United States v. Nolte , 844 F.3d 331 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1848
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN NOLTE, a/k/a George France,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise Jefferson Casper, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.
Elizabeth L. Prevett, Federal Public Defender Office, on
brief for appellant.
Robert E. Richardson, Assistant United States Attorney, and
Carmen M. Ortiz, United States Attorney, on brief for appellee.
December 20, 2016
TORRUELLA, Circuit Judge. A jury convicted Steven Nolte
of making false statements in a passport application, in violation
of 18 U.S.C. § 1542 (Count I), aggravated identity theft, in
violation of 18 U.S.C. § 1028A (Count II), and use of a falsely-
obtained Social Security account number to obtain benefits, in
violation of 42 U.S.C. § 408(a)(7)(A) (Count III). At sentencing,
the district court enhanced by four levels the Sentencing
Guidelines range for Nolte's conviction for Count I pursuant to
U.S.S.G. § 2L2.2(b)(3)(A) and ultimately sentenced him to twelve
months for Counts I and III,1 and to the mandatory consecutive
twenty-four months imprisonment term for his conviction for Count
II, resulting in an aggregated sentence of thirty-six months of
imprisonment. Nolte challenges the application of the four-level
enhancement as to Count I, as well as his conviction for aggravated
identity theft. Because we find that the four-level enhancement
was correctly applied, and Nolte's argument challenging his
conviction for aggravated identity theft is foreclosed by binding
circuit precedent, we affirm.
I. Background
A. Factual Background
Nolte was born in 1963 in Arizona, and lived there
through approximately 1997. He worked in real estate in Arizona
1 Counts I and III were grouped for sentencing purposes.
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during the early 1990s, where he befriended Steve France. Steve
France had, in addition to other siblings, a brother named George
who passed away in 1966, at the age of four days.
After his time working in real estate, Nolte set up a
business for computer consulting named Etlon Communications.
Nolte, through Etlon Communications, worked as an information
technology consultant to a company named Fulton Homes in the mid-
1990s. In 1997, approximately $571,000 was drawn from Fulton
Homes' bank account through five checks addressed to Etlon
Communications. These checks featured Fulton Homes' president's
forged signature. Most of these funds were transferred to a bank
located in Costa Rica, to the receipt of Nolte.
On May 13, 1997, Nolte obtained an Arizona driver's
license using the name of George France and a birth date in 1966.
Nolte maintained this identity for nearly two decades. On May 15,
1997, Nolte used that license to apply for a United States
Passport, under the name George France. In that application, he
stated that he was born in 1966 in Phoenix, Arizona, and he
provided a Social Security number ending in 7622. This Social
Security number actually belonged to a different person, who was
from Arizona. The United States issued the passport on May 16,
1997. The issuance of this passport was expedited, due to travel
plans to San José, Costa Rica.
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Shortly afterwards, on May 30, 1997, Nolte -- under the
identity of George France -- applied for a replacement passport at
the United States embassy in Costa Rica, stating that his passport
had been stolen. In the application, he provided a Social Security
number that differed by one number -- but that also ended in 7622
-- which actually belonged to a different person, who was from
Hawaii. The application also listed 1966 as his year of birth,
and was obtained by using the George France Arizona license and by
referencing the other, recently-obtained George France passport.
On June 9, 1999, Nolte -- as George France -- submitted
an application for a Social Security number, indicating that he
had never received one. He listed his birth year as 1966, and
identified himself using the May 30, 1997 passport and a birth
certificate he had acquired for George France, which had been
issued on May 13, 1997. He was subsequently issued a Social
Security number for George France, which ended in 8253. On April
19, 2007, Nolte filed for a renewal of the May 30, 1997 George
France passport. In the renewal application, he provided the
Social Security number for George France ending in 8253. The
renewed passport issued on April 30, 2007.
On May 11, 2012, Nolte went to the office of the Boston
Passport Agency seeking a replacement passport. He claimed that
he had accidentally put his April 30, 2007 passport through the
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washer and dryer, which had damaged it. He completed an
application for a replacement in which he again listed his name as
George France and provided personal information for George France,
including the Social Security number ending in 8253. He provided
the Arizona driver's license, the birth certificate, and the
damaged 2007 passport as proof of his identity.
The application was approved by the first passport
specialist, who dealt with Nolte in person, but required further
vetting before the passport was actually issued. During that
process, the application was flagged and sent to a fraud prevention
manager because the Social Security number used -- the one ending
in 8253, issued in 1999 -- had been assigned when the applicant
was thirty-three years old, which is an unusually late age for
receiving a Social Security number. The fraud prevention manager
called Nolte (as George France) and inquired why his Social
Security number had been issued so late in his life; he responded
that his mother had given her sons the same Social Security number,
that he had mistakenly used his brother's Social Security number
earlier in life, and that he had applied for a new number after
learning of the issue.
Shortly thereafter, special agents in the Department of
State began an investigation into the application. During that
investigation, on May 22, 2012, Nolte returned to the Boston
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Passport Agency to inquire about the status of the replacement
passport. While there, two agents advised him of his rights and
conducted an interview. As he had listed in the passport
application, he told the agents that his name was George France;
he was born in Phoenix, Arizona in 1966; both of his parents had
passed away; his Social Security number was the one ending in 8253;
and other personal details relating to the France family. He
provided the agents with the same explanation about his use of
varying Social Security numbers that he had given to the fraud
prevention specialist -- that he and his brothers had been issued
the same Social Security numbers, and that he had used that number
until he learned of the mistake after his brother Steve died in
1997. Much of this information was incorrect, however; for
example, as testified at trial, the actual George France had two
sisters, and his mother, Anna France, was indeed alive.
B. Procedural Background
On August 20, 2013, a federal grand jury indicted Nolte
on Counts I, II, and III. He was arrested in Las Vegas, Nevada
on September 3, 2013, and the case went to trial on March 2, 2015.
The evidence presented at trial included fingerprint matches, DNA
evidence, and the testimony of two witnesses who knew Nolte from
Arizona to show that the defendant was in fact Steven Nolte. On
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March 6, 2015, the jury returned a guilty verdict on all three
counts.
The Presentence Investigation Report ("PSR") calculated
Nolte's total offense level as 12; this included a four-level
enhancement because of the fraudulent use of a United States
passport pursuant to U.S.S.G. § 2L2.2(b)(3). Nolte objected to
this enhancement, claiming that he did not "use" a passport since
the 2007 passport was damaged, and that Application Note 2 to
U.S.S.G. § 2B1.6 precluded applying an enhancement to Count I for
using a means of identification because he was also charged with
a count of aggravated identity theft related to that means of
identification. The probation officer rejected this contention
and maintained the accuracy of the PSR's Guidelines calculation.
Nolte reiterated his objections in his sentencing memo
and at the June 29, 2015 sentencing hearing. The district court
rejected these objections at the sentencing hearing, and adopted
the base offense level of 12 recommended in the PSR. The district
court ruled that Nolte did "use" a passport when applying for the
replacement, and that the enhancement did apply because numerous
means of identification were used and the reliance on the prior
passport could be considered separately. The district court
sentenced Nolte to a total sentence of 36 months imprisonment:
12 months for Counts I and III, and 24 months for Count II. His
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sentence also included two years of supervised release and a $3,000
fine. This appeal ensued.
II. Discussion
A. Four-Level Enhancement Under U.S.S.G. § 2L2.2(b)(3)
Nolte contends that the district court's Guidelines
calculation was erroneous inasmuch as it applied the four-level
enhancement for the use of a United States passport pursuant to
U.S.S.G. § 2L2.2(b)(3)(A), even though Application Note 2 to
U.S.S.G. § 2B1.6 ("Application Note 2") prohibits application of
an enhancement for use of a "means of identification" when the
defendant is also convicted of aggravated identity theft. Nolte
argues that the imposition of the enhancement amounts to
impermissible double counting.
The government, in contrast, argues that the enhancement
is applicable because Application Note 2 prohibits the enhancement
only for the use of a "means of identification" and a passport is
not a "means of identification," but rather an "identification
document."
We review the sentencing court's factfinding for clear
error and its construction and application of the Guidelines
de novo. United States v. Souza, 749 F.3d 74, 85 (1st Cir. 2014)
(citing United States v. Ihenacho, 716 F.3d 266, 276 (1st Cir.
2013)). We use conventional methods of statutory construction
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both to determine the meaning the Sentencing Commission intended
to give to a Guidelines term, United States v. Damon, 595 F.3d
395, 400 (1st Cir. 2010), and to interpret the meaning of
Guidelines commentary, id. at 400 n.3 (citing United States v.
Almenas, 553 F.3d 27, 31-32 (1st Cir. 2009)).
Nolte's conviction on Count II for aggravated identity
theft had a violation of 18 U.S.C. § 1542 as an underlying offense.2
The guideline for 18 U.S.C. § 1028A is found in U.S.S.G. § 2B1.6,
which provides that the guideline sentence is the statutory two-
year term of imprisonment. U.S.S.G. § 2B1.6(a). Application Note
2 states that:
If a sentence under this guideline is imposed in
conjunction with a sentence for an 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 guideline
accounts for this factor for the underlying offense
2 Aggravated identity theft is an independent offense but is tied
to the commission of an underlying crime of fraud or deceit
enumerated in the statute. Specifically, 18 U.S.C. § 1028A
provides that "[w]hoever, during and in relation to any felony
violation enumerated in subsection (c), knowingly transfers,
possesses, or uses, without lawful authority, a means of
identification of another person shall, in addition to the
punishment provided for such felony, be sentenced to a term of
imprisonment of 2 years." 18 U.S.C. § 1028A(a)(1). In turn,
subsection (c) establishes that "the term 'felony violation
enumerated in subsection (c)' means any offense that is a felony
violation of . . . (7) any provision contained in chapter 75
(relating to passports and visas)," id. § 1028A(c), which includes
18 U.S.C. § 1542 (making false statements in a passport
application).
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of conviction, including any such enhancement that
would apply based on conduct for which the defendant
is accountable under § 1B1.3 (Relevant Conduct).
"Means of identification" has the meaning given that
term in 18 U.S.C. 1028(d)(7).
U.S.S.G. § 2B1.6 cmt. n.2 (emphasis added).
In turn, the guideline for an 18 U.S.C. § 1542 violation3
is found in U.S.S.G. § 2L2.2. It establishes a base offense level
of eight, U.S.S.G. § 2L2.2(a), and, in relation to specific offense
characteristics, provides for a four-level enhancement "[i]f the
defendant fraudulently obtained or used . . . a United States
passport." U.S.S.G. § 2L2.2(b)(3)(A).
Because the sentence under U.S.S.G. § 2B1.6 was imposed
in conjunction with a sentence for the underlying offense of
18 U.S.C. § 1542, we must ascertain the meaning of the term "means
of identification" in Application Note 2 in order to determine
3 18 U.S.C. § 1542 states, in relevant part,
Whoever willfully and knowingly makes any false
statement in an application for passport with intent
to induce or secure the issuance of a passport under
the authority of the United States, either for his
own use or the use of another, contrary to the laws
regulating the issuance of passports or the rules
prescribed pursuant to such laws . . . [s]hall be
fined under this title, imprisoned not more than . . .
10 years (in the case of the first or second such
offense, if the offense was not committed to
facilitate such an act of international terrorism or
a drug trafficking crime), or 15 years (in the case
of any other offense), or both.
18 U.S.C. § 1542.
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whether the four-level enhancement of U.S.S.G. § 2L2.2(b)(3)(A)
applies for the 18 U.S.C. § 1542 violation.
We start our inquiry by examining the plain text of the
guideline. See United States v. Brown, 500 F.3d 48, 59 (1st Cir.
2007) ("When interpreting a statute, we begin with its text.").
Because Application Note 2 states that "'[m]eans of
identification' has the meaning given that term in 18 U.S.C.
1028(d)(7)," we turn to that statute.
The statute defines "means of identification" as:
any name or number that may be used, alone or in
conjunction with any other information, to identify a
specific individual, including any--
(A) name, social security number, date of birth,
official State or government issued driver's license
or identification number, alien registration number,
government passport number, employer or taxpayer
identification number;
(B) unique biometric data, such as fingerprint, voice
print, retina or iris image, or other unique physical
representation;
(C) unique electronic identification number, address,
or routing code; or
(D) telecommunication identifying information or
access device (as defined in section 1029(e));
18 U.S.C. § 1028(d)(7).4
The statute separately defines "identification document"
as:
a document made or issued by or under the authority
of the United States Government, a State, political
4 The statute makes clear that this definition applies in "section
[1028] and section 1028A." 18 U.S.C. § 1028(d).
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subdivision of a State, a sponsoring entity of an
event designated as a special event of national
significance, a foreign government, political
subdivision of a foreign government, an international
governmental or an international quasi-governmental
organization which, when completed with information
concerning a particular individual, is of a type
intended or commonly accepted for the purpose of
identification of individuals.
Id. § 1028(d)(3).
Nolte contends that because a passport contains a means
of identification (a passport number), it also qualifies as a
"means of identification" and, thus, Application Note 2 precludes
application of the enhancement. In support of his proposition,
Nolte cites United States v. Zheng, 762 F.3d 605, 610-11 (7th Cir.
2014) (holding that a passport is both an "identification document"
and a "means of identification" under § 1028(d)(7) and,
accordingly, Application Note 2 precludes application of a two-
level enhancement under U.S.S.G. § 2L2.1(b)(5)(B) for defendant's
fraudulent use of a foreign passport). The government counters
that while a passport number is a "means of identification," a
passport itself is not. Rather, the government claims, it
constitutes an "identification document," a separately defined
term in the same statute and, accordingly, Application Note 2 does
not preclude the enhancement. See United States v. Dehaney,
455 F. App'x 781, 783 (9th Cir. 2011) (distinguishing between
"means of identification" and "identification documents" and
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holding that "[b]ecause a United States passport is not a 'means
of identification,' as defined in the statute," Application Note
2 does not apply (citing United States v. Melendrez, 389 F.3d 829,
833-34 (9th Cir. 2004))).5
We believe that the plain language supports the
government's argument. We note that 18 U.S.C. § 1028(d)
distinguishes between "means of identification" and
"identification documents." While it lists a passport number as
a means of identification, it does not list a passport itself.
And Application Note 2 prohibits applying the four-level
enhancement only for the use of a means of identification, not of
an identification document. See United States v. Sharapka,
526 F.3d 58, 62 (1st Cir. 2008) (limiting Application Note 2 to
its plain language and rejecting the defendant's argument that a
two-level enhancement for the possession of "device-making
equipment" resulted in impermissible double counting).
5 In Melendrez, the court cautioned against confusing the term
"means of identification" with "identification document."
389 F.3d at 833. It stated that "[a]n identification document is
'a document . . . intended or commonly accepted for the purpose of
identification," while "[a] means of identification, in contrast,
is the name or number that may often be associated with such a
document." Id. (citations omitted). Accordingly, "Social
Security cards . . . are identification documents, but the means
of identification are the Social Security numbers that [were]
placed on the documents." Id. at 833-34. Although Melendrez
dealt with Social Security cards and Social Security numbers,
instead of passports, the same reasoning applies.
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This distinction does not appear to be unintended or
inconsequential, as the statute explicitly contemplates when an
"identification document" will also be considered a "means of
identification." For instance, the statute specifically states
as a "[r]ule of construction" that "[f]or purposes of subsection
(a)(7), a single identification document or false identification
document that contains 1 or more means of identification shall be
construed to be 1 means of identification." 18 U.S.C. § 1028(i).
Because the statute specifically limited this rule of construction
to subsection (a)(7), we decline Nolte's invitation to further
expand its application to subsection (d).
This distinction is not nonsensical, as Nolte contends,
because fraudulently obtaining or using a United States passport
may give rise to additional or different harms than misusing only
a passport number. For instance, someone attempting to enter the
country illegally (including a terrorist) would not be able to get
into the country with just a passport number, but having the
passport itself would increase his or her chances of doing so.
Nolte complains that construing the Guidelines this way
would amount to double counting because the underlying offense
involved use of a passport. We note, however, that "with regard
to the guidelines generally, 'double counting is often perfectly
proper.'" United States v. Stella, 591 F.3d 23, 30 n.9 (1st Cir.
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2009) (quoting United States v. Lilly, 13 F.3d 15, 19 (1st Cir.
1994)). "Double counting in the sentencing context 'is a
phenomenon that is less sinister than the name implies.'" Lilly,
13 F.3d at 19 (quoting United States v. Zapata, 1 F.3d 46, 47
(1st Cir. 1993)). 6 "We believe the [Sentencing] Commission's
ready resort to explicitly stated prohibitions against double
counting [under certain circumstances of some guidelines] signals
that courts should go quite slowly in implying further such
prohibitions where none are written." Id. (citation omitted).
Accordingly, we decline Nolte's invitation to expand a prohibition
where it is not explicitly stated.7 Thus, we conclude that the
district court did not err in applying the four-level enhancement
in this case.8
B. Aggravated Identity Theft
Nolte also argues he cannot be guilty of aggravated
identity theft under 18 U.S.C. § 1028A(a)(1) because the word
6 In fact, the default rule is that the same conduct may determine
the base offense level and also trigger the cumulative application
of enhancements and adjustments unless a specific guideline
instructs otherwise. See U.S.S.G. § 1B1.1 cmt. n.4.
7 In light of the circuit split on this issue, the Sentencing
Commission could usefully address the situation in due course.
8 Because we are able to grasp the meaning of the term "means of
identification" from the text of the statute, and it provides the
answer to the Guidelines construction, "our 'inquiry ends.'"
United States v. Lyons, 740 F.3d 702, 716 (1st Cir. 2014) (quoting
United States v. Roberson, 459 F.3d 39, 51 (1st Cir. 2006)).
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"person" in the statutory phrase "means of identification of
another person" refers only to a living person. He contends that
because the means of identification he used referred to George
France, a deceased, the evidence was insufficient to convict him.
Nolte acknowledges, however, that his argument is foreclosed by
our decision in United States v. Jiménez, 507 F.3d 13 (1st Cir.
2007), and he does not argue any exception to the rule of stare
decisis, but rather raises his argument in order to preserve it
for potential further appellate review. We need not tarry on this
issue.
In Jiménez, this Court considered and rejected the
essence of Nolte's arguments. There, after examining the
statutory text, the surrounding language, and the statute's
structure and purpose, we concluded that the term "person" refers
to persons both living and dead. Id. at 22.9 As a panel, "we are
bound to follow this circuit's currently controlling precedent."
United States v. McPhail, 831 F.3d 1, 10 (1st Cir. 2016) (quoting
United States v. Parigian, 824 F.3d 5, 16 (1st Cir. 2016)). That
9 Other circuits have also concluded that § 1028A covers the use
of the identity of both living and deceased persons. See United
States v. Zuniga-Arteaga, 681 F.3d 1220, 1225 (11th Cir. 2012);
United States v. LaFaive, 618 F.3d 613, 616-17 (7th Cir. 2010);
United States v. Maciel-Alcala, 612 F.3d 1092, 1094 (9th Cir.
2010); United States v. Kowal, 527 F.3d 741, 746-47 (8th Cir 2008).
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precedent requires that we reject Nolte's challenge and affirm his
conviction for aggravated identity theft.
III. Conclusion
For the reasons elucidated above, we conclude that the
district court did not err in applying the four-level enhancement
pursuant to U.S.S.G. § 2L2.2(b)(3)(A). In addition, Nolte's
challenge to his conviction of aggravated identity theft under 18
U.S.C. § 1028A(a)(1) fails as the term "person" within the statute
covers both living and deceased persons. Thus, his sentence is
affirmed.
AFFIRMED.
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