Tuesday, June 25, 2019

Mandatory Consecutive Sentence for Aggravated Identity Theft Does Not Foreclose Enhancement of Underlying Sentence for Use of Device-Making Equipment in Stealing IDs

In United States v. A.M., No. 18-1120 (June 20, 2019), the Court holds that defendants subject to a mandatory two-year prison sentence for aggravated identity theft may still face enhancement of their Sentencing Guidelines range on other counts based on conduct relating to the identity theft.

By means of skimming devices and “PIN-pad overlays,” appellant A.M. captured victims’ account information and PINs from ATMs and then used the information to make counterfeit debit cards that allowed him to buy goods and withdraw cash. Following his indictment, he pled guilty to one count of bank fraud, in violation of 18 U.S.C. § 1344, and one count of aggravated identity theft, in violation of 18 U.S.C. § 1028A. The latter statute mandates a two-year consecutive sentence for stealing a “means of identification of another person” during and in relation to a range of enumerated federal offenses, including bank fraud. Commentary to the applicable sentencing guideline directs that in light of the consecutive sentence, the range on the underlying offense should be calculated without application of “any specific offense characteristic for the transfer, possession, or use of a means of identification.”  U.S.S.G. § 2B1.6 cmt. n.2.

Citing the commentary, A.M. argued that his sentencing range had been miscalculated on the bank fraud count by application of a two-level enhancement for the use of device-making equipment to create the counterfeit debit cards. See U.S.S.G. § 2B1.1(b)(11)(A)(i). The Court disagrees, reasoning that “using device-making equipment is different from possessing, transferring, or using ‘a means of identification.’” While such “equipment can be used to copy a means of identification,” it is “not itself a means of identification. The Guidelines bar only enhancements for using the latter.” Nor does the Court find persuasive A.M.’s argument that application of the enhancement punishes him twice for the same conduct. “His aggravated-identity-theft sentence punishes his use of customers’ stolen PINs and account numbers; his bank-fraud-sentence enhancement punishes his using equipment to make fake debit cards with that stolen information.” Citing cases from four circuits, the Court states that all are in accord with its construction.

Separately, the Court rejects A.M.’s contention that the district court erred in refusing to depart below the two-year mandatory minimum provided by 18 U.S.C. §1028A. While A.M. asserted that the government breached a plea agreement in declining to move for a downward departure pursuant to 18 U.S.C. § 3553(e), the Court reads the plea agreement not to have obligated the government to do so. Nor did the government’s motion for a Guidelines departure pursuant to U.S.S.G. § 5K1.1 authorize a sentence below the statutory minimum.

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