U.S. v. Kleiner
2014 WL 4290395
United States Court Of Appeals for the Second Circuit
Decided on: September 2, 2014
Stolen Identity: Fake ID Used To Access Financial Information
Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer
Issue: Whether the District Court erred in applying a two-level enhancement under the U.S. Sentencing Guidelines §2B1.1(b)’s clause of use by “any means of identification” unlawfully to produce or obtain any other means of identification where the Defendant used a counterfeit driver’s license to perpetrate bank fraud.
Summary: Defendant telephoned TD Bank and represented himself to be Richard J. Butler, an actual customer of the bank. He advised a bank representative that he wished to schedule a cash withdrawal of $ 74,000 for the following day.
See Also: Harmless-Error Analysis Versus Plain-Error Analysis On Appellate Review
That day, he walked into TD Bank and presented a teller with a $74,000 withdrawal slip and a New Jersey driver’s license in the name of Richard J. Butler Jr., but bearing his own photograph. He was arrested and charged with bank fraud and aggravated identify theft. Defendant pleaded guilty to the fraud charge.
In his Presentence Report calculation of his Sentencing Guidelines range, the Probation Department concluded that the base offense level of seven warranted two enhancements: (1) an eight-level increase for an intended loss greater than $70,000 but less than $120,000; and (2) a two-level increase for the unauthorized use of any means of identification unlawfully to produce or obtain any other means of identification.
Defendant opposed the two-level enhancement maintaining that was is not intended to apply to a Defendant who has simply transferred a person’s identifying information onto a counterfeit driver’s license or credit card. The District Court denied his application and Defendant filed a timely appeal to the Court of Appeals for the Second Circuit.
Holding: The Court of Appeals for the Second Circuit held that the copying of the victim’s name onto a counterfeit driver’s license that Defendant then used to try to perpetrate bank fraud supported a §2B1.1(b)(11)(C)(i) enhancement in the calculation of his Sentencing Guidelines range.
Under U.S.S.G §2B1.1(b)(11)(C)(i), the term “means of identification” is statutorily defined as: any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any (A) name, social security, number, date of birth, official State or Government issued driver’s license or identification number, alien registration number, Government passport number, employer or taxpayer identification number.
Facts: Defendant telephoned TD Bank and represented himself to be Richard J. Butler, an actual customer of the bank. He advised a bank representative that he wished to schedule a cash withdrawal of $ 74,000 for the following day.
That day, he walked into TD Bank and presented a teller with a $74,000 withdrawal slip and a New Jersey driver’s license in the name of Richard J. Butler Jr., but bearing his own photograph. He was arrested and charged with bank fraud and aggravated identify theft. Defendant pleaded guilty to the fraud charge.
In his Pre-sentence Report calculation of his Sentencing Guidelines range, the Probation Department concluded that the base offense level of seven warranted two enhancements: (1) an eight-level increase for an intended loss greater than $70,000 but less than $120,000; and (2) a two-level increase for the unauthorized use of any means of identification unlawfully to produce or obtain any other means of identification under § 2B1.1(b)(11)(C)(i),
Defendant opposed the two-level enhancement maintaining that it was not intended to apply to a Defendant who has simply transferred a person’s identifying information onto a counterfeit driver’s license or credit card. Rather, a false identification document which 18 U.S.C. § 1028(d)(4) defines as a document of a type intended or commonly accepted for the purposes of identification of individuals that deceitfully appears to have been issued under Governmental authority. The District Court denied his application and Defendant timely filed an appeal to the Court of Appeals for the Second Circuit.
Legal Analysis: The Court of Appeals for the Second Circuit held that they review de novo all questions of law relating to the District Court’s application of a sentencing enhancement, United States v. Allen, 750 F.3d 209, 212 2d Cir. 2014, and they review for clear error for the District Court’s findings of fact supporting its conclusion, United States v. Hertular, 562 F.3d 433, 449 2d. Cir.2009. In this case Defendant was assessed with two additional points under §2B1.1(b)(11)(C), which focuses principally on an aggravated form of identity theft known as ‘ affirmative identity theft or ‘breeding’, in which a Defendant uses another individual’s name, social security number, or some other form of identification to produce or obtain new or additional forms of identification.
The Guideline’s language is in two parts: If the offense involved (C)(i), the unauthorized transfer or use of any means of identification unlawfully to produce of obtain any other means of identification, or (ii) the possession of 5 or more means of identification that unlawfully were produced from, or obtained by the use of, another means of identification, increase the offense level by 2 levels.
U.S.S.G. §2B1.1(b)(11), the term “means of identification” reference in both subparts, is statutorily defined to include the following: any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual. Here, Defendant Kleiner argues that application of a §2B1.1(b)(11)(C)(i) enhancement to his case was error for two reasons.
First he argues that adding Richard Butler’s name to additional documents, where a counterfeit driver’s license and counterfeit credit cards, does not produce “a means of identification” because the statutory definition of that term refers to information and not to documents. Specifically, Defendant argues that a counterfeit driver’s license is not a name or number that may be used to identify a specific individual, 18 U.S.C.§ 1028(d)(7), nor is it akin to any other “means of identification” spelled in that statue. Rather, he contends that it is a “false identification document”, which 18 U.S.C.§ 1028(d)(4) defines as a “document of a type intended or commonly accepted for the purpose of identification of individuals’ that deceitfully appears to have been issued under Governmental authority.
Second, Defendant argues that the Guideline’s reference to “any other means of identification” indicated that there must be two separate and distinct means of identification. Thus, where a name of identification number is merely copied to a new document, the enhancement does not apply.
The Court of Appeals for the Second Circuit relies on United States v. Sash, 396 F.3d 515 2d Cir.2005. It concluded that a badge or shield number is a “means of identification”, and that, when the Defendant in that case created a duplicate he was producing a means of identification from another means of identification under the plan meaning of the Enhancement. In support, Sash quoted United States v. Melendrez, in which the Ninth Circuit held contrary to what Defendant in this case urges here—that an unlawfully produced duplicate means of identification still subjects a defendant to the §2B1.1(b)(11)(C) enhancement because there is no requirement that the source ID number and the produced ID number be different numbers.
Although Sash construed ‘means of identification’ under §2B1.1(b)(11)(C)(ii), and the enhancement in this case was imposed under §2B1.1(b)(11)(C)(i), the Court of Appeals held that they identified no reason for treating identical terms in the same Guideline differently.
When construing Sentencing Guidelines the Court employs basic rules of statutory construction, United States v. Mason, 692 F.3d 178, 182 2d. Cir.2012, and applies the normal rule that identical works used in different parts of the same act are intended to have the same meaning, Department of Revenue of Or. v. ACF Indus., Inc. 510 U.S. 332, 342, 114 S.Ct. 843, 127 L.Ed.2d. To ensure that the term “means of identification” in §2B1.1(b)(11)(C)(i) is construed to have the same meaning as the term in §2B1.1(b)(11)(C)(ii), the Court held that they must follow Sash, and concluded that a driver’s license, and not simply the number it displays, is “a means of identification.” Therefore, Defendant’s copying of Richard J. Butler’s name onto a counterfeit driver’s license that he then used to try to perpetrate bank fraud supported a § 2B1.1(b)(11)(C)(i) enhancement in the calculation of his Sentencing Guidelines range. The Court of Appeals for the Second Circuit affirmed the judgment of the District Court.