United States v. Ozuna-Cabrera

• Decision Date: 02 November 2011
• Docket Number: No. 09–2174.,09–2174.
• Parties: UNITED STATES of America, Appellee, v. Yeifrin Rafael OZUNA–CABRERA, a/k/a Jeffrey Ozuna, a/k/a Howard Edward Bond, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

663 F.3d 496

UNITED STATES of America, Appellee,

v.Yeifrin Rafael OZUNA–CABRERA, a/k/a Jeffrey Ozuna, a/k/a Howard Edward Bond, Defendant, Appellant.

No. 09–2174.

United States Court of Appeals, First Circuit.

Heard Sept. 9, 2010.Decided Nov. 2, 2011.

Lisa Aidlin for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges.

HOWARD, Circuit Judge.

Yeifrin Rafael Ozuna–Cabrera appeals his conviction for aggravated identity theft, 18 U.S.C. § 1028A, and the reasonableness of his 70–month prison sentence. After careful review, we affirm.

I. Background

The pertinent facts are uncomplicated. On March 19, 2008, Ozuna–Cabrera applied for a U.S. passport under the alias “Howard E. Bond.” In support of the application, he presented an expired U.S. passport that bore Howard Bond's name, but Ozuna–Cabrera's picture. The inconsistency was promptly discovered, and upon his arrest, Ozuna–Cabrera admitted to purchasing the once-valid passport, as well as a social security card, from the real Howard Bond.

Facing multiple charges, Ozuna–Cabrera pled guilty in March 2009 to two counts of false statements in a passport application, 18 U.S.C. § 1542, one count of unlawful re-entry of a deported alien, 8 U.S.C. § 1326, and one count of aggravated identity theft, 18 U.S.C. § 1028A. The district court imposed a mandatory 24–month term of incarceration on the count of aggravated identity theft, consecutive to a 46–month prison term on the remaining counts, for an aggregate sentence of 70 months.

II. Analysis

Ozuna–Cabrera appeals both his conviction and sentence. First, he contends that his guilty plea to aggravated identity theft must be vacated because it violated Rule 11(b)'s requirements that it be knowing, voluntary, and amply supported by facts. See Fed.R.Crim.P. 11(b)(1)(G), (b)(2) and (b)(3). Specifically, he argues that because he purchased, rather than stole, Howard Bond's passport, he had lawful authority to use the misrepresented identity and was therefore not guilty of a § 1028A violation. Second, he challenges the district court's sentence calculation, asserting that it was unreasonably enhanced based on a nearly twenty-year-old conviction. We review each of these claims in turn.

A. Rule 11 Claims

Ozuna–Cabrera's Rule 11 arguments turn almost entirely on his construction of § 1028A. The aggravated identity theft statute provides, in relevant part:

Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

18 U.S.C. § 1028A(a)(1) (emphasis added). Ozuna–Cabrera concedes every element of the offense but one: that his use of Howard Bond's identification was “without lawful authority.” ¹ He argues that, because Bond willingly sold him the means of identification, its subsequent use in support of Ozuna–Cabrera's passport application was lawfully authorized. This claim presents an issue of first impression for us: whether, in the context of 18 U.S.C. § 1028A(a)(1), the phrase “without lawful authority” must be construed to require that the means of identification be stolen, or otherwise taken without permission of the owner. We reject such a narrow reading.

As a preliminary matter, because Ozuna–Cabrera failed to raise this claim below, we review it only for plain error.² Accordingly, Ozuna–Cabrera bears the heavy burden of showing that his interpretation of the phrase “without lawful authority” to require theft of the means of identification is “compelled by the language of the statute itself, construction of the statute in light of the common law, or binding judicial construction of the statute.” United States v. Caraballo–Rodriguez, 480 F.3d 62, 70 (1st Cir.2007). We begin by looking at the language of § 1028A.

Ozuna–Cabrera's reliance on the statutory text itself is unavailing. The phrase “without lawful authority,” he argues, definitionally equates to “without authorized permission.” We disagree. Though “authorized” activity may in many cases also be “lawful,” the terms are not interchangeable. Rather, Black's Law Dictionary defines “lawful” as “not contrary to law,” and “authority” as “[t]he right or permission to act legally on another's behalf.” Black's Law Dictionary 152 & 965 (9th ed.2009). Combining these definitions, § 1028A(a)(1) reasonably proscribes the transfer, possession, or use of another person's means of identification, absent the right or permission to act on that person's behalf in a way that is not contrary to the law. In other words, regardless of how the means of identification is actually obtained, if its subsequent use breaks the law—specifically, during and in relation to the commission of a crime enumerated in subsection (c)—it is violative of § 1028A(a)(1).

Ozuna–Cabrera's contextual argument also fails. As he points out, the aforementioned language of § 1028A(a)(1) is virtually identical to that of the general identity fraud statute, 18 U.S.C. § 1028, which provides:

Whoever ... knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person....

18 U.S.C. § 1028(a)(7) (emphasis added). Thus, Ozuna–Cabrera asserts that unless we construe the phrase “without lawful authority” to require theft under § 1028A(a)(1), the statute would cover the same conduct as § 1028(a)(7), and consequently be rendered superfluous. He further submits that this construction is supported by the statute's title, “Aggravated identity theft,” and its enhanced penalty provision, which he suggests is intended to punish the theft of an identity more harshly than merely putting it to fraudulent use.

This argument ignores the broader statutory framework. As a general rule of statutory construction, “identical words used in different parts of the same Act are intended to have the same meaning.” United States v. Upton, 559 F.3d 3, 11 (1st Cir.2009) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 570, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995)) (internal quotation mark omitted). This rule is strengthened where, as here, the relevant statutory provisions are in close proximity to each other. Comm'r v. Lundy, 516 U.S. 235, 250, 116 S.Ct. 647, 133 L.Ed.2d 611 (1996). If Congress had intended for the phrase “without lawful authority” to have substantially different meanings in § 1028A(a)(1) and § 1028(a)(7), “it would have manifested its intention in some concrete fashion.” Upton, 559 F.3d at 11 (quoting Finnegan v. Leu, 456 U.S. 431, 438 n. 9, 102 S.Ct. 1867, 72 L.Ed.2d 239 (1982)) (internal quotation mark omitted). There is no reason to diverge from this canon of construction here. Instead, to discern the interplay between these two statutes, we need only refer back to the statutory language.

The identity fraud statute, § 1028(a)(7), covers the commission, or aiding and abetting in the commission, of “any unlawful activity that constitutes a violation of Federal law, or ... a felony under any applicable State or local law.” By contrast, the aggravated identity theft statute, § 1028A(a)(1), covers “any felony violation enumerated in subsection (c)”—a discrete list of federal felonies. The statutes are therefore distinguishable not by the method of procuring the means of identification, but by the underlying criminal conduct that they respectively target. Section 1028A(a)(1) is a logical extension of § 1028(a)(7), and punishes more severely those identity crimes committed during and in relation to a specifically enumerated subset of problematic felonies.³ See, e.g., United States v. Godin, 534 F.3d 51, 62 (1st Cir.2008) (Lynch, C.J., concurring) (“[In enacting § 1028A,] Congress was responding to the drastic upsurge in what are called identity theft crimes and which encompass a variety of situations.”); United States v. Jimenez, 507 F.3d 13, 22 (1st Cir.2007) (“[T]he purpose of [ § 1028A] is to create an additional penalty for using false identities that are particularly difficult to expose or that are used in conjunction with terrorism offenses.”).

Legislative history supports this interpretation. Ozuna–Cabrera accurately notes that Congress added § 1028A to the United States Code through the “Identity Theft Penalty Enhancement Act,” Pub.L. No. 108–275, 118 Stat. 831 (2004). He is also correct that the House Report is replete with references to “theft” and “thieves,” and that one stated purpose of the statute is to increase sentences for “identity thieves.” H.R.Rep. No. 108–528, at 3, as reprinted in 2004 U.S.C.C.A.N. 779, 780. The report provides several examples of conduct that fit within the traditional definition of theft, like stealing credit-card and social security numbers, and stealing identities to file false tax returns or apply for social security benefits. Id. at 5–6, 2004 U.S.C.C.A.N. at 781–82.

Without question, Congress harbored concerns over criminals who actually steal other people's identities. There is nothing to suggest, however, that Congress intended to so narrowly restrict the statute's reach to identity crimes involving such traditional notions of theft. On the contrary, the same House Report stated that “[t]he terms ‘identity theft’ and ‘identity fraud’ refer to all types of crimes in which someone wrongfully obtains and uses another person's personal data....” H.R.Rep. No. 108–528, at 4, 2004 U.S.C.C.A.N. at 780. Indeed, the report describes several anecdotal examples of identity theft that do not involve stealing the means of identification. In one instance, a man used his brother-in-law's name and social security number to obtain social security benefits, and in a similar case, a woman used her husband's social security number to collect disability...