                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-5132


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MENELIK ZELEKE, a/k/a Minilik Zeleke, a/k/a Elijah Ayele,
a/k/a Minilik Nix, a/k/a Sheth M. Zeleke, a/k/a Melvin Paul
Haywood, a/k/a Jimmy Spellman, a/k/a Melvin Paul Nix,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  T. S. Ellis, III, Senior
District Judge. (1:11-cr-00248-TSE-1)


Submitted:   July 31, 2012                   Decided:    August 8, 2012


Before MOTZ and    KING,     Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


John   S.  Davis,   V,  WILLIAMS   MULLEN, Richmond, Virginia;
Garrick A. Sevilla, WILLIAMS MULLEN, Raleigh, North Carolina,
for Appellant.     Neil H. MacBride, United States Attorney,
Brian D. Harrison, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Menelik Zeleke was convicted by a jury of using his

infant son’s social security number to obtain an apartment lease

(Count   One),    using     his    three-year-old                 son’s    social     security

number to conduct a banking transaction (Count Two), and using a

social security number that had been issued to him under an

alias to obtain a second, fraudulent passport (Count Three).

Zeleke     was    sentenced       to        a       term     of     twenty-four        months’

imprisonment.         He   appeals      his         sentence,       contending      that   the

district    court     erred   in     imposing          a     6-level       enhancement     for

identity     breeding      under       U.S.         Sentencing           Guidelines     Manual
                                        1
§ 2B1.1(b)(11)(C)(i) (2011).                    We affirm.

            In the presentence report, with respect to Count One,

the probation officer recommended a 6-level increase under USSG

§ 2B1.1(b)(11)(C)(i),         which     applies            when    the    offense     involved

“the unauthorized transfer or use of any means of identification

unlawfully       to    produce         or        obtain       any        other     means   of

identification[.]” 2           Zeleke           objected          to      the    enhancement,


     1
       Citations are to the 2011 Guidelines Manual, which was in
effect at Zeleke’s sentencing on November 18, 2011.
     2
        The background commentary to § 2B1.1 states that
“[s]ubsection  (b)(11)(C)   . . .  focuses  principally   on  an
aggravated form of identity theft known as ‘affirmative identity
theft’ or ‘breeding’, in which a defendant uses another
individual’s name, social security number, or some other form of
identification (the ‘means of identification’) to ‘breed’ (i.e.,
(Continued)
                                                2
asserting    that    the    rental   account         he   opened   with       his   son’s

social    security    number     should       not    be   considered      a    means   of

identification.       Zeleke argued in his sentencing memorandum that

his conduct did not qualify for the enhancement because he did

not use the rental application as a means of identification or

to create any other means of identification, but only to obtain

the immediate benefit of renting an apartment.                          The government

responded that the enhancement was correctly applied, relying on

United States v. Allen, 491 F.3d 178 (4th Cir. 2007).

            In   Allen,     we   stated       that    the   enhancement        “applies

where a defendant, without authorization, uses an individual’s

name and social security number or address to obtain a bank loan

or credit card.”           Id. at 193.         We further noted, citing with

approval United States v. Samet, 200 F. App'x 15, 23 (2d Cir.

2006), that “[t]he subsection has also been held to apply where

a   defendant,       without     authorization,           uses     an     individual’s

information to obtain a lease or open a bank account.”                         491 F.3d

at 193.     Thus, we held that the enhancement applied in a case

where the defendant knowingly processed a lease ostensibly for




produce or obtain) new or additional forms of identification.”
Application Note 1 to § 2B1.1 explains that the term “means of
identification” is defined in 18 U.S.C. § 1028(d)(7), except
that the means of identification for purposes of the Guidelines
provision must be that of a real, not fictional, person.



                                          3
computer   equipment         using          an       individual’s        name   and       social

security number without authorization.                     Id. at 194.

           In Samet, two defendants “used names, dates of birth,

and   social    security         numbers         of    other   individuals       to       obtain

leases.”       200   F.    App’x       at    23.        Addressing        whether     a    lease

constitutes     a    “means       of    identification”             as    defined     in        the

Guidelines, Samet held that it does, for the following reasons:

      The   Application    Notes   . . .    define   “means   of
      identification”    by     reference    to    [18    U.S.C.
      § 1028(d)(7)], which in turn defines the term as “any
      name or number that may be used, alone or in
      conjunction with any other information, to identify a
      specific individual.” Id. (emphasis added). The Note
      then describes the use of names and social security
      numbers to obtain a bank loan or a credit card as
      conduct   to   which    the   Guideline    should   apply,
      explaining that the bank loan account number or credit
      card number is the “means of identification.”         Both
      the statute and the Note focus on the generation of a
      unique identifying number different than any number
      used to obtain it, not on whether a document would be
      proffered as a form of identification, as [defendants]
      contend. Like the account number of a bank loan, the
      account number of the leases thus constitute “means of
      identification,”   and    because   they   were   obtained
      unlawfully, [defendants’] base offense levels were
      appropriately enhanced.

200 F. App’x at 23.

           At    Zeleke’s         sentencing           hearing,     the    district        court

overruled his objection to the enhancement, finding that “the

[Samet] and Allen courts both conclude that . . . the focus [of]

the enhancement is on the generation of a unique identifying

number   different        from    any       number      used   to   obtain      it,       not    on


                                                 4
whether    a      document        would   be     proffered       as      a     form     of

identification, which was the thrust of [Zeleke’s] argument.”

The district court adopted the Guidelines calculation in the

presentence report and imposed a sentence of twenty-four months

imprisonment.

               Zeleke argues that the district court misinterpreted

the Guideline when it concluded that a means of identification

need not be used to prove a person’s identity, and that the

broader    interpretation         in   Samet,   cited    approvingly          in    Allen,

would    lead    to   absurd      results.      However,       Zeleke    provides       no

authority which is on point and contrary to either Allen or

Samet.     Moreover, the background commentary to § 2B1.1 states

that     “18     U.S.C.      § 1028(d)         broadly     defines           ‘means     of

identification[.]’”          Because Allen and Samet provided a reasoned

basis for the district court’s application of the enhancement in

§ 2B1.1(b)(11)(C)(i)         in    Zeleke’s     case,    we    conclude        that    the

district court did not err in making the enhancement.                              We need

not address the alternative grounds for affirmance put forward

by the government and contested by Zeleke.

               We therefore affirm the district court’s judgment.                       We

dispense       with   oral     argument      because     the     facts       and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                                AFFIRMED

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