from the United States District Court for the District of New
Mexico (D.C. No. 1:14-CR-00922-JB-1)
A. Pori, Federal Public Defender, Albuquerque, New Mexico,
R.W. Braun, Assistant United States Attorney, (Damon P.
Martinez, United States Attorney, with him on the brief),
Albuquerque, New Mexico, for Plaintiff-Appellee.
HARTZ, MURPHY, and HOLMES, Circuit Judges.
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.
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) 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.
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.
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). 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).
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.
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
but also includes within the definition of victim
"(ii) any individual whose means of identification was
used unlawfully or without authority."These are the
provisions used by the district court.
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]."