                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               _________________

                                     No. 18-2487
                                  _________________

                           UNITED STATES OF AMERICA

                                                 Appellant

                                            v.

                              ABDULRASHEED YUSUF

                                  _________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                             (D.C. No. 2-18-cr-0042-001)
                      District Judge: Hon. Katharine S. Hayden
                                  _________________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                  March 15, 2019

                Before: MCKEE, ROTH, and FUENTES, Circuit Judges.

                                  (Filed: July 15, 2019)
                                  _________________

                                      OPINION **
                                  _________________




**
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge.

       Abdulrasheed Yusuf was sentenced to three months’ imprisonment for conspiracy

to commit wire fraud, on top of a two year mandatory sentence for aggravated identity

theft. The Government appeals, arguing that the District Court erroneously considered

Yusuf’s aggravated identity theft sentence when determining the appropriate sentence to

impose for his conspiracy conviction. 1 For the following reasons, we will vacate and

remand for resentencing.



       Abdulrasheed Yusuf was a member of a conspiracy to steal money from individual

bank accounts. Co-conspirators contacted banks or financial institutions, impersonated an

account holder there, and withdrew significant sums of money. Yusuf’s role was to pick

up the resulting check at a mail carrier’s branch location and deposit it in a co-conspirator’s

bank account. To do this, Yusuf used fraudulent identification.

       Yusuf was apprehended in August 2017 when the Government intercepted two

checks from Prudential Insurance Company that his co-conspirators had requested to be

issued. The Government replaced one of the checks with a decoy check and surveilled the

branch location where the checks were being sent. After Yusuf and a co-conspirator picked

up the checks, they were stopped by the police. Yusuf possessed drivers’ licenses in the

names of two victims and two Visa cards in the name of one of those victims. Shortly

thereafter, Yusuf pled guilty to Count I, conspiracy to commit wire fraud, in violation of


1
 The Government does not argue, and we do not consider, whether Yusuf’s term of
imprisonment on Count 1 of his sentence is substantively unreasonable.
                                              2
18 U.S.C. § 1349, and Count II, aggravated identity theft, in violation of 18 U.S.C. §

1028A(a)(1).

         Aggravated identity theft under § 1028A carries a mandatory two year sentence, and

the parties agreed in the plea agreement that it would run consecutively. Importantly,

aggravated identity theft under § 1028A also prohibits courts from taking the mandatory

sentence into account when calculating a sentence for the predicate felony, here, conspiracy

to commit wire fraud:

               [I]n 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[.] 2

         With respect to the conspiracy conviction, the parties agreed that Yusuf’s offense

level was 14. The Probation Department determined that Yusuf had five criminal history

points, and therefore calculated his Guidelines range as 21–27 months on Count 1.

         Yusuf was sentenced on May 23, 2018. Acknowledging that Yusuf was only held

responsible for three checks and had a low-level role in the conspiracy, the Government

requested a sentence at the bottom of the Guidelines range (21 months). Yusuf, bound by

the plea agreement, did not ask for a variance. He did, however, tell the District Court that

he had no idea what was in the packages he picked up as part of the conspiracy.




2
    18 U.S.C. § 1028A(b)(3).
                                             3
       The District Court ultimately sentenced Yusuf to three months’ imprisonment on

the conspiracy conviction. The District Court likened Yusuf’s level of culpability to that

of a drug mule in a drug trafficking conspiracy case, and expressed concern at his low level

of involvement in the conspiracy.      The District Court also explained its view that

sentencing Yusuf was particularly difficult because of § 1028A:

              That [section, § 1028A(b)(3),] just doesn’t fit here because he
              barely committed the underlying offense, on one hand because
              of the nature of the conspiracy. He had to commit the
              aggravated identity theft in order to be part of the conspiracy,
              and I would consider it to be highly unfair in the
              proportionality determination that I make not to take that into
              consideration. . . . 3

       The District Court decided to grant Yusuf a downward variance, because doing

otherwise would be overly punitive:

              [T]here is such a confluence between Counts 1 and . . . 2, and
              I don’t find any guidance in the law that would require me to
              blindly add 24 months. It would almost be a form of double
              counting when the underlying offense in Count 1 is the very
              conduct that is punished Count 2. 4

       To do so, the District Court attempted to “close [its] eyes to Count 2” and instead

determined how it would sentence Yusuf for conspiracy to commit wire fraud with an

enhancement for the production or trafficking of an unauthorized or counterfeit access

device under Sentencing Guideline 2B1.1(b)(11)(B)(i). 5       Adding two points for the

enhancement, the District Court determined that Yusuf would be at a criminal offense level



3
  A.86–87.
4
  A.89.
5
  A.87–88.
                                             4
of 16, making the Guidelines range 27–33 months. Within that range, the District Court

decided to “cast my vote with the family members who have shown up here and the letters

that have been written and sentence Mr. Yusuf to 27 months.” 6 The court then explained

that the Mr. Yusuf was sentenced to three months’ imprisonment on Count 1, and 24

months’ imprisonment on Count 2 “in order to produce a total term of imprisonment of 27

months.” 7 Following sentencing, the Government appealed.
                                            8



      There is no doubt that § 1028A(b)(3) “bar[s] consideration of a mandatory

minimum” during sentencing for the predicate felony. 9 The Supreme Court as well as the

First, Seventh, Eighth, Ninth, and Tenth Circuits have explained that under § 1028A, a

sentencing court cannot reduce the sentence it would have otherwise imposed on a

predicate conviction because of the knowledge of a defendant’s two-year mandatory

minimum sentence for aggravated identity theft. 10

      The Government argues that the District Court abused its discretion by reducing

Yusuf’s term of imprisonment on Count 1 to three months in order to compensate for his




6
  A.94.
7
  A.95.
8
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over
the Government’s appeal under 18 U.S.C. § 3742(b).
9
  Dean v. United States, 137 S. Ct. 1170, 1178 (2017).
10
   See id.; see also United States v. Smith, 756 F.3d 1179, 1185–86 (10th Cir. 2014);
United States v. Wahid, 614 F.3d 1009, 1013–14 (9th Cir. 2010); United States v. Vidal-
Reyes, 562 F.3d 43, 50 (1st Cir. 2009); United States v. Omole, 523 F.3d 691, 699 (7th
Cir. 2008); United States v. Guillen-Esquivel, 534 F.3d 817, 819 (8th Cir. 2008).
                                            5
two-year mandatory sentence on Count 2. 11 Yusuf argues that his sentence on Count 1 was

not reduced in consideration of his mandatory sentence on Count 2. According to Yusuf,

the District Court’s “concentration was on conducting an independent evaluation of an

appropriate sentence for Count 1 standing alone, in light of the facts and circumstances of

the conspiracy and the roles played by Mr. Yusuf and his co-conspirators.” 12

       We agree with the Government. Courts run afoul of § 1028A(b)(3) when they

impose a sentence for a predicate felony and consider the mandatory minimum when doing

so, not only when the mandatory minimum is all they consider. 13 In United States v.

Omole, the Seventh Circuit explained that a judge violates § 1028A(b)(3) when she “even

slightly factor[s]” the mandatory sentence into her sentencing decision for the predicate

offense. 14 Here, while the District Court addressed several factors at sentencing, including

Yusuf’s character, criminal history, and low-level role in the conspiracy, there is no

question that the two year mandatory minimum sentence was at the very least a significant

consideration. On several occasions, the Court referenced its position that it could not

ignore Yusuf’s sentence on Count 2 because to do so would risk “a form of double

counting.” 15 Importantly, the Court noted that 27 months was an appropriate period of

incarceration for Yusuf, but then imposed a sentence of three months “in order to produce


11
   When a court commits an error of law during sentencing, it “by definition abuses its
discretion.” Koon v. United States, 518 U.S. 81, 100 (1996). Thus, if the District Court
violated § 1028A(b)(3) in imposing a sentence, it abused its discretion.
12
   Appellee’s Br. at 18.
13
   See Dean, 137 S. Ct. at 1178.
14
   United States v. Omole, 523 F.3d 691, 699 (7th Cir. 2008), abrogated on other grounds
by United States v. Statham, 581 F.3d 548 (7th Cir. 2009).
15
   A.89.
                                             6
a total term of imprisonment of 27 months.” 16 Section 1028A, however, has prohibited

courts from engaging in this type of discounting.



         For the foregoing reasons, we vacate and remand for resentencing.




16
     A.95.
                                             7
