                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

           IN THE UNITED STATES COURT OF APPEALS I L E D
                                               F
                    FOR THE FIFTH CIRCUIT     October 7, 2008

                                                                             Charles R. Fulbruge III
                                                                                     Clerk
                                     No. 08-10127
                                   Summary Calendar




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

BARBARA ANN DAVIS,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                               No. 3:07-CR-90-ALL




Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Barbara Davis appeals the fourteen-month sentence she received following
her guilty-plea conviction for violations of 20 U.S.C. § 1097(a) and 18 U.S.C.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                    No. 08-10127

§ 1029(a)(2). For the first time on appeal, she challenges the enhancement un-
der U.S.S.G. § 2B1.1(b)(10)(C)(i) for the unauthorized use of her niece’s identify-
ing information to produce or obtain other means of identification, to-wit: a debit
card containing $10,000 of financial aid, which she used for her own personal ex-
penses. The enhancement is reviewed for plain error only. United States v.
Vasquez, 216 F.3d 456, 459 (5th Cir. 2000).
      Davis contends that the subsection does not apply to her, because the use
of her niece’s identification was not unauthorized within the meaning of the
guideline, for the reason that the niece consented to her assisting in applying for
financial aid and, in so doing, either explicitly or implicitly gave her authoriza-
tion to obtain a debit card for that purpose. Davis alternatively argues that, ev-
en if the niece did not authorize her to create the debit card, the enhancement
is inappropriate, because the niece authorized her to use the identifying informa-
tion for some purpose (to obtain financial aid); Davis reasons that the enhance-
ment applies only where the defendant has no right to use the identifying infor-
mation at all.
      The record demonstrates that the victim did not consent, explicitly or im-
plicitly, to the acquisition of the debit card and did not otherwise give Davis
blanket authorization to use identifying information beyond completing her Free
Application for Financial Student Aid. Rather, the victim told agents she was
never advised that she had been approved for financial aid, never completed or
authorized the completion of the required Promissory Note and Verification
Form, and specifically did not authorize Davis to obtain a debit card on her be-
half. Because Davis unauthorizedly used the victim’s identifying information to
obtain the card, the enhancement applies on its face. See § 2B1.1(b)(10)(C)(i)
and comment. (n.9(C)(i), (ii)(I), (II)).
      Davis provides no support for the argument that the enhancement can
never apply if the victim consents to some authorized use of identifying informa-
tion. The argument is controverted by the plain text of the subsection, which re-

                                           2
                                 No. 08-10127

quires “the unauthorized transfer or use of any means of identification unlawful-
ly to produce or obtain other means of identification.” See § 2B1.1(b)(10)(C)(i).
There is no requirement that the victim’s information be obtained unlawfully,
as Davis suggests. See id.
      Davis has not demonstrated any plain error, see United States v. Olano,
507 U.S. 725, 734 (1993), so the judgment is AFFIRMED.




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