United States v. A.M.

927 F.3d 718
CourtCourt of Appeals for the Third Circuit
DecidedJune 20, 2019
DocketNo. 18-1120
StatusPublished
Cited by3 cases

This text of 927 F.3d 718 (United States v. A.M.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. A.M., 927 F.3d 718 (3d Cir. 2019).

Opinion

BIBAS, Circuit Judge.

The text of a law governs its reach. We will neither read in new limits nor read out existing limits on its application. In seeking to lower his sentence, A.M. asks us to do both.

First, he asks us to impose new limits on a Sentencing Guidelines enhancement. A.M.'s sentence for bank fraud was enhanced for using "device-making equipment." U.S.S.G. § 2B1.1(b)(11)(A)(i). But he was also convicted of aggravated identity theft. And that conviction precludes any enhancement for "the transfer, possession, or use of a means of identification." Id. § 2B1.6 cmt. n.2. So A.M. argues that his aggravated-identity-theft conviction precludes the device-making enhancement. But while device-making equipment can copy means of identification, it is not itself a means of identification. So the device-making enhancement was proper.

Second, he asks for a departure below the mandatory-minimum sentence for aggravated identity theft. But the law empowers courts to depart below a statutory minimum only "[u]pon motion of the Government." 18 U.S.C. § 3553(e). The government made no such motion here. So both of A.M.'s arguments fail, and we will affirm.

I. BACKGROUND

In 2014, A.M. defrauded two banks and their customers. He put skimming devices and PIN-pad overlays onto ATMs to capture *720victims' account information and PINs. He then used that information to make counterfeit debit cards that allowed him to buy goods and withdraw cash.

But he got caught. He was charged with nineteen counts of bank fraud and aggravated identity theft under 18 U.S.C. §§ 1028A and 1344. Under a plea agreement, he pleaded guilty to only one count of bank fraud and one of aggravated identity theft. Each crime required a separate sentence, because the law forbidding aggravated identity theft generally requires a mandatory two-year, consecutive sentence. Id. § 1028A(a)(1) & (b). And the government agreed that, if it found that A.M. had provided substantial assistance, it could move for a downward departure below the guideline range (under U.S.S.G. § 5K1.1 ), below the statutory minimum (under 18 U.S.C. § 3553(e) ), or both.

So the District Court had to impose two sentences for the two crimes, and A.M. objected to each one. First, he objected to his guideline calculation for the bank-fraud conviction. The Court calculated his guideline range for bank fraud as 15 to 21 months. A.M. objected to that calculation because it included a two-level enhancement for using "device-making equipment" to make counterfeit debit cards. U.S.S.G. § 2B1.1(b)(11)(A)(i). He argued that his conviction for aggravated identity theft precluded that enhancement. The Court disagreed. But because A.M. had cooperated, the government moved under § 5K1.1 to reduce his bank-fraud sentence. The Court granted that motion and sentenced him to only ten months' imprisonment on that count.

Second, A.M. objected that the government had not also moved for a departure below the mandatory-minimum sentence for his aggravated-identity-theft sentence. According to A.M., the government had agreed to do so as part of his plea deal. He argued that, because the government had violated its agreement, the Court should grant the departure of its own accord. The Court refused, finding that identity theft is an especially severe crime. So it sentenced A.M. to the mandatory-minimum sentence of two years' consecutive imprisonment for the identity theft.

A.M. now appeals. We review all questions of law de novo. United States v. Torres , 251 F.3d 138, 145 (3d Cir. 2001).

II. AGGRAVATED IDENTITY THEFT DOES NOT PRECLUDE AN ENHANCEMENT FOR USING DEVICE-MAKING EQUIPMENT

A.M. first argues that because he was sentenced for aggravated identity theft, his bank-fraud sentence cannot be enhanced for using device-making equipment to make counterfeit debit cards. But that is not so. The Guidelines bar an enhancement only for having or using "a means of identification." And while device-making equipment can copy a means of identification, it is not the same as a means of identification.

For those convicted of aggravated identity theft, the Guidelines say only to apply the statutory sentence. U.S.S.G. § 2B1.6. That sentence is a mandatory, consecutive two years' imprisonment. 18 U.S.C. § 1028A(a)(1) & (b). But aggravated identity theft requires proof of an underlying felony. Id. § 1028A(a)(1). That underlying felony may overlap with identity theft. Because, with rare exceptions, the aggravated-identity-theft sentence is consecutive, a defendant could be punished twice for the same crime. To avoid double punishment, the Guidelines bar enhancing the underlying felony sentence "for the transfer, possession, or use of a means of identification." U.S.S.G. § 2B1.6 cmt. n.2.

Here, the District Court added a two-level enhancement for using "device-making *721equipment" under § 2B1.1(b)(11)(A)(i). That enhancement applied to the underlying felony of bank fraud. And using device-making equipment is different from possessing, transferring, or using "a means of identification." U.S.S.G. § 2B1.6 cmt. n.2. A "means of identification" is information "that may be used ... to identify a specific individual," such as a person's name, driver's license number, or passport number. 18 U.S.C. § 1028(d)(7). But "device-making equipment" is equipment used to make credit cards, debit cards, and similar "access device[s]." 18 U.S.C. § 1029(e)(6) & (e)(1). That equipment can be used to copy a means of identification. The copying equipment, however, is not itself a means of identification. The Guidelines bar only enhancements for using the latter. So the Guidelines do not preclude the device-making-equipment enhancement.

Every other circuit to address this question agrees. United States v. Jones

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927 F.3d 718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-am-ca3-2019.