                                                                                FILED
                                                                    United States Court of Appeals
                                       PUBLISH                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     December 29, 2016

                                                                        Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                          Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 16-2022

JASONN GONZALES,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                            for the District of New Mexico
                           (D.C. No. 1:14-CR-00922-JB-1)
                       _________________________________

Brian A. Pori, Federal Public Defender, Albuquerque, New Mexico, for Defendant-
Appellant.

James R.W. Braun, Assistant United States Attorney, (Damon P. Martinez, United States
Attorney, with him on the brief ), Albuquerque, New Mexico, for Plaintiff-Appellee.
                        _________________________________

Before HARTZ, MURPHY, and HOLMES, Circuit Judges.
                  _________________________________

HARTZ, Circuit Judge.
                         _________________________________

      Defendant Jasonn Gonzales pleaded guilty in the United States District Court for

the District of New Mexico to four counts of mail fraud, see 18 U.S.C. § 1341, one count

of conspiracy to commit mail fraud, see 18 U.S.C. §§ 1341 and 1349, and one count of

aggravated identity theft, see 18 U.S.C. § 1028A, arising out of his fraudulent scheme to
obtain unemployment benefits from three state agencies. On appeal his sole argument is

that the district court erred in calculating his sentencing-guidelines offense level by

including as victims those persons whose identities had been stolen even though they

suffered no financial loss. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

       I.     BACKGROUND

       From January 2009 through May 2012, Defendant and Gerald Archuleta tricked

unemployment agencies in Texas, Colorado, and New Mexico into sending them prepaid

debit cards for unemployment benefits for unqualified people. They registered fake

companies with the agencies and paid unemployment taxes for them, listing real people

(with correct social security numbers and other personal information1) as employees of

the companies. They then submitted unemployment-benefit claims on behalf of those

people. The unemployment agencies mailed the debit cards to post office boxes rented

by the two men, who used the cards for their personal benefit.

       Law-enforcement officers searched Defendant’s home on May 22, 2012, and

found substantial evidence of the scheme. For reasons not apparent in the record on

appeal, Defendant was not indicted until almost two years later, on March 26, 2014. He

pleaded guilty on August 18, 2014, to all charges without the benefit of a plea agreement.

       When calculating Defendant’s offense level for the mail-fraud and conspiracy

charges, the probation office’s presentence report (PSR) started with a base level of 7.


1
 Apparently, Defendant obtained at least some of the information from people he
assisted with tax returns and from personnel files of employees at businesses where he
worked as an accountant.


                                              2
See USSG § 2B1.1(a)(1) (2014) (guideline for theft offenses).2 It raised the level because

of three special offense characteristics, adding 16 levels for an intended loss over $1

million, see id. § 2B1.1(b)(1)(I), two levels for Defendant’s use of sophisticated means,

see id. § 2B1.1(b)(10)(C), and four levels because the number of victims exceeded 50,

see id. § 2B1.1(b)(2)(B). The PSR then added four levels because Defendant was an

organizer or leader, see id. § 3B1.1(a), and subtracted three levels for acceptance of

responsibility, resulting in an offense level of 30. With Defendant’s criminal-history

category of II, his guidelines sentencing range was 108 to 135 months’ imprisonment.

For Defendant’s aggravated-identity-theft conviction, the PSR added the mandatory

consecutive two-year prison term. See 18 U.S.C. § 1028A; see also USSG § 2B1.6

(guideline for aggravated identity theft).

       Defendant objected to the number-of-victims enhancement on the ground that the

only financial losses from the scheme were suffered by the three state agencies. The PSR

counted 107 victims, however, because application note 4(E)(ii) to USSG § 2B1.1

defines victim to include “any individual whose means of identification was used

unlawfully or without authority.” Defendant argued that the application note could not be

used in calculating his sentence because he was also being sentenced for aggravated

identity theft under 18 U.S.C. § 1028A, and for someone so sentenced application note 2

to USSG § 2B1.6 prohibits applying any enhancement “for the transfer, possession, or

use of a means of identification.” At sentencing on December 4, 2014, the district court

2
  Throughout the opinion we refer to the November 1, 2014 version of the guidelines,
which was the version used for Mr. Gonzales’s sentencing. The parties do not dispute
that this was the correct version to apply.

                                             3
overruled the objection, adopted the PSR’s guidelines calculation, and varied downward

for an ultimate sentence of 111 months’ imprisonment.

       II.    DISCUSSION

       Several guidelines provisions are central to our discussion. Section 2B1.1(b)(2)

states: “If the offense . . . involved 50 or more victims, increase [the offense level] by 4

levels.” USSG § 2B1.1(b)(2). Application note 4(E) to that section defines victim where,

as here, the case “involve[s] means of identification.” The note incorporates the general

definition in application note 13 but also includes within the definition of victim “(ii) any

individual whose means of identification was used unlawfully or without authority.”4

These are the provisions used by the district court.

       Defendant’s arguments rest on an application note to the guidelines provision

concerning his conviction for aggravated identity theft under 18 U.S.C. § 1028A. The

guideline states: “If the defendant was convicted of violating 18 U.S.C. § 1028A, the

guideline sentence is the term of imprisonment required by statute [two years].” Id.

§ 2B1.6; see 18 U.S.C. § 1028A. Application note 2 to that section provides:

       If a sentence under this guideline is imposed in conjunction with a sentence
       for any underlying offense, do not apply any specific offense characteristic
       for the transfer, possession, or use of a means of identification when
       determining the sentence for the underlying offense. A sentence under this

3
  Application note 1 to § 2B1.1 defines victim as “(A) any person who sustained any part
of the actual loss determined under subsection (b)(1) [which refers to monetary harm]; or
(B) any individual who sustained bodily injury as a result of the offense.” Id. § 2B1.1
cmt. n.1.
4
  Application note 4(E) states in full: “Cases Involving Means of Identification.—For
purposes of subsection (b)(2), in a case involving means of identification ‘victim’ means
(i) any victim as defined in Application Note 1; or (ii) any individual whose means of
identification was used unlawfully or without authority.”

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       guideline accounts for this factor for the underlying offense of conviction,
       including any such enhancement that would apply based on conduct for
       which the defendant is accountable under § 1B1.3 (Relevant Conduct).

USSG § 2B1.6, cmt. n.2. (emphasis added)

       Defendant contends that this provision forbids use of application note 4(E) to

enhance his sentence. He argues that there were only three victims of his scheme—the

three state unemployment agencies—because they are the only ones who suffered

monetary loss. The other “victims” counted by the PSR were counted only because they

were “individual[s] whose means of identification was used unlawfully or without

authority.” USSG § 2B1.1 cmt. n.4(E). But, the argument continues, counting them

would be a prohibited application of a “special offense characteristic for the transfer,

possession, or use of means of identification.” Therefore, he says, the four-level 50-

victim enhancement was improper.

       Defendant focuses on the guidelines’ use of the word any in application note 2,

arguing that the word requires a broad reading, “proscrib[ing] application of all [special

offense characteristics] of whatever kind ‘for the use of a means of identification.’” Aplt.

Op. Br. at 19. Noting that the express purpose of note 2 is to prevent double-punishing a

defendant who improperly uses another person’s identifying information, he suggests that

his conduct was double-punished because he received both the two-year consecutive term

under § 1028A and the victim enhancement for the same conduct. He contends that the

application note is unambiguous, but that even if it were unclear, the rule of lenity directs

us to interpret it in his—the defendant’s—favor.




                                              5
       This argument, however, appears to be foreclosed by circuit precedent. In United

States v. Manatau, 647 F.3d 1048, 1048–49 (10th Cir. 2011), the defendant pleaded

guilty to bank fraud and aggravated identity theft arising from his stealing and using

social security numbers, credit cards, and checks. In calculating the defendant’s offense

level, the court counted the number of victims based on application note 4(C) to § 2B1.1

(2009), which at that time defined victim “[i]n a case in which undelivered United States

mail was taken.” The definition included “any person who was the intended recipient, or

addressee, of the undelivered United States mail.” USSG § 2B1.1 cmt. n.4(C) (2009).

Almost none of these “victims” sustained actual monetary harm.

       Mr. Manatau contended on appeal that it was error to apply this enhancement,

raising the same argument advanced by Defendant here—that the enhancement was

forbidden by § 2B1.6 application note 2 because of his conviction under 18 U.S.C.

§ 1028A. We agreed with him that “the guidelines tell courts not to apply an

enhancement based on a ‘specific offense characteristic for the transfer, possession, or

use of a means of identification,’ where . . . a defendant has been convicted of aggravated

identity theft and bank fraud.” Manatau, 647 F.3d at 1057 n.4 (quoting USSG § 2B1.6

app. n.2). But we held that “the number of victims is not such an offense characteristic.”

Id.

       Defendant argues that Manatau is not controlling because “[n]owhere in

the . . . opinion or in the briefs in that case is there any mention of § 2B1.1’s application

note 4(E)(ii).” Aplt. Op. Br. at 21–22. He adds that “[i]t is not even apparent the district

court in that case applied that note since the defendant’s offenses occurred before the note


                                              6
went into effect on November 1, 2009.” Id. at 22. Therefore, he says, this court has not

yet addressed the implications of note 4(E)(ii).

       Defendant is correct that note 4(E)(ii) was not in effect when Mr. Manatau was

sentenced. But our broad language in Manatau did not restrict itself to any particular

definition of victim in the number-of-victims enhancement. We said without

qualification that “the number of victims” is not an offense characteristic encompassed by

application note 2 to § 2B1.6.

       Even if Manatau is not strictly controlling, we agree with it and apply it here.

Defendant conflates the nature of the crime and the extent of the crime. Application note

2 states that a guidelines enhancement based on the nature of the crime—“the transfer,

possession, or use of a means of identification”—cannot be applied to a defendant who is

also being sentenced under 18 U.S.C. § 1028A. But it does not restrict an enhancement

based on the extent of such a crime. In that circumstance there is no double counting. In

particular, using the definition of victim applied in this case does not lead to any double

counting. The aggravated-identity-theft statute, 18 U.S.C. § 1028A, imposes a

mandatory two-year consecutive sentence if a person “during and in relation to any

felony violation enumerated in [the statute], knowingly transfers, possesses, or uses

without lawful authority, a means of identification of another person.” The two-year

mandatory sentence does not depend on the number of persons whose identities have

been stolen. (Of course, a defendant may be convicted on multiple counts charging

violations of § 1028A, but the sentences on those counts may run concurrently. See id.

§ 1028A(b)(4); USSG § 2B1.6, cmt. n.1(B).) Thus, the sentence imposed for aggravated


                                              7
identity theft does not necessarily reflect the number of victims. For example,

Defendant’s sentence on the charge was going to be two years’ imprisonment no matter

how many identities he stole. Yet it is reasonable to treat criminal conduct more

seriously as the number of stolen identities increases, and application note 4(E)(ii) to

USSG § 2B1.1 accomplishes that. Certainly it was advantageous to Defendant that his

multiple identity thefts were taken into account under the application note rather than his

being charged with more than 100 counts of aggravated identity theft.

       A proper occasion for using application note 2 to § 2B1.6 would be when the

sentencing court would otherwise apply USSG § 2B1.1(b)(11)(C), which increases the

offense level if an offense involved “the unauthorized transfer or use of any means of

identification unlawfully to produce or obtain any other means of identification.” See

United States v. Anderson, 532 Fed. App’x 373, 378 (4th Cir. 2013) (offering this

provision as an example of an enhancement prohibited by § 2B1.6, app. n.2); United

States v. Lyles, 506 F. App’x 440, 447 (6th Cir. 2012) (same). We are not aware of any

other guideline that would come under application note 2; but the Sentencing

Commission may well have decided to speak in general language that could cover future

guidelines amendments.

       Finally, we note that our fellow circuits agree with our reading of the guidelines.

Every circuit to have ruled on this issue has allowed the enhancement. See United States

v. Ford, 784 F.3d 1386, 1397–98 (11th Cir. 2015); Anderson, 532 F. App’x 373; Lyles,

506 F. App’x 440; United States v. Yummi, 408 F. App’x 537, 541 (3d Cir. 2010). We

join this consensus.


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III.   CONCLUSION

We AFFIRM the district court’s judgment and sentence.




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