Skip to main content

“Identity theft” sentencing enhancement does not apply to altering addresses on clients’ financial statements

Update: On April 22, 2008, the Court filed the amended opinion. It appears to be substantially the same as the original.

Update: On April 17, 2008, the Court vacated its opinion and judgment sua sponte, explaining that an amended opinion will be filed forthwith.

In United States v. Hawes, No. 06-3334 (3d Cir. Mar. 27, 2008), the Court of Appeals held that the district court erroneously applied a two-level "identity theft" enhancement under § 2B1.1(b)(9)(C)(i) [now § 2B1.1(b)(10)(C)(i)] because the defendant’s conduct did not qualify for the enhancement. Hawes, an investment advisor, was convicted of defrauding his clients of monies that they had entrusted to him. As part of his fraudulent conduct, he changed the addresses to which his clients’ account statements were mailed so that the statements were sent directly to his office address. The Court held that changing an address does not constitute "produc[ing] or obtain[ing] any other means of identification," as required under § 2B1.1(b)(9)(C)(i). It explained that changing an address is similar to the application note’s examples of conduct that does not constitute identity theft, such as stealing an existing credit card or cashing a check from an existing bank account. It rejected the government’s contention that a "means of identification" includes a name plus any other piece of information; rather, the means of identification must be specific or unique. It also noted that "the change of address was to thwart the discovery of, not enable, the illicit activity." Finally, the Court held that Hawes did not "establish new credit or ‘breed’ new forms of identification, as contemplated by Congress and the Sentencing Commission in enacting this enhancement."

The Court further held that this error was not harmless and remanded for resentencing. It affirmed the lower court’s application of the vulnerable victim enhancement and the order of restitution.


Popular posts from this blog

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury…

Jurisdiction for revocation of supervised release where revocation also imposed in other District on concurrent case and local Probation Office was not supervising releasee

In United States v. Johnson, 2017 WL 2819210 (June 30, 2017),, the Third Circuit rejected two jurisdictional challenges to a revocation proceeding in one District where the defendant was also concurrently supervised and revoked in another District. For separate federal offenses in the Middle District of Florida and Virgin Islands, Johnson was serving two concurrent terms of supervised release. He was living in and supervised by the Middle District of Florida and had no contact with the Probation Office in the Virgin Islands. He committed a new offense in Florida and the Middle District revoked his supervised release. Johnson challenged revocation proceedings in the Virgin Islands. The Third Circuit found that the Virgin Islands maintained jurisdiction. It joined the Second and Fifth Circuits in finding that concurrent terms of supervised release do not merge: the term of supervised release in the Virgin Islands was not constructively d…

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.

The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force ca…