          United States Court of Appeals
                       For the First Circuit

No. 07-2605

                     UNITED STATES OF AMERICA,

                             Appellee,

                                 v.

                           RONALD EVANO,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Rya W. Zobel, U.S. District Judge]


                               Before

                      Boudin, Lipez and Howard,

                          Circuit Judges.


     Raymond Mansolillo with whom Law Office of Raymond Mansolillo
was on brief for appellant.
     Jack W. Pirozzolo, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.



                          January 22, 2009
            BOUDIN, Circuit Judge.        Between around August 1997 and

June 2005, Ronald Evano and his wife engaged in a series of frauds

by intentionally ingesting glass and then claiming that it came

from food sold by various restaurants, supermarkets and hotels. To

avoid detection, they used fictitious identifications and submitted

false insurance claims in several different states.           Evano and his

wife bilked insurers of over $200,000 and incurred over $100,000 in

unpaid medical bills.

            On March 16, 2006, the government charged Evano in a 33-

count    indictment   alleging    various    forms   of   fraud   and   false

statements.1    Evano pled guilty to 20 counts and was sentenced to

63   months    imprisonment,     along    with   supervised   release    and

restitution requirements. This appeal is concerned with challenges

to the district court's sentencing, which was based on a guideline

range of 51-63 months, calculated using a total offense level of 22

and a criminal history category (CHC) of III.

            The calculation began with an initial base offense level

of 7, which was increased as follows: 12 levels for a loss amount

between $200,000 and $400,000, U.S.S.G. § 2B1.1(b)(1)(G) (2005); 2

levels because the offense involved between 10 and 50 victims, id.

§ 2B1.1(b)(2)(A); 2 levels based on use of sophisticated means, id.


     1
      Evano was indicted and charged with mail fraud, 18 U.S.C. §
1341 (2000); wire fraud, id. § 1343; identity fraud, id. §
1028(a)(7); social security fraud, 42 U.S.C. § 408(a)(7)(B) §
(C)(2000); conspiracy to defraud the United States, id. § 371; and
false statements relating to health care matters, id. § 1035(a).

                                    -2-
§ 2B1.1(b)(9)(C); and 2 levels based on identity theft, id. §

2B1.1(b)(10)(C)(ii).     The resulting sum was then reduced 3 levels

for acceptance of responsibility, id. § 3E1.1.

             On appeal, Evano challenges the sophisticated means and

identity theft enhancements, as well as his category III criminal

history designation.      We review de novo the district court’s

reading of guideline provisions, United States v. Stoupis, 530 F.3d

82, 84 (1st Cir. 2008), and underlying factual findings for clear

error, id.    Deference may be accorded, depending on circumstances,

to application of general standards to particular facts.      United

States v. Duclos, 214 F.3d 27, 31 (1st Cir. 2000).

             Evano received the two-level identity theft enhancement

for “possession of five or more means of identification that

unlawfully were produced from, or obtained by the use of, another

means of identification.”       USSG § 2B1.1(b)(10)(c)(ii).    Evano

claims that the enhancement was inapplicable because he did not use

false information to create or obtain other documents.      However,

the pre-sentence report shows that Evano used the social security

numbers of at least eight individuals in order to obtain documents

such as driver's licenses and Social Security cards.     On multiple

occasions, Evano used a social security number that was not his own

to secure a Massachusetts driver's license.

             Relying on United States v. Godin, 534 F.3d 51 (1st Cir.

2008), Evano also argues that the government failed to prove that


                                  -3-
he knew the false ID information was of an actual person.    Godin

held that the federal aggravated identity theft statute, 18 U.S.C.

§ 1028A(a)(1) (2006), requires that the defendant knew that the

false information belonged to a real person.   The government says

that the sentencing enhancement does not require such knowledge:

that it is enough that he used the "means of identification."   The

government is correct that Godin does not apply here.

          The federal statute at issue in Godin makes it criminal

for one who, “during and in relation to” a felony, “knowingly

transfers, possesses, or uses, without lawful authority, a means of

identification of another person.”      18 U.S.C. § 1028A(a)(1).

Godin, applying the rule of lenity, read “knowingly” to apply to

“of another person,” thus requiring that the defendant know that

identification information pertains to an actual person.   534 F.3d

at 61.   By contrast, the enhancement at issue here requires only

"possession of five or more means of identification that unlawfully

were produced from, or obtained by the use of, another means of

identification.”   The enhancement provision--unlike the statute--

does not use the word "knowingly."

          Sentencing enhancements often apply even without a strong

mens rea requirement. United States v. Figuereo, 404 F.3d 537, 541

(1st Cir. 2005); United States v. Lavender, 224 F.3d 939, 941 (9th

Cir. 2000).   Here, the "legislative history" of the enhancement,

adopted pursuant to a statutory directive, bears out this reading.


                                -4-
As the Sentencing Commission explained, the guideline sought to

address Congress’ concern with the harm suffered by the victims

rather than the mens rea of the defendant.          U.S.S.G. Supplement to

Appendix C, Amendment 596 (statute instructed the Commission to

consider the number of victims, harm to their reputations, and

inconvenience produced by the theft of their identities).

            Indeed, in construing an adjacent subsection of the same

identity theft provision, U.S.S.G. § 2B1.1(b)(9)(C)(i) (enhancement

“[i]f the offense involved . . . the unauthorized transfer or use

of any means of identification unlawfully to produce or obtain any

other means of identification”), the Seventh Circuit held that the

provision   does   not    require    that   one   know   that   the   means   of

identification relates to a real person.           United States v. Cisse,

103 Fed. Appx. 27, 29-30 (7th Cir. 2004) (unpublished opinion)

(saying “[i]t is not unforeseeable or even unlikely that a made-up

social security number will turn out to belong to a real person").

            Evano also challenges the district court’s two-level

enhancement    for       “use   of    sophisticated       means,”     USSG     §

2B1.1(b)(9)(c).      He contends that use of false identification is

not a “sophisticated” means of carrying out a fraud but rather

quite typical, and therefore already punished by the sentence

dictated by the statute and guidelines base offense level. But the

district judge imposed the sophisticated means enhancement not




                                      -5-
simply because Evano used false IDs and documents but because he

undertook elaborate efforts to conceal his scheme.

            The district court's reading of the guideline was sound

and   its     application   reasonable.      The   commentary,   USSG

2B1.1(b)(9)(C), cmt. n.8(B), instructs that

      [f]or purposes of subsection (b)(9)(C), "'sophisticated
      means'" means especially complex or especially intricate
      offense   conduct  pertaining   to   the   execution  or
      concealment   of  an   offense.   For   example,   in  a
      telemarketing scheme, locating the main office of the
      scheme in one jurisdiction but locating soliciting
      operations in another jurisdiction ordinarily indicates
      sophisticated means.

The scheme may be sophisticated even if the individual elements

taken alone are not. United States v. Jackson, 346 F.3d 22, 25 (2nd

Cir. 2003).

            Here, the Evanos targeted multiple restaurants, hotels,

supermarkets, hospitals, doctors and insurance companies in several

different regions, including Massachusetts, Rhode Island, Maryland,

Virginia and the District of Columbia.    They used fictitious names,

fake identifications such as false social security numbers, and most

importantly, they actually ingested glass particles.    All this was

enough to make their scheme more effective and difficult to thwart,

and it is enough to justify the enhancement.

            Finally, Evano does not dispute that his offenses were

scored correctly under the guidelines and formally place him in

criminal history category III; but he argues that this assessment

overstates the seriousness of his criminal past.    He says that none

                                 -6-
of his prior convictions involved violent crimes or drug offenses.

Rather, they involved motor vehicle violations, one DUI, larceny,

theft and shoplifting.

            Whether    this   attack    is   permitted    might   be   debated.

Insofar as Evano is claiming that the district judge should have

"departed" from the guideline's category III designation,                   the

district    court's    decision   is   unreviewable      unless   based   on   a

misapprehension by the judge of his own authority, United States v.

Richardson, 515 F.3d 74, 86 (1st Cir. 2008), and of this there is

no evidence.     To the extent the claim is framed as a post-Booker

challenge   to   the   overall    reasonableness    of    the   sentence,   the

district court's explanation as to criminal history is reasonable:

            My sense is that the criminal history is,
            indeed, long and I think, on the other hand,
            the nature of the offenses is not the sort
            that we see in the gun and drug cases. There
            is no violence. There is no life-endangering
            activity.    It’s mostly driving without a
            license, shoplifting, disorderly conduct, and
            the like.

            On the other hand, it is, as I said before,
            relentless, and by virtue of the fact that it
            is relentless, Mr. Evano is a danger to the
            society. He simply does not respect the rules
            under which we work.

            Nonetheless, I think that the Criminal History
            Category 3 properly reflects both the length
            and the nature of the offenses and will,
            therefore, agree with the probation report
            that Criminal History Category 3 is the




                                       -7-
             correct one, and will go neither up nor down
             on the Criminal History Category.2

             It is not drugs and violence alone that mark out someone

as habitually criminal.       The present scheme, although treated as a

continuing    pattern    of   fraud,   endured   over   a   long   period;   it

doubtless caused much trouble and disruption; and even probation

status did not deter Evano from halting his criminal conduct. There

is nothing in the district court's assessment that is unreasonable.

             Affirmed.




     2
      The sentencing judge’s final remark is in respect to a
request by the government to depart upward to a CHC IV.

                                       -8-
