Full Opinion (html_with_citations)

Appellate Case: 22-5112     Document: 010110973222        Date Filed: 12/22/2023     Page: 1
                                                                                    FILED
                                                                        United States Court of Appeals
                                        PUBLISH                                 Tenth Circuit

                       UNITED STATES COURT OF APPEALS                        December 22, 2023
                                                                            Christopher M. Wolpert
                              FOR THE TENTH CIRCUIT                             Clerk of Court
                          _________________________________

  UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

  v.                                                           No. 22-5112

  PAMELA KATHRYN CONLEY,

        Defendant - Appellant.
                       _________________________________

                      Appeal from the United States District Court
                        for the Northern District of Oklahoma
                           (D.C. No. 4:21-CR-00064-JFH-1)
                        _________________________________

 Lynn C. Hartfield, Law Office of Lynn C. Hartfield, LLC, Denver, Colorado, for
 Defendant – Appellant.

 Steven J. Briden, Assistant United States Attorney, (Clinton J. Johnson, United States
 Attorney with him on the brief), Tulsa, Oklahoma, for Plaintiff – Appellee.
                          _________________________________

 Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
                   _________________________________

 MATHESON, Circuit Judge.
                    _________________________________

       Pamela Kathryn Conley pled guilty to 24 counts of bank fraud and 4 counts of

 aggravated identity theft. The district court sentenced her to 30 months in prison for

 bank fraud and a consecutive 24 months for aggravated identity theft.
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        On appeal, Ms. Conley argues the district court erred in relying on the loss

 calculation in the presentence report (“PSR”) to determine her U.S. Sentencing

 Guidelines (“U.S.S.G.” or the “Guidelines”) range for bank fraud. She also argues

 that in light of Dubin v. United States,
599 U.S. 110
 (2023), the court plainly erred in

 accepting her guilty plea to aggravated identity theft.

        Exercising jurisdiction under
28 U.S.C. § 1291
, we vacate Ms. Conley’s

 sentence for bank fraud and remand for resentencing on those counts, and we affirm

 her convictions for aggravated identity theft.

                                    I. BACKGROUND

                                     A. Factual History

        Between September 2016 and August 2021, Ms. Conley applied for loans at seven

 financial institutions using false employment and salary information. She sought

 $1,028,643.20 in loans and received $998,643.20. She used various cars, boats, and

 trailers as collateral.

        In four instances, Ms. Conley used the names and forged signatures of financial-

 institution employees to create false lien releases for already encumbered vehicles. She

 used these lien releases to repledge the same vehicles as collateral for new loans.

                                   B. Procedural History

        A grand jury indicted Ms. Conley on 24 counts of bank fraud under
18 U.S.C. § 1344
 and 4 counts of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). She

 pled guilty, without a plea agreement, to all 28 counts.



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        The Probation Office’s PSR found the “loss” caused by Ms. Conley’s offense was

 $1,020,591.62, 1 which triggered a 14-level increase in Ms. Conley’s Guidelines offense

 level. Ms. Conley argued that the properly calculated loss amount should have been

 below $550,000, which would have triggered only a 12-level increase.

        At the sentencing hearing, the district court, over Ms. Conley’s objection, relied on

 the PSR’s loss amount to calculate her Guidelines range for bank fraud as 30 to

 37 months. The court sentenced her to 30 months in prison. It also sentenced her to a

 mandatory consecutive 24 months for aggravated identity theft, U.S.S.G. § 2B1.6, and

 three years of supervised release. The court ordered her to pay $451,064.64 in restitution.

        Ms. Conley timely appealed.

                                     II. DISCUSSION

        Ms. Conley raises two issues. First, she challenges the district court’s calculation

 of her Guidelines range for bank fraud. Second, she argues Dubin v. United States

 renders the court’s acceptance of her guilty plea to aggravated identity theft plainly

 erroneous. We vacate Ms. Conley’s sentence for bank fraud and remand for

 resentencing. We affirm her aggravated identity theft convictions.




        1
         The Probation Office reached this number by taking the amount of loans
 Ms. Conley sought ($1,028,643.00) and subtracting the value of one returned vehicle
 ($8,051.38). We detail the formula for loss below.

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                                     A. Loss Calculation

        The district court clearly erred in relying on disputed facts in the PSR to calculate

 Ms. Conley’s Guidelines range for bank fraud, making her sentence procedurally

 unreasonable.

    Legal Background

        a. Standard of review

        We review sentencing decisions for abuse of discretion. Peugh v. United States,
569 U.S. 530, 537
 (2013). “When reviewing a district court’s application of the

 Sentencing Guidelines, we review legal questions de novo and we review any factual

 findings for clear error.” United States v. Maldonado-Passage,
4 F.4th 1097, 1103

 (10th Cir. 2021) (alterations and quotations omitted).

        “A district court’s loss calculation at sentencing is a factual question we review for

 clear error.” United States v. Griffith,
584 F.3d 1004, 1011
 (10th Cir. 2009) (quotations

 omitted). 2 “[W]e may disturb the district court’s loss determination—and consequent



        2
          Although Ms. Conley describes her challenge to the loss calculation as a legal
 one, Aplt. Reply Br. at 3, the substance of her brief contests the factual basis for the loss
 number, Aplt. Br. at 10-18. For example, she argues the Government failed to present
 evidence supporting the loss amount and asks us to “remand for further findings” on the
 payments made and the value of recovered collateral. Id. at 17-18. The Government also
 treats her argument as factual, countering that her objection to the loss amount was
 “insufficient to trigger the district court’s factfinding responsibilities.” Aplee. Br. at 14.
 We may review a party’s argument according to its substance rather than the party’s
 characterization. See, e.g., Tucker v. Makowski,
883 F.2d 877, 881
 (10th Cir. 1989);
 Alcivar v. Wynne,
268 F. App’x 749, 754
 (10th Cir. 2008) (unpublished).
         We cite the unpublished cases in this opinion for their persuasive value. See Fed.
 R. App. P. 32.1(a); 10th Cir. R. 32.1(A).

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 Guidelines enhancement—only if the court’s finding is without factual support in the

 record or if, after reviewing all the evidence, we are left with a definite and firm

 conviction that a mistake has been made.” United States v. Mullins,
613 F.3d 1273, 1292

 (10th Cir. 2010) (quotations omitted).

        b. Procedural reasonableness and the Guidelines

        “[W]e evaluate sentences imposed by the district court for reasonableness.”

 United States v. Conlan,
500 F.3d 1167, 1169
 (10th Cir. 2007); see United States v.

 Booker,
543 U.S. 220, 261-62
 (2005). Ms. Conley challenges only the procedural

 reasonableness of her sentence. “Procedural reasonableness involves using the proper

 method to calculate the sentence.” Conlan,
500 F.3d at 1169
; see Gall v. United States,
552 U.S. 38, 51
 (2007). “In setting a procedurally reasonable sentence, a district court

 must calculate the proper advisory Guidelines range . . . .” United States v. Chee,
514 F.3d 1106, 1116
 (10th Cir. 2008) (quotations omitted); see Rosales-Mireles v. United

 States,
138 S. Ct. 1897, 1904
 (2018).

        “Any error in the Guidelines calculation renders a sentence procedurally

 unreasonable and, if the error is not harmless, requires remand.” United States v. Scott,
529 F.3d 1290, 1300
 (10th Cir. 2008); see also Peugh,
569 U.S. at 537
. When the

 government is the “beneficiary of the error,” it must prove harmlessness by a

 preponderance of the evidence. United States v. Sanchez-Leon,
764 F.3d 1248, 1262-63

 (10th Cir. 2014) (quotations omitted).




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        c. U.S.S.G. § 2B1.1

        U.S.S.G. § 2B1.1 provides a two-step formula to calculate the base offense level

 for § 1344 bank fraud convictions: (1) § 2B1.1(a) sets the base offense level, then

 (2) § 2B1.1(b) increases it based on specific offense characteristics.

        Section 2B1.1(b)(1) increases the base offense level according to the “loss” caused

 by the offense. 3 To calculate loss, the sentencing court must take “the greater of actual

 loss or intended loss,” U.S.S.G. § 2B1.1 cmt. n.3(A), then subtract certain “[c]redits” or

 deductions, id. § 2B1.1 cmt. n.3(E).

        “Actual loss” is the monetary harm that resulted from the offense. Id. § 2B1.1

 cmt. n.3(A)(i). 4 “Intended loss” is the monetary “harm that the defendant purposely

 sought to inflict,” regardless of the harm actually inflicted. Id. § 2B1.1 cmt. n.3(A)(ii).

 The greater of these amounts is the starting point for the loss calculation. Id. § 2B1.1

 cmt. n.3(A).

        The sentencing court then deducts (1) the amount of “money returned . . . by the

 defendant . . . to the victim before the offense was detected,” id. § 2B1.1 cmt. n.3(E)(i), 5




        3
         Section 2B1.1(b) calls for further adjustments based on other offense
 characteristics, but only § 2B1.1(b)(1) is relevant to this appeal.
        4
         Actual loss is limited to “reasonably foreseeable” harm. U.S.S.G. § 2B1.1 cmt.
 n.3(A)(i), (iv).
        5
         “The time of detection of the offense is the earlier of (I) the time the offense was
 discovered by a victim or government agency; or (II) the time the defendant knew or
 reasonably should have known that the offense was detected or about to be detected . . . .”
 U.S.S.G. § 2B1.1 cmt. n.3(E)(i).

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 and (2) the value of any collateral that the victim has recovered by the time of sentencing,

 id. § 2B1.1 cmt. n.3(E)(ii). 6

        In summary, loss is the greater of actual or intended loss, less (1) the money

 returned before detection of the offense and (2) the value of any collateral recovered

 before sentencing. 7 The resulting amount determines the increase to the defendant’s base

 offense level. Relevant here, the sentencing court increases the base offense level by 12

 if the loss is more than $250,000 and less than $550,000, and by 14 if the loss is more

 than $550,000 and less than $1,500,000. Id. § 2B1.1(b)(1).

        d. PSR at sentencing

        Sentencing courts often rely on facts in the PSR. Federal Rule of Criminal

 Procedure 32(i)(3) provides:

                At sentencing, the court:

                (A) may accept any undisputed portion of the [PSR] as a
                    finding of fact; [and]
                (B) must—for any disputed portion of the [PSR] or other
                    controverted matter—rule on the dispute or determine
                    that a ruling is unnecessary either because the matter
                    will not affect sentencing, or because the court will not
                    consider the matter in sentencing . . . .



        6
          The value of the collateral is “the amount the victim has recovered . . . from
 disposition of the collateral” or, if the victim has not disposed of the collateral, “the fair
 market value of the collateral at the time of sentencing.” U.S.S.G. § 2B1.1 cmt.
 n.3(E)(ii).
        7
         Loss = (the greater of actual or intended loss) – (the amount of money returned
 before detection of the offense) – (the value of any collateral recovered before
 sentencing).

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        “If a defendant fails to specifically object to a fact in the PSR, the fact is deemed

 admitted by the defendant and the government need not produce additional evidence in

 support of the admitted fact.” United States v. Hooks,
551 F.3d 1205, 1217
 (10th

 Cir. 2009). But “[w]hen a defendant objects to a fact in a [PSR]” and notifies the

 sentencing court that the fact is disputed, “the government must prove that fact at a

 sentencing hearing by a preponderance of the evidence.” United States v. Barnett,
828 F.3d 1189, 1192
 (10th Cir. 2016) (quotations omitted); see Fed. R. Crim. P. 32(i)(3).

 “The government can meet its burden by either presenting new evidence at sentencing or

 referring to evidence presented at trial.” United States v. McDonald,
43 F.4th 1090, 1095

 (10th Cir. 2022).

        A defendant objects to a fact in the PSR by “mak[ing] specific allegations of

 factual inaccuracy” rather than challenging only “the ultimate conclusions in the [PSR]”

 or “the inferences to be drawn” from the facts. Barnett, 838 F.3d at 1192-93, 1195

 (quotations omitted). “[T]he test is whether the district court was adequately alerted to

 the [factual] issue.” United States v. Harrison,
743 F.3d 760, 763
 (10th Cir. 2014).

        A sufficient objection may be “imprecise.” Id.; see United States v. E.F.,
920 F.3d 682, 687
 (10th Cir. 2019) (“All that is required to preserve an issue for appeal is that the

 party ‘informs the court of the party’s objection and the grounds for that objection.’”

 (alterations omitted) (quoting Fed. R. Crim. P. 51(b)). For example, we found it

 sufficient that a defendant said at sentencing, “There were several mistakes in . . . [t]he

 amounts that were on [the PSR],” and the district court confirmed that it understood the



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 defendant “disagree[d] with the probation officer’s calculation.” Harrison,
743 F.3d at 763
.

    Additional Procedural History

           a. PSR

           Ms. Conley’s PSR calculated her loss as $1,020,591.62, which increased her base

 offense level by 14. An addendum to the PSR explained that this number was calculated

 by taking the total amount of fraudulent loans that Ms. Conley sought ($1,028,643.00)

 and subtracting the value of one vehicle that was returned to a victim financial institution

 ($8,051.38).

           b. Written objections

           Ms. Conley received the draft PSR before her sentencing hearing. She filed

 written objections in a letter to the Probation Office, in which she objected that the loss

 amount had not been reduced by the amounts paid on the loans or the value of recovered

 collateral.

           c. Sentencing hearing

           At the sentencing hearing, the district court stated that it had “reviewed

 [Ms. Conley]’s [written] objections” and believed that it “fully underst[ood]” the

 objection. ROA, Vol. III at 40. 8




         The Probation Office issued a revised PSR the morning of Ms. Conley’s
           8

 sentencing hearing. The loss amount was changed from $1,028,643.00 to $1,020,591.62.

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         Ms. Conley told the court that she “maintain[ed] [her] objection with regard to the

  total loss for purposes of calculating the [Guidelines] enhancement on that basis.”
Id.

  She further explained that the commentary to U.S.S.G. § 2B1.1 “requires the court to

  reduce loss by any amounts, including the return of collateral or any money that is

  returned.” Id. at 41. And she again stated her belief “that the loss amount should be

  reduced by any return of property or any collection of collateral.” Id. at 42. She argued

  that the loss amount with the appropriate deductions would equal the restitution amount.

  Id. at 46.

         The Government responded that Ms. Conley was “conflating intended loss and

  actual loss,” id. at 46, and argued that her false lien releases meant that the “banks could

  not repossess their collateral,” id. at 47. It said that “for sentencing [the court should] go

  by the intended loss.” Id. The Government presented no evidence in support of the

  PSR’s loss calculation, and the district court did not request it. See id.

         The district court overruled Ms. Conley’s objection. It “believe[d] the intended

  loss [wa]s calculated correctly and . . . all amounts that were credited ha[d] been deducted

  from the intended loss.” Id. at 47-48. And it “d[id]n’t think there[] [was] any way . . . to

  calculate the intended loss less than $550,000 based upon [the PSR],” which would be

  required for Ms. Conley to receive a 12-level increase to her offense level rather than a

  14-level increase. Id. at 48. Finally, the court said that “for [Ms. Conley] to get credit for

  returned items or returned amounts . . . , she would have had to return that before

  detection, and that[] . . . doesn’t seem to be the case.” Id.



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         The district court then decided that “the [PSR] [would] form the factual basis for

  [its] sentence.” Id. at 62. It calculated Ms. Conley’s offense level as 19 with a criminal

  history category of I, 9 which resulted in a Guidelines range of 30 to 37 months. It

  sentenced her to 30 months in prison for bank fraud.

     Analysis

         a. Sufficiency of objection and the Government’s burden

         The Government argues Ms. Conley’s objections to the PSR were “insufficient to

  trigger the district court’s factfinding responsibilities.” Aplee. Br. at 14. We disagree.

         To determine whether her objections were sufficient, “the sole question is whether

  the district court was adequately alerted to the issue.” E.F.,
920 F.3d at 687
 (quotations

  omitted). Ms. Conley contested the loss amount in the PSR, insisting it did not include

  the appropriate deductions. The district court said it understood her to argue that

  “because her loans were collateralized . . . , because many of the loans were paid off with

  proceeds of new loans, and because various institutions recovered and/or set-off

  collateral, she’s entitled to have the loss reduced in the amount of restitution.” ROA,

  Vol. III at 46.

         Because restitution includes only actual damages and makes deductions that are

  excluded from the loss calculation, see 18 U.S.C. § 3663A(b), Ms. Conley was incorrect

  that the district court should have used the restitution amount as the loss amount.


         9
          The court started with the base offense level of 7 under U.S.S.G. § 2B1.1(a),
  added 14 levels under § 2B1.1(b), and subtracted 2 levels for acceptance of responsibility
  under § 3E1.1(a).

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  Nonetheless, she sufficiently alerted the district court that she disputed the PSR’s loss

  calculation. E.F.,
920 F.3d at 687
. Because her objections were sufficient under

  Rule 32(i)(3) and our case law, see Barnett,
828 F.3d at 1192-93
; E.F.,
920 F.3d at 687
;

  Harrison,
743 F.3d at 763
, the Government was required to prove the loss amount at the

  sentencing hearing by a preponderance of the evidence.

         b. Clear error and procedural unreasonableness

         The district court clearly erred by adopting the PSR’s loss calculation over

  Ms. Conley’s objection without requiring the Government to prove it by a preponderance

  of the evidence. “We repeatedly have held that a district court may not satisfy its

  obligation to make a finding as to controverted factual allegations regarding sentencing

  by simply adopting the PSR as its finding.” United States v. Wilken,
498 F.3d 1160, 1170

  (10th Cir. 2007) (alterations and quotations omitted); see also United States v. West,
550 F.3d 952, 974
 (10th Cir. 2008). Once Ms. Conley alerted the district court that she

  disputed the PSR’s loss calculation, the Government was required to present evidence at

  the sentencing hearing to support it. See McDonald,
43 F.4th at 1095
.

         The district court’s failure to hold the Government to its burden was procedurally

  unreasonable. “In setting a procedurally reasonable sentence, a district court must

  calculate the proper advisory Guidelines range . . . .” Chee,
514 F.3d at 1116
 (quotations

  omitted); see also Rosales-Mireles,
138 S. Ct. at 1904
 (“District courts must begin their

  analysis with the Guidelines and remain cognizant of them throughout the sentencing

  process.” (alterations and quotations omitted)). To do so, it cannot rely on a disputed loss

  calculation that the Government failed to prove by a preponderance. See Harrison,

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743 F.3d at 763-64
. The court clearly erred in relying on unproven facts in the PSR, and

  it therefore abused its discretion by “selecting a sentence based on clearly erroneous

  facts.” Gall,
552 U.S. at 51
.

         c. Harmlessness

         The district court’s error in relying on the PSR’s loss amount to calculate

  Ms. Conley’s Guidelines range was not harmless. A calculation error may be harmless if

  the district court nonetheless considers the correct Guidelines range. See Kristl, 437 F.3d

  at 1055; United States v. Tom,
494 F.3d 1277, 1282
 (10th Cir. 2007). The court did not

  do so here.

         At the close of the sentencing hearing, the district court said it would have reached

  the same Guidelines range even if it made the additional deductions urged by

  Ms. Conley. It said that it “d[id]n’t think there[] [was] any way . . . to calculate the

  intended loss less than $550,000 based upon [the PSR],” which would have been required

  to increase Ms. Conley’s base offense level by 12 rather than 14. ROA, Vol. III at 48.

  But this statement is “without factual support in the record.” Mullins,
613 F.3d at 1292

  (quotations omitted); see United States v. Wieck, No. 19-6075,
2021 WL 4949177
,

  at *10-11 (10th Cir. Oct. 25, 2021) (unpublished) (remanding for resentencing when the

  district court made the unsupported finding that even with “a liberal deduction . . . ,

  you’re still left with a net number in excess of 550,000”).

         The Government failed to prove by a preponderance of the evidence that the

  properly calculated loss would still be above $550,000. See Sanchez-Leon,
764 F.3d at 1262-63
. “[A] procedural error is not harmless if it requires us to speculate on whether

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  the court would have reached the same determination absent the error.” United States v.

  Gieswein,
887 F.3d 1054, 1062
 (10th Cir. 2018) (quotations omitted). Without record

  evidence supporting the PSR’s loss calculation, we cannot say that the district court’s

  error was harmless. We vacate Ms. Conley’s sentence for bank fraud and remand for

  resentencing on those counts. 10

                                 B. Aggravated Identity Theft

         As described above, Ms. Conley pled guilty to aggravated identity theft. She now

  argues the district court plainly erred in finding a factual basis for her plea after Dubin.

  We affirm.

     Plain Error Standard of Review

         Ms. Conley did not object to the court’s acceptance of her aggravated identity theft

  plea, so we review for plain error. United States v. Olano,
507 U.S. 725, 730
 (1993).

  “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial


         10
            The district court also said that 30 months was “the same sentence [it] would
  impose if given the broadest possible discretion and the same sentence [it] would impose
  notwithstanding any judicial findings of fact by adoption of the [PSR] or at th[e]
  [sentencing] hearing.” ROA, Vol. III at 76. We have “rejected the notion that district
  courts can insulate sentencing decisions from review by making such statements.”
  United States v. Burris,
29 F.4th 1232, 1239
 (10th Cir. 2022) (quotations omitted).
          This case stands in contrast, for example, to Sanchez-Leon, in which we held the
  district court procedurally erred by failing to consider the defendant’s deportability in
  sentencing.
764 F.3d 1248
. There, we held the error was harmless based on the court’s
  insistence that, even if it had considered deportability, it would have imposed the same
  sentence to avoid disparities with similarly situated defendants.
Id. at 1264-66
. The
  district court here did not provide a similar explanation. See United States v.
  PeĂąa-Hermosillo,
522 F.3d 1108, 1117-18
 (10th Cir. 2008) (concluding error was not
  harmless where district court failed to explain the reasoning behind alternative sentence
  of the same length).

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  rights, and which (4) seriously affects the fairness, integrity, or public reputation of

  judicial proceedings.” United States v. Gonzalez-Huerta,
403 F.3d 727, 732
 (10th Cir.

  2005) (en banc) (quotations omitted).

         An error is plain when it is “clear or obvious under current, well-settled law” at the

  time of appeal, meaning “either the Supreme Court or this court [has] addressed the

  issue.” United States v. Brooks,
736 F.3d 921, 930
 (10th Cir. 2013) (quotations omitted).

  “[I]n certain circumstances, the weight of authority from other circuits may make an error

  plain . . . .” United States v. Hill,
749 F.3d 1250, 1258
 (10th Cir. 2014) (quotations

  omitted).

     Legal Background

         a. Factual basis for a guilty plea

         To enter judgment on a guilty plea, the court must determine there is an

  appropriate factual basis for the plea. Fed. R. Crim. P. 11(b)(3). “To determine whether

  a factual basis exists for the defendant’s plea, the district court must compare the conduct

  admitted or conceded by the defendant with the elements of the charged offense to ensure

  the admissions are factually sufficient to constitute the charged crime.” United States v.

  Gonzales,
918 F.3d 808, 811-12
 (10th Cir. 2019) (quotations omitted).

         b. Title 18 U.S.C. § 1028A: Aggravated identity theft

         Title 18 U.S.C. § 1028A(a)(1) provides:

                Whoever, during and in relation to any felony violation
                enumerated in [18 U.S.C. § 1028A(c), including bank fraud],
                knowingly transfers, possesses, or uses, without lawful
                authority, a means of identification of another person, shall,


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                  in addition to the punishment provided for such felony, be
                  sentenced to a term of imprisonment of 2 years.

  A signature is a “means of identification” for § 1028A. United States v. Porter,
745 F.3d 1035, 1042-43
 (10th Cir. 2014).

         c. Dubin v. United States

         In between Ms. Conley’s sentencing and this appeal, the Supreme Court decided

  Dubin v. United States,
599 U.S. 110
 (2023). In Dubin, the Court resolved a circuit split

  over when a defendant “uses” another’s identification “in relation to” a predicate offense

  under 18 U.S.C. § 1028A(a)(1). Id. at 116. After defendant David Dubin conducted

  psychological testing on a patient, he submitted a bill to Medicaid that used the patient’s

  name but falsely inflated the reimbursement amount. Id. at 114. He was charged under

  § 1028A with aggravated identity theft during and in relation to healthcare fraud.

  Id at 114-15.

         The Court held that “§ 1028A(a)(1) is violated when the defendant’s misuse of

  another person’s means of identification is at the crux of what makes the conduct

  criminal.” Id. at 131. “[W]ith fraud or deceit crimes,” the means of identification is at

  the crux of the conduct’s criminality when it is “used in a manner that is fraudulent or

  deceptive . . . , [which] can often be succinctly summarized as [deception about] ‘who’ is

  involved.” Id. at 131-32. Because “the crux of [Mr. Dubin’s] fraud was a

  misrepresentation about . . . how and when services were provided to a patient, not who

  received the services,” the Court held that the identification was not at the crux of his

  conduct and vacated his conviction. Id. at 132.


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     Analysis

         Ms. Conley argues the district court plainly erred in accepting her plea under

  Rule 11(b)(3) because her use of the employees’ signatures to create fake lien releases

  was not at the “crux” of her fraud and thus, in light of Dubin, was not factually sufficient

  to constitute aggravated identity theft. Aplt. Br. at 25-27.

         Any error here was not plain. Under the second prong of plain error review, we

  will reverse a district court’s decision only if it is “contrary to well-settled law” at the

  time of the appeal. United States v. Whitney,
229 F.3d 1296, 1309
 (10th Cir. 2000).

  Accepting Ms. Conley’s plea was not contrary to well-settled law. Neither (1) the

  Supreme Court, (2) our circuit, nor (3) any other circuit has addressed the issue presented

  in Ms. Conley’s case.

         First, since Dubin, the Supreme Court has not applied its crux test or provided

  further guidance on how to do so. And the facts in Dubin differ significantly from those

  here.
599 U.S. at 114
. Mr. Dubin treated the patients that he named in his

  reimbursement requests, changing only the amount of the reimbursement.
Id.
 The Court

  relied on the distinction between “how and when services were provided . . . [and] who

  received the services.”
Id. at 132
. By contrast, Ms. Conley falsified both the substance

  of the lien releases and who had authored them.

         Second, this circuit has applied Dubin’s test only once in an unpublished decision,

  noting without explanation that the government met its burden to show a forged signature

  was “used in a manner that is fraudulent or deceptive” and “play[ed] a key role” in the

  crime. United States v. Herman, Nos. 22-8057, 22-8061,
2023 WL 6861766
, at *8 n.6

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  (10th Cir. Oct. 18, 2023) (unpublished) (quoting Dubin,
599 U.S. at 129, 132
). Herman

  does not settle the law. Unpublished decisions are not precedential. 10th Cir. R. 32.1;

  see also United States v. Story,
635 F.3d 1241, 1248
 (10th Cir. 2011) (finding “no

  controlling circuit . . . precedent” where neither of the relevant cases were “published or

  binding on this court or the district courts”).

         Further, Herman involved a scheme to “control[] a publicly traded company,

  artificially inflat[e] the value of the company’s shares, and then sell[] [the] shares.”
2023 WL 6861766
, at *1. The defendant used a forged signature to create a “fake

  attorney-opinion letter.”
Id. at *2
. We did not explain why this letter was at the “crux”

  of the defendant’s criminal conduct or what evidence the government presented at trial to

  show the signature “play[ed] a key role” in the scheme.
Id.
 at *8 n.

         Third, as for other circuits, only the Eleventh and Fifth Circuits have applied

  Dubin’s test. The Eleventh Circuit did so in United States v. Gladden,
78 F.4th 1232

  (11th Cir. 2023), which, like Dubin, was a healthcare fraud case that bears little factual

  resemblance to Ms. Conley’s case. See
id. at 1238-40, 1248
. The Fifth Circuit applied

  Dubin to find that a defendant who forged employment paperwork was properly

  convicted of aggravated identity theft. United States v. Croft, Nos. 21-50380, 22-50659,
2023 WL 8292809
 (5th Cir. Dec. 1, 2023). Neither case supports Ms. Conley’s

  argument. And two opinions from our sister circuits do not constitute “the weight of

  authority from other circuits” needed to establish plain error. Hill,
749 F.3d at 1258
.

         Neither “the Supreme Court [n]or this court [has] addressed the issue” presented in

  Ms. Conley’s case, Brooks,
736 F.3d at 930
, and no other circuit court has applied

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  Dubin’s test to bank fraud. Without more definitive legal authority, any error in

  accepting Ms. Conley’s guilty plea cannot be plain. We affirm.

                                     III. CONCLUSION

         We vacate Ms. Conley’s sentence for bank fraud and remand for resentencing on

  her bank fraud convictions. We affirm her convictions for aggravated identity theft. 11




         11
              We also deny Ms. Conley’s motion to expedite as moot.


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