United States v. Lumbard

Citation706 F.3d 716
Decision Date07 February 2013
Docket NumberNo. 12–1209.,12–1209.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Nathan LUMBARD, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

OPINION TEXT STARTS HERE

ARGUED:Anastase Markou, Levine & Levine, Kalamazoo, Michigan, for Appellant.

Jennifer L. McManus, United States Attorney's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF:Anastase Markou, Levine & Levine, Kalamazoo, Michigan, for Appellant. Clay Stiffler, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.

Before: MARTIN and BOGGS, Circuit Judges; and COLLIER, District Judge.*

OPINION

COLLIER, District Judge.

Whether purchasing personal information from its possessor for subsequent use in fraudulent activity constitutes aggravated identity theft within the purview of 18 U.S.C. § 1028A(a)(1) is the key issue in this appeal. Appellant Nathan Lumbard (Lumbard) argues it is not, and also argues his sentence is procedurally and substantively unreasonable. Finding neither argument has merit, we AFFIRM the district court's judgment.

I

On June 24, 2009, Lumbard was arrested by state authorities in Michigan on two warrants, which included charges of breaking and entering, destruction of a building, and larceny. He was released on a $100,000 bond. Other outstanding warrants charged Lumbard with aggravated battery, obstruction of justice, receiving stolen property, and other crimes. In July 2009, a St. Joseph County Sheriff's Deputy attempted to arrest Lumbard pursuant to another warrant, but Lumbard fled on foot and successfully evaded arrest.

After eluding capture, Lumbard was introduced to Justin Cheesebrew by a mutual acquaintance who believed the two resembled one another. Lumbard contacted Cheesebrew to discuss purchasing his driver's license. During this conversation, Lumbard agreed to purchase Cheesebrew's driver's license, social security number, and birth certificate for $500. However, when Lumbard actually purchased the information, Cheesebrew merely told him his birth date and social security number and did not provide Lumbard with his social security card or his birth certificate. He did, however, respond to Lumbard's questions about his place of birth and identifying information about his parents.

Lumbard used the information to apply for a driver's license and obtain a copy of Cheesebrew's birth certificate at the Ingham County Clerk's Office. He also submitted an application for a United States Passport in Cheesebrew's name, using the driver's license and birth certificate he obtained from the Ingham Clerk as proof of identification. Lumbard listed Cheesebrew's information for all portions of the passport application except for the address to which the passport would be sent, where he listed his father's address. He paid a fee for his application to be expedited, and received a passport with Cheesebrew's information, but his own photograph, in August 2009. He flew from Los Angeles, California to Tokyo, and later traveled to Thailand and Burma. Before leaving for Tokyo, Lumbard placed a suitcase with an attached suicide note on a bridge near Cairo, Illinois. He left a voice mail for a St. Joseph County Sheriff's deputy explaining they would find him shortly and they could “kiss [his] cold, white, wet a* *.” Authorities searched the river near the bridge where the suicide note was found for Lumbard's body.

In January 2011, Lumbard was located by the U.S. Department of State Diplomatic Security Service in Burma. They informed Burmese officials that Lumbard was traveling under an assumed name and requested authorities arrest him. Burmese officials arrested him in January 2011 and returned him to United States custody. According to a field report prepared by the Diplomatic Security Service, Lumbard told Burmese officials to transport him to Bangkok rather than the United States, and attempted to stab a Burmese officer with an improvised knife when they refused. Lumbard was then escorted by some twenty Burmese officers to the airport, with Lumbard screaming he was being kidnapped. Lumbard claims he attempted to stab the Burmese official because he wanted to be charged in Burma, which would have prevented his extradition.

Once back in the United States, Lumbard informed officials he fled to avoid facing the criminal charges against him. He also informed officials of his exchange with Cheesebrew. On December 16, 2010, Lumbard was indicted for falsely representing information in an application for a passport and knowingly providing false identifying documents in violation of 18 U.S.C. § 1542. He was also indicted for using the name, social security number, date of birth, and driver's license of another person to obtain a passport in violation of 18 U.S.C. § 1028A(a)(1) and (c)(7), which criminalizes aggravated identity theft. Lumbard moved to dismiss the second count, which the district court denied. Lumbard then pleaded guilty to the charges but reserved the right to appeal the district court's denial of his motion to dismiss the aggravated-identity-theft charge. Pursuant to the United States Sentencing Guidelines (“USSG”), the district court determined Lumbard's offense level was 10 and his criminal history category was II, which resulted in a guidelines range of 8–14 months in prison on count one and a mandatory two-year consecutive sentence on count two. The court granted the government's motion for an upward departure pursuant to USSG § 4A1.3, and increased Lumbard's offense level to 14. The initial Guidelines fine range was $2,000 to $20,000, but the Probation Office concluded Lumbard did not have the ability to pay a fine. After the court departed upward, Lumbard's new Guidelines fine range was $4,000 to $40,000. The district court sentenced Lumbard to 24 months on both counts to be served consecutively for a total of 48 months. The court also assessed a $30,000 fine.

On appeal, Lumbard argues the district court erred in denying his motion to dismiss the count of aggravated identity theft. He also argues his sentence is procedurally and substantively unreasonable.

II

Lumbard alleges he should not have been convicted of violating 18 U.S.C. § 1028(a)(1) as a matter of law. This is a question of statutory interpretation, and [a] matter requiring statutory interpretation is a question of law requiring de novo review.’ Roberts v. Hamer, 655 F.3d 578, 582 (6th Cir.2011) (quoting United States v. Brown, 639 F.3d 735, 737 (6th Cir.2011)).

Lumbard also argues the imposition of a $30,000 fine was procedurally and substantively unreasonable. This court applies a plain-error standard of review where, as here, a defendant fails to raise a claim during the sentencing procedures. United States v. Mahon, 444 F.3d 530, 532 (6th Cir.2006); United States v. Swanberg, 370 F.3d 622, 627 (6th Cir.2004). In Bostic, we created a rule under our supervisory powers requiring district courts to ask the parties if they have any objections to the sentence pronounced. United States v. Bostic, 371 F.3d 865, 872 (6th Cir.2004). A party must object with a reasonable degree of specificity to adequately preserve an objection. Id. at 871. Where the objection is not sufficiently articulated, this court will review for plain error. Id. at 872.

The plain-error inquiry is a four-step process under Rule 52(b) of the Federal Rules of Criminal Procedure:

First, we are to consider whether an error occurred in the district court. Absent any error, our inquiry is at an end. However, if an error occurred, we then consider if the error was plain. If it is, then we proceed to inquire whether the plain error affects substantial rights. Finally, even if all three factors exist, we must then consider whether to exercise our discretionary power under Rule 52(b), or in other words, we must decide whether the plain error affecting substantial rights seriously affected the fairness, integrity or public reputation of judicial proceedings.

Mahon, 444 F.3d at 533.

The question of whether a sentence is substantively reasonable is determined using an abuse-of-discretion standard of review. United States v. Carter, 510 F.3d 593, 600 (6th Cir.2007) (citing Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). “When conducting this review, the court will, of course, take into the account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. This court gives district courts considerable discretion in this area and they “deserve the benefit of the doubt when we review their sentences and the reasons given for them.” United States v. Vonner, 516 F.3d 382, 392 (6th Cir.2008).

III

Section 1028A of Title 18 of the United States Code imposes a sentence of two years of imprisonment on a defendant who “during and in relation to a felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” Lumbard argues the phrase “without lawful authority” excludes cases, such as this one, where a defendant obtains a person's consent to use his or her information unlawfully; that is, Lumbard urges we take the section title “Aggravated Identity Theft” literally and read the statute to require actual theft. We touched briefly on the issue in United States v. Mobley, 618 F.3d 539 (6th Cir.2010), but it was not squarely before us there. Many of our sister circuits have heard this issue and concluded the statute is not limited to instances of actual theft. See United States v. Spears, 697 F.3d 592 (7th Cir.2012); United States v. Ozuna–Cabrera, 663 F.3d 496 (1st Cir.2011); United States v. Retana, 641 F.3d 272 (8th Cir.2011); United States v. Abdelshafi, 592 F.3d 602 (4th Cir.2010); United States v. Carrion–Brito, 362 Fed.Appx. 267 (3d Cir.2010); United States v. Hurtado, 508 F.3d 603 (11th Cir.2007), abrogated in part on other grounds...

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