United States v. George, 010920 FED4, 19-4125

Docket Nº:19-4125
Opinion Judge:FLOYD, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellant, v. LESTER DEAN GEORGE, Defendant-Appellee.
Attorney:Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellee. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Gabriel J. Di...
Judge Panel:Before KEENAN, FLOYD, and RICHARDSON, Circuit Judges.
Case Date:January 09, 2020
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellant,

v.

LESTER DEAN GEORGE, Defendant-Appellee.

No. 19-4125

United States Court of Appeals, Fourth Circuit

January 9, 2020

Argued: October 31, 2019

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (5:18-cr-00133-BO-1)

ARGUED:

Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant.

Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellee.

ON BRIEF:

Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Gabriel J. Diaz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant.

Kelly Margolis Dagger, ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellee.

Before KEENAN, FLOYD, and RICHARDSON, Circuit Judges.

FLOYD, CIRCUIT JUDGE.

The case before us presents a question of first impression for this Court: whether the term, "another person," in the federal aggravated identity theft statute includes deceased, in addition to living, victims of identity theft. 18 U.S.C. § 1028A(a)(1). The district court below held that it does not. Therefore, the court allowed the defendant, Lester Dean George, to withdraw his guilty plea to the count of aggravated identity theft and dismissed that count. The Government appealed. For the following reasons, we vacate the district court's judgment and remand for resentencing.

I.

George, a citizen of Trinidad and Tobago, entered the United States on a temporary visa that permitted him to stay until 1987.1 George overstayed his visa and unlawfully remained in the United States. On May 17, 2013, George used the means of identification of a deceased victim ("Victim") in connection with purchasing a residence in North Carolina. In particular, he used the Victim's name, date of birth, and social security number in an attempt to secure a home loan insured by the United States Department of Housing and Urban Development.

On April 19, 2018, George was charged in a two-count indictment with: false representation of a social security number, in violation of 42 U.S.C. § 408(a)(7)(B), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).

On September 11, 2018, George pleaded guilty to both counts, without a plea agreement.

On December 17, 2018, George moved to withdraw his guilty plea as to the aggravated identity theft count on the basis that the district court had previously ruled that a defendant could not be convicted of aggravated identity theft if the victim whose identity was stolen was already deceased.

On January 18, 2019, at George's sentencing hearing, the district court granted his motion to withdraw his guilty plea as to the aggravated identity theft count and dismissed the count. On the remaining false representation of a social security number count, George was sentenced to time served.

The Government timely appealed, arguing that the district court erred in allowing George to withdraw his guilty plea and dismissing the aggravated identity theft count.

II.

The question presented here is whether the term "person" in the aggravated identity offense provision at issue, 18 U.S.C. § 1028A(a)(1), includes deceased persons. As it is a matter of statutory interpretation, this Court conducts a de novo review. Clark v. Absolute Collection Serv., Inc., 741 F.3d 487, 489 (4th Cir. 2014).

A.

When interpreting a statute, courts must "first and foremost strive to implement congressional intent by examining the plain language of the statute." United States v. Abdelshafi, 592 F.3d 602, 607 (4th Cir. 2010) (quoting United States v. Passaro, 577 F.3d 207, 213 (4th Cir. 2009)). As a result, "[a]bsent ambiguity or a clearly expressed legislative intent to the contrary," id. (quoting United States v. Bell, 5 F.3d 64, 68 (4th Cir. 1993)), we apply the plain meaning of the statute, which is "determined by reference to its words' 'ordinary meaning at the time of the statute's enactment, '" id. (quoting United States v. Simmons, 247 F.3d 118, 122 (4th Cir. 2001)).

Beyond the general tools of statutory interpretation, "special considerations govern[] the interpretation of criminal statutes." United States v. Hilton, 701 F.3d 959, 966 (4th Cir. 2012). Criminal statutes are "strictly construed and should not be interpreted to extend criminal liability...

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