                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 17 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-10247

              Plaintiff - Appellee,              D.C. No. 3:07-cr-00057-LRH-
                                                 VPC-1
  v.

CYRIL EGU,                                       MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                       Argued and submitted May 12, 2010
                           San Francisco, California

Before: SILVERMAN, FISHER and M. SMITH, Circuit Judges.

       Defendant Cyril Egu appeals both his conviction and sentence on two counts

of aggravated identity theft, in violation of 18 U.S.C. § 1028A, and two counts of

access device fraud, in violation of 18 U.S.C. § 1029. The district court sentenced

Defendant to 72 months in prison: concurrent 24-month terms for both § 1029



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                         -2-
convictions, plus two consecutive 24-month terms for each § 1028A conviction.

We have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. For

the following reasons, we affirm.

      First, the district court did not abuse its discretion under Federal Rule of

Evidence 404(b) by admitting into evidence a Nigerian passport bearing

Defendant’s photograph and the name “John Lawrence Egumasi.” The passport

was highly relevant “as proof . . . of identity.” See Fed. R. Evid. 404(b). The

perpetrator of the offenses charged in the indictment used the alias “John

Lawrence,” and authorities found the passport among other evidence of the

charged offenses. Beyond arguing the passport’s irrelevance, Defendant has failed

to show how the passport’s admission was unduly prejudicial. See United States v.

Banks, 514 F.3d 959, 976–77 (9th Cir. 2008). This is especially so in light of the

district court’s contemporaneous limiting instruction. See United States v. Hollis,

490 F.3d 1149, 1153 (9th Cir. 2007).

      Second, the district court did not abuse its discretion by applying a two-level

sophisticated means enhancement, per U.S.S.G. § 2B1.1(b)(9)(C). In finding

sophisticated means, the district court considered that Defendant had fraudulently

opened new credit accounts using the victims’ personal identifiers; worked in

concert with his wife to get those identifiers through her business; had
                                         -3-
fraudulently-purchased goods delivered to upscale, vacant homes in order to avoid

detection; and made bursts of purchases on new credit accounts before creditors

shut the accounts down. The district court properly considered these facts, which

support a finding that Defendant’s offense conduct was “especially complex or

especially intricate.” U.S.S.G. § 2B1.1, cmt. n.8(B); see also United States v.

Aragbaye, 234 F.3d 1101, 1108 (9th Cir. 2000) (reading a similar enhancement in

U.S.S.G. § 2T1.4(b)(2) as requiring the offense to be “‘sufficiently more complex’

than routine [offenses]” (quoting United States v. Ford, 989 F.2d 347, 351 (9th Cir.

1993))).

      Defendant nevertheless argues that the district court improperly considered

the number of victims, which is covered by U.S.S.G. § 2B1.1(b)(2)(A), and the

value of his extensive purchases, which is covered by U.S.S.G. § 2B1.1(b)(1)(E).

However, the district court properly considered the number of victims—that is, the

number of fraudulent accounts opened—because the use of multiple victims to

obtain multiple cards was a sign of sophistication. The court did not engage in

impermissible double counting because § 2B1.1(b) and the sophisticated means

enhancement serve distinct purposes under the Guidelines. See United States v.

Holt, 510 F.3d 1007, 1011 (9th Cir. 2007) (“[D]ouble counting is . . . authorized

and intended by the Sentencing Guidelines when each invocation of the behavior
                                         -4-
serves a unique purpose under the Guidelines.” (internal quotation marks

omitted)). Moreover, Defendant mischaracterizes the district court’s analysis of

his purchases: the court below considered the manner in which Defendant made his

purchases, not the value of those purchases.

      Defendant also unpersuasively challenges the district court’s focus on his

use of the victims’ personal identifiers, relying on U.S.S.G. §§ 2B1.1(b)(10)(C)(ii)

and 2B1.6. Section 2B1.1(b)(10)(C)(ii) addresses merely the possession of

multiple means of identification, not the use of such means. Section

2B1.6—which governs § 1028A sentences—prohibits a sentencing court from

“apply[ing] any specific offense characteristics for the transfer, possession, or use

of a means of identification when determining the sentence” for the offense

underlying a § 1028A conviction. U.S.S.G. § 2B1.6, cmt. n.2. But § 2B1.6 does

not explicitly exclude imposition of § 2B1.1’s sophisticated means enhancement,

see United States v. Garro, 517 F.3d 1163, 1170 (9th Cir. 2008), and nothing in the

Guidelines prohibits a district court from considering a defendant’s use of a means

of identification when the court makes its sophisticated means inquiry.

      When viewed together, each of the factors that the district court considered

demonstrate above-average sophistication, even though they appear relatively

simple when viewed in isolation. Accordingly, the district court’s finding of
                                         -5-
sophisticated means was not clearly erroneous, and it did not abuse its discretion in

applying U.S.S.G. § 2B1.1(b)(9)(C)’s two-level enhancement.

      Finally, the district court did not abuse its discretion by running Defendant’s

two § 1028A sentences consecutively. Section 1028A gives district courts

discretion to run statutory sentences consecutively, “provided that such discretion

shall be exercised in accordance with any applicable guidelines and policy

statements issued by the Sentencing Commission pursuant to section 994 of title

28.” 18 U.S.C. § 1028A(b)(4). The Guidelines in turn explicitly address

consecutive sentences under § 1028A and offer a non-exhaustive list of factors that

district courts should consider. See U.S.S.G. § 5G1.2, cmt. n.2(B). Although the

Guidelines recommend running § 1028A sentences concurrently where, as here,

the underlying offenses are groupable under § 3D1.2, they do not forbid

consecutive sentences under such circumstances. See U.S.S.G. § 5G1.2, cmt.

n.2(B)(ii) (“Generally, multiple counts of 18 U.S.C. § 1028A should run

concurrently with one another in cases in which the underlying offenses are

groupable under § 3D1.2.” (emphasis added)).

      In this case, the district court opted for consecutive sentences because (1)

Defendant victimized multiple people, including some not named in the

indictment; (2) Defendant’s § 1028A conduct substantially harmed the victims;
                                         -6-
and (3) his scheme was sophisticated, extensive, and long-lasting. These three

factors, but especially the number of victims, provide a rational and objective basis

for imposing consecutive § 1028A sentences, particularly where § 1028A does not

itself provide for incremental punishment in cases involving multiple victims.

More victims arguably mean more harm, warranting greater punishment.

      The district court could have more specifically addressed why consecutive

sentences were appropriate despite the groupability of Defendant’s underlying

convictions. Nevertheless, both § 1028A and the Guidelines give district courts

discretion to run § 1028A sentences consecutively, and we cannot say that the

district court abused such discretion here.

      AFFIRMED.
