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United States v. Gonzales

United States Court of Appeals, Tenth Circuit

December 29, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JASONN GONZALES, Defendant-Appellant.

         Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:14-CR-00922-JB-1)

          Brian A. Pori, Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

          James R.W. Braun, Assistant United States Attorney, (Damon P. Martinez, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

          Before HARTZ, MURPHY, and HOLMES, Circuit Judges.

          HARTZ, Circuit Judge.

         Defendant Jasonn Gonzales pleaded guilty in the United States District Court for the District of New Mexico to four counts of mail fraud, see 18 U.S.C. § 1341, one count of conspiracy to commit mail fraud, see 18 U.S.C. §§ 1341 and 1349, and one count of aggravated identity theft, see 18 U.S.C. § 1028A, arising out of his fraudulent scheme to obtain unemployment benefits from three state agencies. On appeal his sole argument is that the district court erred in calculating his sentencing-guidelines offense level by including as victims those persons whose identities had been stolen even though they suffered no financial loss. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

         I. BACKGROUND

         From January 2009 through May 2012, Defendant and Gerald Archuleta tricked unemployment agencies in Texas, Colorado, and New Mexico into sending them prepaid debit cards for unemployment benefits for unqualified people. They registered fake companies with the agencies and paid unemployment taxes for them, listing real people (with correct social security numbers and other personal information[1]) as employees of the companies. They then submitted unemployment-benefit claims on behalf of those people. The unemployment agencies mailed the debit cards to post office boxes rented by the two men, who used the cards for their personal benefit.

         Law-enforcement officers searched Defendant's home on May 22, 2012, and found substantial evidence of the scheme. For reasons not apparent in the record on appeal, Defendant was not indicted until almost two years later, on March 26, 2014. He pleaded guilty on August 18, 2014, to all charges without the benefit of a plea agreement.

         When calculating Defendant's offense level for the mail-fraud and conspiracy charges, the probation office's presentence report (PSR) started with a base level of 7. See USSG § 2B1.1(a)(1) (2014) (guideline for theft offenses).[2] It raised the level because of three special offense characteristics, adding 16 levels for an intended loss over $1 million, see id. § 2B1.1(b)(1)(I), two levels for Defendant's use of sophisticated means, see id. § 2B1.1(b)(10)(C), and four levels because the number of victims exceeded 50, see id. § 2B1.1(b)(2)(B). The PSR then added four levels because Defendant was an organizer or leader, see id. § 3B1.1(a), and subtracted three levels for acceptance of responsibility, resulting in an offense level of 30. With Defendant's criminal-history category of II, his guidelines sentencing range was 108 to 135 months' imprisonment. For Defendant's aggravated-identity-theft conviction, the PSR added the mandatory consecutive two-year prison term. See 18 U.S.C. § 1028A; see also USSG § 2B1.6 (guideline for aggravated identity theft).

         Defendant objected to the number-of-victims enhancement on the ground that the only financial losses from the scheme were suffered by the three state agencies. The PSR counted 107 victims, however, because application note 4(E)(ii) to USSG § 2B1.1 defines victim to include "any individual whose means of identification was used unlawfully or without authority." Defendant argued that the application note could not be used in calculating his sentence because he was also being sentenced for aggravated identity theft under 18 U.S.C. § 1028A, and for someone so sentenced application note 2 to USSG § 2B1.6 prohibits applying any enhancement "for the transfer, possession, or use of a means of identification." At sentencing on December 4, 2014, the district court overruled the objection, adopted the PSR's guidelines calculation, and varied downward for an ultimate sentence of 111 months' imprisonment.

         II. DISCUSSION

         Several guidelines provisions are central to our discussion. Section 2B1.1(b)(2) states: "If the offense . . . involved 50 or more victims, increase [the offense level] by 4 levels." USSG § 2B1.1(b)(2). Application note 4(E) to that section defines victim where, as here, the case "involve[s] means of identification." The note incorporates the general definition in application note 1[3] but also includes within the definition of victim "(ii) any individual whose means of identification was used unlawfully or without authority."[4]These are the provisions used by the district court.

         Defendant's arguments rest on an application note to the guidelines provision concerning his conviction for aggravated identity theft under 18 U.S.C. § 1028A. The guideline states: "If the defendant was convicted of violating 18 U.S.C. § 1028A, the guideline sentence is the term of imprisonment required by statute [two years]." ...


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