     Case: 15-20409     Document: 00513691960      Page: 1    Date Filed: 09/26/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                   No. 15-20409                             FILED
                                                                    September 26, 2016
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

                                             Plaintiff - Appellee
v.

IVAN SUCHOWOLSKI,

                                             Defendant - Appellant




                 Appeal from the United States District Court
                      for the Southern District of Texas


Before JOLLY, BARKSDALE, and SOUTHWICK, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
      After almost a quarter-century’s unlawful receipt of social-security
benefits in the guise of a person who died in 1990, Ivan Suchowolski pleaded
guilty to theft of government property, in violation of 18 U.S.C. § 641, and was
sentenced, inter alia, to 18 months’ imprisonment. At issue is whether, in
calculating the offense level for use in computing the advisory Sentencing
Guidelines    range,    the   district   court   erred   in   applying         Guideline
§ 2B1.1(b)(11)(C)(i):   a two-level enhancement for using an unauthorized
means of identification to obtain another means of identification. AFFIRMED.
       Case: 15-20409   Document: 00513691960    Page: 2   Date Filed: 09/26/2016



                                  No. 15-20409
                                       I.
        In the 1980s, Ruth Stolzenback, a former caregiver to defendant’s
mother, gave him permission to assist with Stolzenback’s financial affairs
while she was in a nursing home. To this end, Suchowolski was authorized to
access a joint bank account with Stolzenback to pay her bills. During this time,
Stolzenback received Social Security Administration (SSA) retirement
benefits; Suchowolski provided his address on her SSA account to receive paper
checks and deposit them in the joint account.
        Stolzenback died in 1990. Suchowolski claims he attempted to notify the
SSA of her death; nonetheless, he continued to receive checks from the SSA
payable to Stolzenback and deposit them in the joint account for his personal
use.
        In 2008, the SSA began requiring direct deposit of benefits payments,
ending the practice of mailing paper checks. As a result, and in order to
continue receiving the payments, Suchowolski forged Stolzenback’s name on a
signature card and used her social-security number to open a joint checking
account at a credit union under his and Stolzenback’s names.           The SSA
payments were directly deposited into this account from 2008 to 2011, when
the credit union closed. Therefore, again forging Stolzenback’s name on a
signature card and using her social-security number, Suchowolski opened a
joint checking account at a bank to continue receiving the payments.
        Suchowolski continued to receive SSA payments unlawfully until 2014,
when they were terminated, following the SSA’s investigating Stolzenback’s
SSA account through a review program for individuals who had not used
Medicare benefits for three years.          In doing so, the SSA discovered
Stolzenback’s death certificate and confronted Suchowolski. After pleading
guilty, he was convicted in 2015.
                                       2
    Case: 15-20409     Document: 00513691960       Page: 3   Date Filed: 09/26/2016



                                   No. 15-20409
      Suchowolski received $220,662 in SSA benefits after Stolzenback’s
death. The SSA recovered $34,000 from the bank account, resulting in a loss
of $186,662. The presentence investigation report (PSR) recommended, inter
alia, the two-level enhancement at issue: use of an unauthorized means of
identification to obtain another means of identification. As the PSR explained,
Suchowolski used Stolzenback’s name and social-security number to create
additional means of identification, through the credit union and bank accounts.
The court applied the two-level enhancement over objections by both
Suchowolski and the Government.
                                         II.
      Suchowolski continues to challenge the enhancement. On the other
hand, and despite its objections in district court, the Government urges the
enhancement was proper.
      Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness under
an abuse-of-discretion standard, the district court must still properly calculate the
advisory Guidelines-sentencing range for use in deciding on the sentence to
impose. Gall v. United States, 552 U.S. 38, 48–51 (2007). In that respect, for
issues preserved in district court, its application of the Guidelines is reviewed de
novo; its factual findings, only for clear error. E.g., United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). But, issues not raised in district
court are reviewed only for plain error. E.g., United States v. Broussard, 669 F.3d
537, 546 (5th Cir. 2012).
      Resolution of this appeal rests on interpreting Guideline § 2B1.1. “[T]he
plain language of the [G]uideline controls when it (1) is not ambiguous and (2)
produces a result that is not absurd”. United States v. Baker, 742 F.3d 618,
622 (5th Cir. 2014). The Guideline at issue imposes the two-level enhancement

                                         3
    Case: 15-20409     Document: 00513691960      Page: 4   Date Filed: 09/26/2016



                                  No. 15-20409
for “the unauthorized transfer or use of any means of identification unlawfully
to produce or obtain any other means of identification”.                 U.S.S.G.
§ 2B1.1(b)(11)(C)(i). In that regard, the commentary provides:
             “Means of identification” has the meaning given that
             term in 18 U.S.C. § 1028(d)(7), except that such means
             of identification shall be of an actual (i.e., not
             fictitious) individual, other than the defendant or a
             person for whose conduct the defendant is accountable
             under § 1B1.3….

U.S.S.G. § 2B1.1 cmt. n.1. The language in the commentary is the main focus
of the parties’ dispute.
                                        A.
      For contending the court applied the Guideline improperly, Suchowolski
presents five issues: (1) the 2008 and 2011 accounts were not “unauthorized”; (2)
a “means of identification” does not include signature cards or checking accounts;
(3) an “actual individual” must be alive; (4) the enhancement was intended only
for fraudulently-obtained loans; and (5) the rule of lenity precludes the
enhancement. In response, the Government, inter alia, insists he presented only
the first and fourth issues in district court, and that, accordingly, plain-error
review governs the other three.
      It is well-established that our court, not the parties, determines the
appropriate standard of review. E.g., United States v. Vontsteen, 950 F.2d 1086,
1091 (5th Cir. 1992) (en banc). As Suchowolski concedes, he did not preserve the
rule-of-lenity issue in district court; he did preserve the issues for whether: the
2008 and 2011 accounts were not “unauthorized”; and the enhancement was
intended for different forms of identity theft. The standard of review for the two
remaining issues need not be determined because, assuming arguendo they were
preserved, his claims still fail. See United States v. Kay, 513 F.3d 432, 452 n.86
(5th Cir. 2007).
                                        4
    Case: 15-20409    Document: 00513691960      Page: 5   Date Filed: 09/26/2016



                                  No. 15-20409
                                       B.
                                       1.
      Suchowolski concedes opening the 2008 and 2011 accounts was unlawful,
but notes “unauthorized use” is an additional element for the enhancement.
According to him, Stolzenback’s authorization, prior to her death in 1990, for
him to access their joint bank account places his conduct outside the scope of
the enhancement. The Government responds that any authorization given
prior to Stolzenback’s death could not extend to using her name and social-
security number to create joint accounts in 2008 and 2011. Further, it asserts
a person cannot authorize engaging in illegal conduct.
      At oral argument here, Suchowolski suggested it was “presumed” he was
authorized to use the original joint bank account with Stolzenback, but
conceded he could not find — nor can we — anything in the record affirmatively
demonstrating that, during her lifetime, she gave him authorization to create
a joint bank account with her. Both common sense and the record make clear
Suchowolski created the fraudulent accounts in 2008 and 2011 without
Stolzenback’s authorization: for starters, she had been dead nearly 20 years
before he opened the first one.
                                       2.
      Suchowolski claims his conduct did not fit the language of the Guideline
because the signature cards on which he forged Stolzenback’s name, as well as
the two resulting accounts, are not included in the non-exhaustive list of items
in 18 U.S.C. §1028(d)(7) covered by the definition of “means of identification”.
The Government responds:          the cards are irrelevant; and the use of




                                       5
    Case: 15-20409     Document: 00513691960      Page: 6   Date Filed: 09/26/2016



                                  No. 15-20409
Stolzenback’s name and social-security number to generate fraudulent account
routing numbers was sufficient to qualify under the definition.
      As Suchowolski notes, the non-exhaustive list in the statute does not
include signature cards or bank accounts. But, it includes names, social-
security numbers, and routing codes as “means of identification”.              See
§1028(d)(7)(A) and (C).     Suchowolski’s conduct fell within the ambit of
Guideline §§ 2B1.1(b)(11)(C)(i) and 2B1.1 cmt. n.1.
                                        3.
      To claim the enhancement does not apply because Stolzenback, after her
death, was not covered under the term “actual individual”, Suchowolski relies
on various dictionary definitions, in order to assert a person must be alive to
be an “actual individual” for purposes of the Guideline. The Government
counters that the plain meaning of “actual individual” must be understood in
the light of the commentary’s limitation in the modifying parenthetical
immediately following “actual”: “i.e., not fictitious”.
      As the eleventh circuit ruled in United States v. Philidor, “[b]ecause ‘i.e.’
is an abbreviation for ‘that is,’ the plain meaning of the language used by
Congress was that [‘not fictitious’] was the exclusive definition for ‘actual’”.
717 F.3d 883, 886 (11th Cir. 2013). “Accordingly, the plain meaning of the
phrase ‘actual’ does not distinguish between living and deceased persons.” Id.
                                        4.
      In maintaining the enhancement does not apply because it was meant
only for when “an individual’s identity is used to extend credit or obtain a loan”,
Suchowolski points to the two examples provided in § 2B1.1 cmt. n.10(C)(ii):
obtaining a loan with identification information from stolen mail; and
obtaining a credit card with identification information from a stolen driver’s
license. His actions, according to him, were “more akin to forging a signature
                                        6
    Case: 15-20409     Document: 00513691960     Page: 7    Date Filed: 09/26/2016



                                  No. 15-20409
to cash a stolen check . . . [which] is specifically articulated as conduct that
does not warrant the enhancement”. (Emphasis in original.)
      As the Government demonstrates, however, our court has affirmed
application of the Guideline outside the context of credit fraud, and applied the
enhancement under circumstances factually analogous to those at hand. See
United States v. Davis, 324 F. App’x 395, 395 (5th Cir. 2009) (unpublished);
United States v. Geeslin, 236 F. App’x 885, 886 (5th Cir. 2007) (unpublished).
                                        5.
      Finally, Suchowolski maintains the rule of lenity precludes the
enhancement’s application. But, as noted, he concedes he did not rely on this
rule in district court. As also noted, issues raised for the first time on appeal
are reviewed only for plain error. E.g., Broussard, 669 F.3d at 546. Under that
standard, defendant must show a forfeited plain (clear or obvious) error that
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he does so, we have the discretion to correct the error, but should do
so only if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings”. Id.
      “[T]he rule of lenity only applies if, after considering the text, structure,
history, and purpose, there remains a grievous ambiguity or uncertainty in the
statute, such that the [c]ourt must simply guess as to what Congress intended”.
United States v. Castleman, 134 S. Ct. 1405, 1416 (2014). A novel fact pattern
alone does not invoke the rule of lenity. United States v. Shabani, 513 U.S. 10,
17 (1994).   Although other courts interpreting §2B1.1 have found it to be
“awkwardly written”, United States v. Hawes, 523 F.3d 245, 249 (3d Cir. 2008);
United States v. Melendrez, 389 F.3d 829, 832 (9th Cir. 2004), they have
applied the enhancement, Hawes, 523 F.3d at 249; Melendrez, 389 F.3d at 832.
Further, the above discussion demonstrates the enhancement does apply in
                                        7
    Case: 15-20409    Document: 00513691960   Page: 8   Date Filed: 09/26/2016



                               No. 15-20409
this factual context. In any event, Suchowolski has not shown the requisite
clear or obvious error.
                                    III.
      For the foregoing reasons, the judgment is AFFIRMED.




                                     8
