A federal appeals court has affirmed a sentence for aggravated identity theft even though the defendant bought the identity information he used for the fraud from a willing seller.

On February 7, the U.S. Court of Appeals for the Sixth Circuit became the seventh circuit to rule that the federal aggravated identity theft law, which carries a two-year prison sentence, covers more than actual theft.

Since 2007, the First, Third, Fourth, Seventh, Eighth and Eleventh circuits have also held that the phrase ‘without lawful authority’ in the statute applies to more than theft.

In the case, U.S. v. Lumbard, the appeals court affirmed a four-year sentence and $30,000 fine for Nathan Lumbard issued by Judge Robert Holmes Bell of the Western District of Michigan.

In July 2009, Lumbard had outstanding warrants for several crimes, including theft and aggravated battery.

A mutual acquaintance introduced him to a man who resembled him, Justin Cheesebrew. For $500, Cheesebrew told Lumbard his birth date, Social Security number, place of birth and information about his parents. Lumbard used the information to get a copy of Cheesebrew’s birth certificate, a driver’s license and a passport with Cheesebrew’s information and his own photograph.

Lumbard tried to fool authorities with a fake suicide note on a bridge near Cairo, Ill. He then traveled to Tokyo, Thailand and Burma, where he was arrested in January 2011 and extradited to the United States.

Back home, he faced an indictment for falsely representing information and knowingly providing false identifying documents on a passport application. The other charge was using another person’s name, Social Security number, date of birth and driver’s license to get a passport, which triggers the criminal penalties for aggravated identity theft. He pleaded guilty and reserved the right to appeal the denial of his motion to dismiss the aggravated identity theft charge.

Lumbard argued on appeal that the U.S. Supreme Court’s 2009 ruling in Flores-Figueroa v. U.S. limited the aggravated identity theft crime to situations involving theft. In Flores-Figueroa, the Supreme Court held that the government must prove a defendant knows that the identity information belongs to a real person.

Chief Judge Curtis Collier of the Eastern District of Tennessee, who sat on the case by designation, wrote the opinion. Sixth Circuit judges Danny Boggs and Boyce Martin Jr. joined him.

Collier wrote that "one could have permission to use an individual’s identifying information, but that permission itself does not confer lawful authority to misuse the information." Because the aggravated identity theft statute "only applies when the information is used in connection with one or more of the enumerated felonies," he wrote, "permission will never be sufficient to avoid its application."

Collier noted that four of the six circuits that have determined the statue applies to more than mere theft ruled after Flores-Figueroa and the Eighth Circuit has since reaffirmed its pre-Flores-Figueroa conclusion.

Collier also determined that the $30,000 fine was reasonable. He affirmed Bell’s calculations of the sentencing guidelines range and grant of the government’s motion for an upward departure based on Lumbard’s criminal history. The new offense level carried a fine range of $4,000 to $40,000.

Collier found that the court properly considered deterrence and Lumbard’s ability to pay, including a recent inheritance from his deceased grandmother, in setting the fine.

Lumbard’s lawyer, Anastase Markou of Levine & Levine in Kalamazoo, Mich., said he’s disappointed that the Sixth Circuit failed to read the definition section of the statute concerning fraud connected to identification documents and how that relates to the aggravated identity theft statute.

"If you’re going to be a court that cares about statutory construction, it’s difficult to make a finding that this is an identity theft crime," Markou said.

Markou said that issue has been in dispute in some circuits and that he’s considering filing a writ of certiorari with the Supreme Court.

In a an e-mailed statement, Assistant U.S. Attorney Clay Stiffler said that the U.S. Attorney’s Office for the Western District of Michigan is pleased that the Sixth Circuit followed the six other circuits: "This decision is particularly significant because, as the Court noted, the defendant’s reading of the statute would have prevented the prosecution of individuals who lawfully possess identifying information, such as a creditor who obtains an applicant’s social security number, but then unlawfully misuse the information later."

Assistant U.S. Attorney Jennifer McManus argued the case.

Sheri Qualters can be contacted at squalters@alm.com.