United States v. Uchenna Azubuike

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 12, 2018
• Docket: 17-14738
• Status: Unpublished

Opinion

Case: 17-14738 Date Filed: 06/12/2018 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14738 Non-Argument Calendar ________________________

D.C. Docket No. 7:16-cr-00016-HL-TQL-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

UCHENNA AZUBUIKE,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Middle District of Georgia ________________________

(June 12, 2018)

Before TJOFLAT, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM: Case: 17-14738 Date Filed: 06/12/2018 Page: 2 of 6

Mr. Azubuike pled guilty to a misdemeanor charge of possessing false

identification documents, 18 U.S.C. § 1028(a)(6), which has a base offense level of

six under the U.S. Sentencing Guidelines. At Mr. Azubuike’s sentencing hearing,

the district court also concluded that two sentencing enhancements applied—one

two-level enhancement under U.S.S.G. § 2B1.1(b)(2) (a theft offense involving ten

or more victims) and another two-level enhancement under § 2B1.1(b)(11) (a theft

offense involving the possession or use of an “authentication feature”). The

district court therefore sentenced Mr. Azubuike based on a total offense level of

ten.

On appeal, Mr. Azubuike argues that the district court should not have

applied these two enhancements. We accept the argument with respect to the first

and reject the one with respect to the second, and consequently affirm in part and

reverse in part. We vacate Mr. Azubuike’s sentence and remand for resentencing.

Mr. Azubuike’s argument regarding the first enhancement, under

§ 2B1.1(b)(2) (for an offense with ten or more victims), is that the enhancement

did not apply to him because a “victim” in a case like this one is someone “whose

means of identification was used unlawfully or without authority,” U.S.S.G.

§ 2B1.1(b)(2), app. note 4(E) (emphasis added), and, although he possessed the

fraudulent passport cards of 13 people, he only used one of them unlawfully or

without authority, so there was only one victim.

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We agree. Our recent decision in United States v. Hall, 704 F.3d 1317 (11th

Cir. 2013), is directly on point here. Interpreting the same terms in an earlier (but

in all relevant respects identical) version of the same Guidelines provision, we

concluded in Hall that applying this enhancement is only appropriate to the extent

that the defendant engaged in “the actual use of [a putative victim’s] identifying

information for a fraudulent purpose.” Id. at 1323. In Hall, the defendant sold

means of identification for between 65 and 141 individuals, and her coconspirators

then fraudulently used the information of 12 of these individuals (to secure credit

cards). Accordingly, we held that it was error to enhance Ms. Hall’s sentence

based on the existence of 50 or more victims, and that the enhancement for ten or

more victims was “the appropriate one.” Id. Here, likewise, the record reflects

that Mr. Azubuike possessed the identifying information of 13 individuals, but not

that he used the identifying information of anyone beyond one person (for the

purpose of defrauding workers at a Verizon store into selling him a phone

associated with that name). Indeed, as the government conceded at the sentencing

hearing, “There was one card that the government can prove that was actually

used. . . . The other 12 cards we do know were possessed by the defendant. The

government cannot prove at this juncture that they were actually used in any way,

shape or form by Mr. Azubuike. . . . [W]e do not know that they were actually

used to purchase anything or to -- or in any other manner.” D.E. 57 at 7–8

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(emphasis added). The government also admitted: “We don’t have evidence that

he actually created the[ cards].” Id. at 8. Because the government bears the burden

of establishing an enhancement which increases a defendant’s offense level, see

United States v. Washington, 714 F.3d 1358, 1361 (11th Cir. 2013), and because

nothing in the record indicates any kind of “use” for 12 out of the 13 putative

victims that the record reflects, we conclude that the district court erred in

enhancing based on a finding of “10 or more victims.”

Mr. Azubuike’s argument with respect to his second enhancement, under

§ 2B1.1(b)(11) (for an offense involving the possession or use of an

“authentication feature,” defined at 18 U.S.C. § 1028(d)(1) and incorporated by

U.S.S.G. § 2B1.1, app. note 10(A)), is that the enhancement was improper because

the only arguable “identification features” on the card that he used—a passport

number and an image of Mr. Azubuike’s face—are not the kind of things that

“distinguish between an authentic and a fabricated card in the way that a hologram,

watermark, or seal can.” Appellant’s Br. at 18.

We disagree. Images and strings of numbers may indeed be different from

holograms in the way that Mr. Azubuike contends, but this does not put them

outside the realm of “authentication features” as defined in 18 U.S.C. § 1028(d)(1).

The relevant definition of “authentication feature” includes among the available

alternatives not only production techniques that are used “individually . . . to

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determine if the document is counterfeit,” such as “hologram[s]” and

“watermark[s],” but also easier-to-counterfeit features that “in combination with

another feature” are used “to determine if the document is counterfeit,” including

“sequence[s] of numbers or letters” and “image[s].” 18 U.S.C. § 1028(d)(1)

(emphases added). So, even granting that the latter features do not, “in a vacuum,

. . . distinguish between an authenticated and a fabricated card,” as Mr. Azubuike

argues, this does not render them any less “authentication features.”

In sum, the district court correctly applied the § 2B1.1(b)(11) enhancement,

but erred in applying the § 2B1.1(b)(2) enhancement. Correcting for the error, Mr.

Azubuike’s total offense level should have been eight, not ten, and his sentence

range under the guidelines should have been lower.

“When a defendant is sentenced under an incorrect Guidelines range . . . the

error itself can, and most often will, be sufficient to show a reasonable probability

of a different outcome absent the error.” Molina-Martinez v. United States, 136 S.

Ct. 1338, 1345 (2016). See also United States v. Frazier, 605 F.3d 1271, 1283

(11th Cir. 2010). Here, the government does not argue that the sentence—at the

upper limit of the guidelines range that the district court calculated—was proper

notwithstanding any errors that this Court might identify. Consequently, we affirm

with respect to the § 2B1.1(b)(11) enhancement, reverse with respect to the

§ 2B1.1(b)(2) enhancement, vacate the sentence, and remand for resentencing.

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AFFIRMED IN PART AND REVERSED IN PART; VACATED AND

REMANDED FOR RESENTENCING.