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Identity fraud can underpin a mandatory two-year identity theft sentence enhancement, even if the identity wasn’t stolen, the U.S. Court of Appeals for the 1st Circuit has ruled in two cases. The Nov. 2 rulings in U.S. v. Ozuna-Cabrera and U.S. v. Kasenge, which are unrelated cases, affirmed the convictions and sentences of two defendants. In Ozuna-Cabrera, the 1st Circuit upheld a 70-month sentence issued against Yeifrin Rafael Ozuna-Cabrera by Judge Richard Stearns of the District of Massachusetts in July 2009. Ozuna-Cabrera was charged for purchasing a passport and a Social Security card. The sentence included two years for aggravated identity theft. In March 2009, Ozuna-Cabrera also pleaded guilty to two counts of false statements in a passport application and one count of unlawful re-entry of a deported alien, which led to the additional 46 months in his sentence. The Kasenge case upheld District of Maine Judge George Singal’s 25-month sentence for Thomas Kasenge in June 2009. Kasenge was charged for giving an immigrant whose visa had expired permission to use his driver’s license and Social Security card. Singal sentenced him to two years for aiding and abetting aggravated identity theft and one month for three other counts, including aiding and abetting Social Security fraud, aiding and abetting employment verification fraud and making a false statement to a government agency. Judge Jeffrey Howard wrote both opinions, joined by Chief Judge Sandra Lynch and Judge O. Rogeriee Thompson. In Ozuna-Cabrera, Howard wrote that the phrase “without lawful authority” in the aggravated identity theft statute does not require that the identification “be stolen, or otherwise taken without the permission of the owner. We reject such a narrow reading.” Ozuna-Cabrera’s first hurdle was that he failed to raise the claim at the lower court, so the 1st Circuit only reviewed it for plain error. That means that Ozuna-Cabrera had to show that the statute, the statute’s construction in light of the common law or binding judicial construction mandates his interpretation of the phrase. Howard rejected Ozuna-Cabrera’s argument that the phrase “without lawful authority,” is equivalent to “without authorized permission.” He wrote that the statute reasonably bars “the transfer, possession, or use of another person’s means of identification, absent the right or permission to act on that person’s behalf in a way that is not contrary to the law.” Regardless of how the identification is obtained, if its use breaks the law, it violates the statute, Howard wrote. The aggravated identity theft statute is a “logical extension” of the identity fraud statute, which hands out more severe punishment for identity crimes committed in relation to specific felonies noted in the statute, Howard wrote. These felonies include theft of public money, employee benefit plan theft, false citizenship claims, false statements related to acquiring a firearm, mail, bank, and wire fraud, crimes related to passports and visas, falsely obtaining a company’s customer information, various immigration offenses and false statements relating to the Social Security Act. “Without question, Congress harbored concerns over criminals who actually steal other people’s identities,” Howard wrote. “There is nothing to suggest, however, that Congress intended to so narrowly restrict the statute’s reach to identity crimes involving such traditional notions of theft.” Howard noted that a 2004 House of Representatives report that Ozuna-Cabrera referenced stated that the terms “identity theft” and identity fraud” “refer to all types of crimes in which someone wrongfully obtains and uses another person’s personal data,” Howard wrote. He noted that five other appellate courts “have concluded that theft of the means of identification is not required to trigger criminal liability” under the statute, citing cases from the 3d , 4th, 6th , 8th and 11th circuits. Howard also said that Ozuna-Cabrera’s reliance on two other cases was misplaced because they addressed a different question. The 2009 U.S. Supreme Court ruling in Flores-Figueroa v. U.S. ruled that the sentence enhancement required proof that the user of an identity card or Social Security number knew it belonged to an actual person. The D.C. Circuit made a similar ruling in 2008 in U.S. v. Villanueva-Sotelo. “Neither court squarely considered, much less determined, whether the statute would be violated if the means of identification was not actually stolen,” Howard wrote. Addressing Ozuna-Cabrera’s other grounds for appeal, Howard wrote that there was no plain error in the district court’s acceptance of Ozuna-Cabrera’s guilty plea and his sentence fell properly within the guidelines. Ozuna-Cabrera’s lawyer, Lisa Aidlin, a solo practitioner in Sharon, Mass., said she plans to petition the 1st Circuit for an en banc rehearing. “This is one of those technically very interesting statutory interpretation type of cases,” she said. Aidlin also said the Supreme Court found in Flores-Figueroa that there was “no question” but that the law’s intent was to punish thieves. There’s an extra two-year penalty for aggravated identity theft that doesn’t come with identity fraud,” Aidlin said. “My client didn’t do that. He had permission to use the information.” The U.S. Attorney’s Office for the District of Massachusetts, which represented the government, “is pleased with the court’s decision,” according to spokeswoman Christina DiLorio Sterling. The 1st Circuit’s holding in Kasenge relies on Ozuna-Cabrera and addresses an additional argument raised by Kasenge. Kasenge claimed the statute’s phrase “without lawful authority” is redundant because any transfer, possession or use of another person’s identification during and in relation to one of the listed felonies is always illegal, so it could never be done with lawful authority. “It takes little imagination to conceive instances in which a person might transfer, possess, or use another person’s means of identification, during and in relation to a predicate offense, in a manner that is lawfully authorized,” Howard wrote. As an example, Howard noted that workers at McDonald’s and Hannaford’s who obtained Kasenge’s identifying documents from the immigrant to whom Kasenge gave them transferred those documents for administrative review “during and in relation to” the fraud, yet they acted with lawful authority. Renée Bunker, a Maine assistant U.S. attorney and the government’s attorney in the Kasenge case, said that Ozuna-Cabrera spells out most of the court’s reasoning on the issue and the Kasenge ruling fills in the small gap that remained. “To the extent that the 1st Circuit has joined the other circuits, it’s important for us to have a precedent for that as well,” Bunker said. Kasenge’s lawyer, Jane Elizabeth Lee of Portland, Maine, said she was extremely disappointed to learn about the decision.”We are considering filing a petition for certiorari to the Supreme Court.” Sheri Qualters can be contacted at [email protected].

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