01-3251 U.S. v. Baronia

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“At the time of Baronia’s sentence, the commentary to sec. 2B5.1 identified the following exception to the enhancement for certain counterfeiters:

‘Subsection (b)(2) does not apply to persons who merely photocopy notes or otherwise produce items that are so obviously counterfeit that they are unlikely to be accepted even if subjected to only minimal scrutiny. U.S.S.G. sec. 2B5.1, cmt. n.4. Baronia reads Application Note 4 as exempting from the enhancement counterfeiters who either (1) produce fake bills by photocopying or (2) produce an obvious forgery by some other method. He does not contend that the bills he made were “obviously counterfeit.” Instead, he argues that because his method of scanning the bills onto his computer was the functional equivalent of photocopying, section (b)(2) should not apply.’

“We disagree with Baronia’s reading of Application Note 4. We do not read the language as creating two separate and distinct situations in which section (b)(2) would not apply. The ‘obviously counterfeit’ language in the note modifies and limits both the ‘merely photocopy’ and the ‘otherwise produce’ language, and therefore the note describes only one situation: when the method used by the counterfeiter produces an obvious forgery-whether by photocopying or some other method. See United States v. Stanley, 23 F.3d 1084, 1086 (6th Cir. 1994).

“The proper inquiry for exclusion from subsection (b)(2) is not how the bills were made, but rather how well they were made. Under Baronia’s reading, the counterfeiter who uses a photocopier is off the hook regardless of the quality of the counterfeit items. This reading conflicts with the purpose of the enhancement and has been rejected by every circuit to consider the question.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Shadur, J., Williams, J.