                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                            May 4, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellant,

v.                                                          No. 17-2135
                                                  (D.C. No. 1:16-CR-02682-JAP-1)
JEREMY LARA,                                                  (D.N.M.)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
                 _________________________________

      Jeremy Lara pleaded guilty to aggravated identify theft, bank fraud, possession

of a counterfeit postal key, and mail theft. The district court imposed a controlling

30-month prison sentence. The government appeals, arguing the district court

violated 18 U.S.C. § 1028A(b)(3) by considering Lara’s mandatory two-year

sentence for aggravated identify theft in determining the appropriate sentences for

Lara’s bank-fraud offenses. We agree: although the district court was free to consider

the two-year sentence in determining Lara’s sentences for possession of a counterfeit


      *
         This order and judgment isn’t binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. After examining the
briefs and appellate record, this panel has determined unanimously to honor the
parties’ request for a decision on the briefs without oral argument. See Fed. R. App.
P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument.
postal key and mail theft, the district court violated § 1028A(b)(3) by considering the

two-year sentence in determining Lara’s sentences for bank fraud. Accordingly, we

vacate Lara’s sentence and remand for resentencing.

                                     Background

      Lara pleaded guilty to three counts of bank fraud (counts 1–3), see id. § 1344;

three counts of aggravated identify theft (counts 4–6), see id. § 1028A; two counts of

possession of a counterfeit postal key (counts 7 and 9), see id. § 1704; and two counts

of mail theft (counts 8 and 10), see id. § 1708.

      In his sentencing memorandum, Lara asked the district court to impose a total

prison sentence of 24 months. More specifically, he asked the district court to impose

the mandatory two-year prison sentence for each of the three counts of aggravated

identify theft, see § 1028A(a)(1), and to “suspend the sentences” on the remaining

counts of conviction, R. vol. 1, 39. In support, Lara asserted that § 1028A(a)(1)’s

two-year sentence was “sufficient” and that “any further incarceration would be

greater than necessary to achieve the goals of sentencing.” R. vol. 1, 39.

      The government objected to Lara’s request. First, it pointed out that

§ 1028A—which prohibits “knowingly transfer[ring], possess[ing], or us[ing],

without lawful authority” another person’s “means of identification” “during and in

relation to” certain enumerated felonies, including bank fraud—requires a sentencing

court to impose a mandatory two-year sentence “in addition to the punishment

provided for” the underlying enumerated felony. § 1028A(a)(1) (emphasis added);

see also § 1028A(c)(5). Second, the government argued that § 1028A expressly

                                           2
prohibited the district court from “reduc[ing] the term to be imposed for” that

underlying enumerated felony “as to compensate for, or otherwise take into account,”

§ 1028A(a)(1)’s mandatory two-year sentence. § 1028A(b)(3). And according to the

government, this was precisely what Lara asked the district court to do when he

argued that the mandatory two-year sentence for aggravated identify theft “would be

‘sufficient,’ and that any further sentences would be ‘greater than necessary to

achieve the goals of sentencing.’” R. vol. 1, 41 (quoting id. at 39).

      At the sentencing hearing, Lara denied that he was asking the district court to

take § 1028A(a)(1)’s mandatory two-year sentence for aggravated identity theft into

account in determining the appropriate sentences for his other offenses. Instead, Lara

asserted, he was merely arguing that a 24-month sentence would be “fair, just[,] and

reasonable” under “the totality of the circumstances of his case.” R. vol. 3, 93.

      In response, the district court initially proposed a sentence of a year and a day

on counts 1–3 (bank fraud) and 7–10 (possession of a counterfeit postal key and mail

theft), but then changed course and determined that a six-month prison sentence on

“each of those counts” was “sufficient but not greater than necessary to satisfy the

requirements of” 18 U.S.C. § 3553(a).1 R. vol. 3, 97; see also § 3553(a) (requiring

court to consider whether sentence imposed, e.g., “afford[s] adequate deterrence” and


      1
         The parties appear to agree that the district court’s initial proposal was an
attempt to ensure Lara would receive credit for “good time,” thus “effectively
reducing [his] sentence.” Aplee. Br. 14; see also 18 U.S.C. § 3624(b)(1) (explaining
that prisoner serving sentence of “more than 1 year” can “receive credit toward the
service of the prisoner’s sentence” by “display[ing] exemplary compliance with
institutional disciplinary regulations”).
                                            3
“reflect[s] the seriousness of the offense”). The district court clarified that the six-

month sentences for each of counts 1–3 (bank fraud) and 7–10 (possession of a

counterfeit postal key and mail theft) would run concurrently to one another but

consecutively to the three concurrent mandatory two-year sentences the court

imposed on counts 4–6 (aggravated identify theft), for a total 30-month prison

sentence. The district court explained that it based its decision on (1) “the fact that

the offenses . . . did not involve weapons or violence”; (2) “the fact that” Lara would

“be required to spend an additional two years beyond the six months” in prison;

(3) the fact that Lara would also serve “a three-year term of supervised release”; and

(4) the district court’s conclusion that 30 months in prison plus three years of

supervised release would “provide adequate protection of the public and address the

seriousness of the offense and result in just punishment.” R. vol. 3, 97.

       The government “object[ed] to the court’s consideration” of the mandatory

two-year sentence that the court imposed on counts 4–6 (aggravated identify theft)

“in imposing [a] six-month sentence” for each of the remaining counts. Id. at 101–02.

The district court did not rule on the government’s objection. The government now

appeals.

                                         Analysis

       On appeal, the government argues that the district court violated

§ 1028A(b)(3) by taking into account § 1028A(a)(1)’s mandatory two-year prison

sentence in determining the appropriate sentences for Lara’s bank-fraud convictions.

Lara doesn’t dispute that the district court was precluded from considering

                                             4
§ 1028A(a)(1)’s mandatory two-year term in determining the appropriate sentences

for his bank-fraud convictions. But he argues the district court was free to take the

mandatory two-year term into consideration in determining the appropriate sentences

for his other convictions, i.e., possession of a counterfeit postal key and mail theft.

And according to Lara, that’s all the district court did here. The government

disagrees. It argues that even assuming the district court could consider

§ 1028A(a)(1)’s mandatory two-year term in crafting Lara’s sentences for possession

of a counterfeit postal key and mail theft, the district court also considered

§ 1028A(a)(1)’s mandatory two-year term in crafting Lara’s sentences for bank

fraud—and erred in doing so. For the reasons discussed below, we agree with the

government.

      At the outset, we have no trouble concluding that § 1028A(b)(3) prohibited the

district court from taking § 1028A(a)(1)’s mandatory two-year sentence for

aggravated identify theft into account in determining the appropriate sentences for

Lara’s bank-fraud convictions. In relevant part, § 1028A states:

      (a) Offenses.--

              (1) In general.--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.

      ....

      (b) Consecutive sentence.--Notwithstanding any other provision of
      law--

                                            5
      ...

             (2) . . . no term of imprisonment imposed on a person under this
             section shall run concurrently with any other term of
             imprisonment imposed on the person under any other provision of
             law, including any term of imprisonment imposed for the felony
             during which the means of identification was transferred,
             possessed, or used;

             (3) in determining any term of imprisonment to be imposed for
             the felony during which the means of identification was
             transferred, possessed, or used, a court shall not in any way
             reduce the term to be imposed for such crime so as to compensate
             for, or otherwise take into account, any separate term of
             imprisonment imposed or to be imposed for a violation of this
             section . . . .

§ 1028A(a)–(b). Finally, § 1028A lists bank fraud as a “felony violation enumerated

in subsection (c).” § 1028A(c)(5) (quoting § 1028A(a)(1)).

      Thus, in relevant part, the statute (1) prohibits “knowingly transfer[ring],

possess[ing], or us[ing], without lawful authority” another person’s “means of

identification” “during and in relation to” the predicate felonies listed in

§ 1028A(c)—including bank fraud, see § 1028A(c)(5)—and then (2) clearly and

unequivocally states that “in determining any term of imprisonment to be imposed for

[bank fraud], a court shall not in any way reduce the term to be imposed for [bank

fraud] so as to compensate for, or otherwise take into account” § 1028A(a)(1)’s two-

year sentence for aggravated identify theft, § 1028A(b)(3). Accordingly, under the

plain language of § 1028A, the district court was precluded from considering

§ 1028A(a)(1)’s mandatory two-year sentence for aggravated identify theft in

crafting Lara’s sentences for bank fraud. See St. Charles Inv. Co. v. Comm’r, 232

                                            6
F.3d 773, 776 (10th Cir. 2000) (“As in all cases requiring statutory construction, ‘we

begin with the plain language of the law.’” (quoting United States v. Morgan, 922

F.2d 1495, 1496 (10th Cir. 1991))).

      In fact, § 1028A(b)(3)’s plain language is so clear on this point that both the

Supreme Court and this court have cited that language as an example of Congress’

ability to unambiguously preclude district courts from considering a defendant’s

sentence for one conviction when imposing a sentence on another conviction. See

Dean v. United States, 137 S. Ct. 1170, 1174, 1177–78 (2017) (analyzing 18 U.S.C.

§ 924(c), which makes it “a separate offense to use or possess a firearm in connection

with a violent or drug trafficking crime”; rejecting government’s argument that

district court couldn’t consider § 924(c)’s mandatory-minimum sentence in

calculating appropriate sentence for predicate offense; and citing § 1028A(b)(3) as

proof that Congress knows how to explicitly prohibit such consideration when it

chooses to); United States v. Smith, 756 F.3d 1179, 1185–87 (10th Cir. 2014) (same).

      Indeed, we indicated in Smith that § 1028A(b)(3)’s plain language “does”

precisely “what it says”: it “prevent[s] a sentencing court from taking account of

§ 1028A[(a)(1)]’s mandatory minimum[] when considering a sentence for predicate

offenses” such as bank fraud. 756 F.3d at 1186 n.2. And we noted in Smith that our

sister circuits have reached the same conclusion. See id.; United States v. Wahid, 614

F.3d 1009, 1014 (9th Cir. 2010) (“The statutory language is clear”: “a district court

may not reduce the sentence of a predicate felony to compensate for the mandatory

two-year consecutive term . . . .”); United States v. Vidal-Reyes, 562 F.3d 43, 50 (1st

                                           7
Cir. 2009) (stating that § 1028A(b)(3) “clearly prohibits a sentencing court from

taking into consideration § 1028A(a)(1)’s mandatory two-year term for aggravated

identity theft to reduce the sentence that it would otherwise impose when sentencing

a defendant for predicate offenses underlying the aggravated identity theft

conviction”); United States v. Guillen-Esquivel, 534 F.3d 817, 819 (8th Cir. 2008)

(“Section 1028A(b)(3) prohibited the district court from ‘in any way reduc[ing] the

term to be imposed for [document trafficking] so as to compensate for, or otherwise

take into account, any separate term of imprisonment imposed or to be imposed for

[aggravated identify theft].’” (alterations in original) (quoting § 1028A(b)(3))). Thus,

we hold that § 1028A(b)(3) prohibited the district court from considering

§ 1028A(a)(1)’s two-year sentence for aggravated identify theft in crafting Lara’s

sentences for bank fraud.

       But this conclusion doesn’t necessarily entitle the government to reversal. So

far, the government has proved its major premise. That is, the government has

established that if the district court took into account § 1028A(a)(1)’s mandatory two-

year term in determining the appropriate sentences for Lara’s bank-fraud convictions,

then the district court erred. Yet to prevail on appeal, the government must also prove

its minor premise: it must establish that the district court did, in fact, consider

§ 1028A(a)(1)’s mandatory two-year term in determining the appropriate sentences

for Lara’s bank-fraud convictions. And according to Lara, the government can’t make

that showing.



                                             8
       Lara doesn’t dispute that the district court considered § 1028A(a)(1)’s

mandatory two-year term in crafting the rest of his sentence. Nor could Lara credibly

do so; in calculating that sentence, the district court explicitly relied on the

“additional two years” Lara will spend in prison under § 1028A(a)(1). R. vol. 3, 97.

Instead, Lara advances a more specific argument: he insists that although the district

court couldn’t take the mandatory two-year sentence into account in determining the

appropriate sentence for Lara’s bank-fraud convictions, the district court remained

free to take that two-year sentence into account for purposes of determining the

appropriate sentences for Lara’s other crimes—i.e., possession of a counterfeit postal

key and mail theft.

       In support, Lara first notes that these other offenses aren’t enumerated felonies

under § 1028A(c). Second, he points out that (1) § 1028A prohibits “knowingly

transfer[ring], possesses[ing], or use[ing], without lawful authority” another person’s

“means of identification” “during and in relation to any felony violation enumerated

in [§ 1028A(c)]”; and (2) § 1028A only prohibits consideration of § 1028A(a)(1)’s

two-year term “in determining any term of imprisonment to be imposed for the

felony during which the means of identification was transferred, possessed, or used.”

§ 1028A(a)(1), (b)(3) (emphasis added). Thus, he concludes, the plain language of

the statute indicates that § 1028A(b)(3)’s prohibition on considering § 1028A(a)(1)’s

two-year sentence extends only to § 1028A(c)’s enumerated felonies.

       Moreover, Lara asserts, this conclusion finds further support in the distinction

between the language of § 1028A(b)(3) and the language of § 1028A(b)(2). Section

                                             9
1028A(b)(3) prohibits consideration of § 1028A(a)(1)’s two-year term “in

determining any term of imprisonment to be imposed for the felony during which the

means of identification was transferred, possessed, or used.” Section 1028A(b)(2), on

the other hand, states that “no term of imprisonment imposed on a person under

[§ 1028A(a)(1)] shall run concurrently with any other term of imprisonment imposed

on the person under any other provision of law, including any term of imprisonment

imposed for the felony during which the means of identification was transferred,

possessed, or used.” § 1028A(b)(2) (emphasis added).

      As Lara points out, “[t]he conspicuous inclusion of the ‘any other provision of

law’ language in § 1028A(b)(2), coupled with its omission in § 1028A(b)(3)”

illustrates “that if Congress had intended to extend § 1028A(b)(3)’s restriction on

district courts’ sentencing discretion to sentencing for offenses under ‘any other

provision of law,’ rather than for predicate felonies only, it would have explicitly

said so.” Vidal-Reyes, 562 F.3d at 53; see also Wahid, 614 F.3d at 1014 (relying on

distinction between § 1028A(b)(2) and § 1028A(b)(3) to conclude that although “a

district court may not reduce the sentence of a predicate felony to compensate for the

mandatory two-year consecutive term, it may exercise its discretion to reduce a

sentence for a non-predicate felony”); Vidal-Reyes, 562 F.3d at 56 (“We thus

conclude that a district court, in sentencing a defendant on a[n] . . . aggravated

identity theft conviction, is not precluded from taking § 1028A’s mandatory sentence

into account in sentencing a defendant on other counts of conviction charged in the

same indictment that are not predicate felonies underlying the § 1028A conviction.”).

                                           10
Thus, based on the plain language of the statute and the line of reasoning our sister

circuits employed in Vidal-Reyes and Wahid, we agree with Lara that the district

court remained free to consider § 1028A(a)(1)’s mandatory two-year term in crafting

his sentences for possession of a counterfeit postal key and mail theft because those

offenses are not enumerated felonies under § 1028A(c).

       But our conclusion that the district court could consider § 1028A(a)(1)’s

mandatory two-year term in crafting Lara’s sentences for possession of a counterfeit

postal key and mail theft is—just like our conclusion that the district court couldn’t

consider § 1028A(a)(1)’s mandatory two-year term in determining Lara’s sentence

for bank fraud—merely an intermediate one. To resolve this appeal, we must answer

the question that arises where these two intermediate conclusions intersect: Did the

district court merely consider § 1028A(a)(1)’s mandatory two-year term in crafting

Lara’s sentences for possession of a counterfeit postal key and mail theft, or did it

also take § 1028A(a)(1)’s mandatory two-year term into account in crafting his

sentence for bank fraud?

       We conclude it did the latter. In sentencing Lara on “[c]ounts 1 through 3 and

[c]ounts 7 through 10,” the district court concluded that for “each of those counts,” a

six-month sentence was appropriate.2 R. vol. 3, 97 (emphasis added). And it then

explained that it “base[d]” this conclusion, in part, “on . . . the fact that [Lara] will be

required to spend an additional two years” in prison under § 1028A(a)(1). Id.


       2
        Recall that counts 1–3 of the indictment charged Lara with bank fraud, while
counts 7–10 charged him with possession of a counterfeit postal key and mail theft.
                                            11
      Lara argues that the district court’s statement was “ambiguous” and that we

should therefore interpret the statement in a manner that is “consistent with” both the

law and our presumption that the district court was aware of and properly applied it.

Aplee. Br. 24 (quoting United States v. Cataldo, 171 F.3d 1316, 1319 n.6 (11th Cir.

1999)); see also United States v. Russell, 109 F.3d 1503, 1512–13 (10th Cir. 1997)

(“The Supreme Court has held that ‘[t]rial judges are presumed to know the law and

to apply it in making their decisions.’” (alteration in original) (quoting Walton v.

Arizona, 497 U.S. 639, 653 (1990), overruled on other grounds by Ring v. Arizona,

536 U.S. 584 (2002))).

      We cannot agree. The district court explicitly stated that it took

§ 1028A(a)(1)’s mandatory two-year prison sentence for aggravated identity theft

into account in determining the appropriate sentence for Lara’s other convictions. It

sentenced Lara to concurrent six-month sentences for “each” of these other

convictions. R. vol. 3, 97 (emphasis added). And then—without differentiating

between Lara’s convictions for bank fraud and his convictions for possession of a

counterfeit postal key and mail theft—it explained that “the fact that [Lara] will be

required to spend an additional two years beyond the six months as to those seven

counts” informed its decision to sentence Lara to six months in prison for those

counts. Id. (emphasis added). These statements necessarily and unambiguously

encompassed Lara’s convictions for bank fraud. Cf. Cataldo, 171 F.3d at 1319 n.6

(explaining that district courts’ “ambiguous oral statements, if possible, are



                                           12
interpreted to be consistent with (and not inconsistent with) the law” (emphasis

added)).

      Moreover, the district court had every opportunity to clarify that its

consideration of § 1028A(a)(1)’s mandatory two-year sentence was confined solely

to Lara’s sentences for possession of a counterfeit postal key and mail theft.3 But the

district court didn’t avail itself of that opportunity. Accordingly, we accept its

unambiguous statements at face value and conclude that the district court indeed

considered § 1028A(a)(1)’s mandatory two-year sentence in determining the

appropriate sentences for “each” of Lara’s other crimes—including bank fraud. R.

vol. 3, 97. Because the district court erred in doing so, we vacate Lara’s sentence and

remand for resentencing.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




      3
         After the district court pronounced Lara’s sentence, the government objected
to the district court’s “consideration of [the] 24-month sentence,” which, the
government pointed out, the court “explicitly [considered] in imposing the six-month
sentence[s].” R. vol. 3, 102.
                                           13
