[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 13, 2006
No. 05-15154 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00236-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNIE NORWOOD,
a.k.a. Connie Norwood,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 13 2006)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Johnnie Norwood appeals his 27-month sentence for: (1) conspiracy to
defraud the Social Security Administration (SSA),
42 U.S.C. § 371; (2) mail fraud,
18 U.S.C. § 1341; (3) wire fraud,
18 U.S.C. § 1343; and (4) making false
statements,
42 U.S.C. § 408(a)(3). He contends that the district court clearly erred
in applying a two-level enhancement for the “unauthorized transfer or use of any
means of identification,” pursuant to United States Sentencing Guidelines §
2F1.1(b)(5)(C)(i) (Nov. 1, 2000). Norwood argues that his conduct in opening
bank accounts in the names of his deceased mother and uncle to receive their
Social Security disability benefits does not fit within the enhancement because he
did not harm them or their credit histories.
We review the district court’s findings of fact for clear error and its
application of the Sentencing Guidelines to those facts de novo. See United States
v. Crawford,
407 F.3d 1174, 1177–78 (11th Cir. 2005). Pursuant to U.S.S.G.
§ 2F1.1(b)(5)(C)(i) of the 2000 Guidelines Manual, the “identity theft”
enhancement, a defendant’s base offense level is increased by two levels if the
offense involved “the unauthorized transfer or use of any means of identification
unlawfully to produce or obtain any other means of identification.”1 The
application notes state that “means of identification” has the meaning given that
1
“We apply the version of the Sentencing Guidelines and commentary in effect on the date
of sentencing, unless a more lenient punishment would result under the Guidelines version in effect
on the date the offense was committed.” United States v. Simon,
168 F.3d 1271, 1272 n. 1 (11th
Cir. 1999).
2
term in
18 U.S.C. § 1028(d): “any name or number that may be used, alone or in
conjunction with any other information, to identify a specific individual, including
any . . . social security number, . . . driver’s license or identification number.” See
U.S.S.G. § 2F1.1, cmt. n.15;
18 U.S.C. § 1028(d)(7).2 The application notes
include the following example, among others, for when this enhancement applies:
“A defendant obtains an individual’s name and social security number from a
source . . . and obtains a bank loan in that individual’s name. In this example, the
account number of the bank loan is the other means of identification that has been
obtained unlawfully.” U.S.S.G. § 2F1.1, cmt. n.16(A).
The district court did not err in imposing an identity theft enhancement
pursuant to U.S.S.G. § 2F1.1(b)(5)(C)(i). At sentencing, Special Agent Shondell
Douglas of the SSA testified that in 2000, the SSA was directed to deposit the
benefit checks of Norwood’s deceased mother and uncle into bank accounts in
their names. Norwood admitted that he used his relatives’ names to open the bank
accounts. Though Norwood had a joint account with his uncle at the time of his
death, Norwood closed the account in 1979. The names of his mother and uncle
were the means of identification. Norwood used those means to produce another
means of identification: the bank account numbers. Accordingly, the identity theft
2
The 2000 Guidelines Manual directs readers to
18 U.S.C. § 1028(d)(3), however the
“means of identification” definition is now located at § 1028(d)(7).
3
enhancement applies. See U.S.S.G. § 2F1.1(b)(5)(C)(i). Norwood’s contention
that his mother and uncle suffered no injury, financial or otherwise, as a result of
the identity theft is without merit because nothing in the guideline or application
notes suggests that a lack of injury should bar the application of the enhancement.
AFFIRMED.
4
