022.
1 They were also convicted of conspiracy to commit bank fraud under 18 U.S.C. §§ 1344
and 1349.
2 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742.

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To convict Defendants under § 513(a), the prosecution had to prove that the
checks were “of an organization,”3 meaning “a legal entity, other than a government, . . .
which operates in or the activities of which affect interstate or foreign commerce.”4
Before trial, the parties signed and submitted a set of proposed stipulations, which
included an agreement that Ramp Construction, West Deer Volunteer Fire Department,
and Town and Country Motors “were legal entities that operated in, or the activities of
which affected, interstate or foreign commerce” between March 2019 and April 2022.5
Thus, the proposed stipulation established that the counterfeit checks Blake and Morrisey
possessed were “of an organization” as required by § 513(a).
At Defendants’ trial, the judge misread the stipulation to the jury, mistakenly
stating that Ramp Construction, West Deer Volunteer Fire Department, and Town and
Country Motors “were legal entities that operated in or the activities of which affected
interstate or foreign commerce” between March 2019 and April 2020, rather than April
2022.6 However, Defendants did not possess any of the five checks until after April 2020.
On appeal, Defendants argue that the District Court plainly erred in denying
judgment of acquittal on the § 513(a) counts because the government did not prove the
“of an organization” element. They argue that because the jury received evidence, per the
misread stipulation, that the three entities were operating in or affecting interstate or
foreign commerce between March 2019 and April 2020, no reasonable juror could find
3 18 U.S.C. § 513(a).
4 18 U.S.C. § 513(c)(4).
5 App. 34.
6 App. 207-08.

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that those entities met the statutory definition of an “organization” at the time Defendants
possessed the counterfeit checks.
Given this specific argument was not raised before the District Court, we review
Defendants’ sufficiency-of-the-evidence claim for plain error.7 The plain error standard
“requires a showing that (1) there was an ‘error’; (2) the error was ‘plain’; (3) the error
prejudiced or ‘affect[ed] substantial rights’; and (4) not correcting the error would
‘seriously affect[] the fairness, integrity or public reputation of judicial proceedings.’”8
The fourth prong captures the remedial discretion afforded appellate courts when
conducting plain error review. As such, “a plain error affecting substantial rights does
not, without more,” seriously affect the fairness, integrity or public reputation of judicial
proceedings.9 For a sufficiency-of-the-evidence claim, the fourth prong is met only where
affirmance would produce a “manifest miscarriage of justice—the record must be devoid
of evidence of guilt or the evidence must be so tenuous that a conviction is shocking.”10
In other words, the defendant must “establish that the trial judge and prosecutor were
derelict in even permitting the jury to deliberate.”11
This is a demanding threshold that Defendants cannot clear. The stipulation, as
read, informed the jury that Ramp Construction, West Deer Volunteer Fire Department,
7 The parties agree that plain error review applies. See United States v. Abrams, 165 F.4th
784, 801 (3d Cir. 2026) (reviewing unpreserved sufficiency arguments for plain error).
8 Id. (alterations in original) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
9 Olano, 507 U.S. at 736, 737.
10 United States v. Burnett, 773 F.3d 122, 135 (3d Cir. 2014) (quoting United States v.
Avants, 367 F.3d 433, 449 (5th Cir. 2004)).
11 Id.

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and Town and Country Motors were legal entities that operated in or the activities of
which affected interstate or foreign commerce between March 2019 and April 2020.
Defendants argue that because the five checks were alleged to have been possessed at
various dates in 2021 and 2022, all after April 2020, the government failed to prove the
checks were of an organization at the time Defendants possessed them. However, there
was no reason for the jury to conclude that Ramp Construction, West Deer Volunteer Fire
Department, and Town and Country Motors lost their status as legal entities operating in
or affecting interstate or foreign commerce after April 2020—in fact, it would have been
counterintuitive to do so. On direct examination, representatives from these entities did
not indicate any shift in status after April 2020. A juror’s role includes drawing
“reasonable inferences from the evidence presented at trial.”12 Here, an inference that
Ramp Construction, West Deer Volunteer Fire Department, and Town and Country
Motors retained their status as legal entities operating in or affecting interstate or foreign
commerce in 2021 and 2022 was reasonable given the stipulation as read to the jury and
the lack of any indication that the entities’ operations changed. Affirmance will not
produce a manifest miscarriage of justice because the evidence is not so tenuous on this
element that a conviction is shocking.
There is further reason to conclude that affirmance will not produce a manifest
miscarriage of justice and thereby seriously affect the fairness, integrity or public
reputation of judicial proceedings. Defendants signed a stipulation, which they filed in
12 United States v. Jacobs, 21 F.4th 106, 112 (3d Cir. 2021).

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the District Court, that established the very element they now claim the government
failed to prove.13 At trial, defense counsel confirmed there was “[n]o objection” to the
judge reading the agreed-upon stipulation to the jury.14 Given Defendants’ decision to
stipulate to this element of the offense, no miscarriage of justice will result here if we
affirm. Accordingly, the sufficiency-of-the-evidence argument fails plain error review.
II.
Defendants assert that the District Court plainly erred in applying a two-level
enhancement to their sentences because 18 U.S.C. § 1029(e) explicitly excludes transfers
originated solely by paper instrument, a category that includes the passing of counterfeit
checks. The government concedes this issue in its brief, and we agree.15 U.S.S.G. §
2B1.1(b)(11)(B)(i) instructs district courts to apply a two-level enhancement when the
offense involved “the production or trafficking of any . . . unauthorized access device or
counterfeit access device.”16 The term “access device” is defined by cross-reference to 18
U.S.C. § 1029(e)(1), which specifically excludes “transfer[s] originated solely by paper
13 Although the court-filed stipulation is outside the trial record, “an appellate court
conducting plain-error review may consider the entire record—not just the record from
the particular proceeding where the error occurred.” Greer v. United States, 593 U.S.
503, 511 (2021); see also United States v. Perrin, 149 F.4th 267, 282 (3d Cir. 2025).
14 App. 207.
15 See United States v. Butler, 646 F.3d 1038, 1041 (8th Cir. 2011) (holding that
“U.S.S.G. § 2B1.1(b)(10) cannot be applied to offenses that involve a transfer originated
solely by paper instrument, i.e., a scheme limited to fraudulent check-cashing”); United
States v. Tatum, 518 F.3d 769, 772 (10th Cir. 2008) (holding that “counterfeit checks and
the account numbers printed on those checks fall outside the statutory definition of an
access device”); United States v. Hughey, 147 F.3d 423, 434 (5th Cir. 1998) (holding that
18 U.S.C. § 1029(e)(1) “unambiguously places the passing of bad checks and similar
conduct outside the scope of the federal statute”).
16 U.S.S.G. § 2B1.1(b)(11)(B)(i).

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instrument” from its ambit.17 Accordingly, we will vacate Defendants’ sentences and
remand for resentencing.
III.
We agree with the government that we need not consider whether the District
Court plainly erred in failing to address arguments for a downward variance because the
District Court will have a renewed opportunity to consider Defendants’ requests for a
variance during resentencing.18
IV.
For the above reasons, we will affirm Blake’s and Morrisey’s convictions, vacate
their sentences, and remand for resentencing.
17 See U.S.S.G. § 2B1.1 cmt. n.10(A) (stating that “unauthorized access device” “has the
meaning given that term in 18 U.S.C. § 1029(e)(3),” and “counterfeit access device” “has
the meaning given that term in 18 U.S.C. § 1029(e)(2)”); 18 U.S.C. § 1029(e)(1)
(defining “access device” under § 1029(e) to exclude “transfer[s] originated solely by
paper instrument”). The Sentencing Commission’s interpretation of “access device,”
defined by cross-reference to 18 U.S.C. § 1029(e)(1) to exclude paper instruments, is
reasonable in light of the text, structure, and history of the regulation and the statute to
which this specific guideline relates. See United States v. Nasir, 17 F.4th 459, 471 (3d
Cir. 2021) (en banc) (reasoning that we may defer to an agency’s interpretation of an
ambiguous regulation if it is reasonable and informed by text, structure, and history).
“Access device” is a term of art derived from the Counterfeit Access Device and
Computer Fraud and Abuse Act of 1984. See Pub. L. 98-473; 98 Stat. 1837. Thus, it
stands to reason that the term “access device” in U.S.S.G. § 2B1.1(b)(11)(B)(i) is defined
by cross-reference to the definition in that Act.
18 The government requests a limited remand for resentencing without the access-device
enhancement, while Defendants argue we should remand for full resentencing. We will
remand for full resentencing because the Guidelines range was incorrectly calculated.
See, e.g., United States v. Henderson, 64 F.4th 111, 121 (3d Cir. 2023); United States v.
Aguirre-Miron, 988 F.3d 683, 690 (3d Cir. 2021); United States v. Capps, 977 F.3d 250,
260-61 (3d Cir. 2020).

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