United States v. Lewis , 443 F. App'x 493 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15563 OCTOBER 19, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 4:10-cr-00052-RH-WCS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
SHANNA MICHELLE LEWIS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(October 19, 2011)
Before EDMONDSON, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Shanna Michelle Lewis was charged in an indictment with: (i) ten counts of
bank fraud, in violation of 18 U.S.C. § 1344(2); (ii) nine counts of making,
uttering, or possessing a forged security of an organization, in violation of 18
U.S.C. § 513(a); and (iii) one count of aggravated identity theft, in violation of 18
U.S.C. § 1028A. Lewis filed a motion to dismiss the aggravated identity theft
count, which the district court denied. Lewis then signed a plea agreement,
entering a guilty plea to one count of bank fraud and one count of making, uttering
or possessing a forged security of an organization, and entering a conditional plea
to the aggravated identity theft count, whereby she reserved the right to appeal the
denial of her motion to dismiss. The district court sentenced her to a total of 102
months’ incarceration. She appeals her aggravated identity theft conviction and
all of her sentences. Upon careful review of the record and the parties’ briefs, we
affirm.
I. BACKGROUND
Lewis signed a “Statement of Facts” establishing the following. From 2001
to 2010, she worked as a bookkeeper and office manager for the Leon County
Research and Development Authority (LCRDA). During that time, she embezzled
$647,542.83 from LCRDA by forging LCRDA checks made payable to herself
and depositing them into her personal bank account. She endorsed the checks
using the signature stamp of LCRDA chairman Thomas Barron, without Barron’s
knowledge or consent.
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After she entered her guilty plea but before she was sentenced, Lewis filed a
petition for bankruptcy. In her bankruptcy petition, she failed to disclose that she
had previously filed for bankruptcy several years earlier and failed to disclose
certain property when listing her assets. At sentencing, the district court
calculated a guidelines range of 70-87 months for the bank fraud and forged
security counts, refusing to apply a two level reduction for acceptance of
responsibility due to the false statements Lewis made in her bankruptcy petition.
The district court then sentenced Lewis to 78 months’ imprisonment for the bank
fraud and forged security counts, and imposed the mandatory consecutive sentence
of 24 months’ imprisonment for the aggravated identity theft count.
II. DISCUSSION
A. Aggravated Identity Theft
The aggravated identity theft statute prohibits the knowing transfer,
possession, or use, without lawful authority, of “a means of identification of
another person,” in relation to a violation of 18 U.S.C. § 1344, the bank fraud
statute. 18 U.S.C. § 1028A(a)(1), (c)(5). “Means of identification” is defined as:
any name or number that may be used, alone or in conjunction with
any other information, to identify a specific individual, including
any—
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(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 [18 U.S.C. § 1029(e)]).
18 U.S.C. § 1028(d)(7). “Access device,” as used in § 1028, is defined as:
any card, plate, code, account number, electronic serial number,
mobile identification number, personal identification number, or
other telecommunications service, equipment, or instrument
identifier, or other means of account access that can be used, alone
or in conjunction with another access device, to obtain money,
goods, services, or any other thing of value, or that can be used to
initiate a transfer of funds (other than a transfer originated solely by
paper instrument).
18 U.S.C. § 1029(e)(1).
Lewis argues that the district court erred when it denied her motion to
dismiss the aggravated identity theft charge on the ground that the conduct with
which she was charged and to which she admitted—embezzling money from her
employer by creating and passing forged checks—does not constitute aggravated
identity theft. She contends that, because the statutory definition of “access
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device” excludes “transfer[s] originated solely by paper instrument,” the conduct
of falsifying a signature on a stolen check and cashing the check does not
constitute the knowing transfer, possession, or use, without lawful authority, of “a
means of identification of another person.”1
The flaw in Lewis’s argument is that an “access device” is only one of
several items that Congress listed, in the disjunctive, as a “means of
identification.” 18 U.S.C. § 1028(d)(7). Thus, simply failing to satisfy the
definition of “access device” does not end the analysis with respect to whether a
signature on a stolen check is a “means of identification.” Any name that may be
used to identify a specific individual, including the individual’s “name,” will
satisfy the definition of “means of identification,” even if it does not satisfy the
definition of “access device.” Id. As the signature of an individual’s name
specifically identifies that individual, we conclude that forging another’s signature
constitutes the use of a “means of identification.” Accord United States v. Blixt,
548 F.3d 882, 888 (9th Cir. 2008) (“[F]orging another’s signature constitutes the
use of that person’s name for the purpose of applying the Aggravated Identity
1
We review de novo the legal question of whether an indictment sufficiently alleges a
statutorily proscribed offense. United States v. Woodruff, 296 F.3d 1041, 1045 (11th Cir. 2002).
We review de novo questions of statutory interpretation. United States v. Segarra, 582 F.3d
1269, 1271 (11th Cir. 2009).
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Theft statute.”). Here, the indictment explicitly charged Lewis with using “the
name and signature of T.B.”—and not an “access device”—as a “means of
identification.” Accordingly, the district court properly denied Lewis’s motion to
dismiss the aggravated identity theft count.
B. Acceptance of Responsibility
Section 3E1.1 of the Sentencing Guidelines provides for a two-level
reduction in the offense level of a defendant who clearly demonstrates acceptance
of responsibility for her offense, with an additional one-level reduction possible if
the government so moves. U.S.S.G. § 3E1.1. A district court’s assessment of a
defendant’s acceptance of responsibility under U.S.S.G. § 3E1.1 is entitled to great
deference, and we review it for clear error. United States v. Moriarty, 429 F.3d
1012, 1022 (11th Cir. 2005). Thus, a district court’s determination that a
defendant is not entitled to a § 3E1.1 adjustment will not be set aside unless the
facts in the record clearly establish that the defendant has accepted responsibility.
Id. at 1022-23.
“The defendant bears the burden of clearly demonstrating acceptance of
responsibility and must present more than just a guilty plea.” United States v.
Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999);; see U.S.S.G. § 3E1.1 cmt. n.3.
“Although a guilty plea may be significant evidence of acceptance of
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responsibility, it may be outweighed by other conduct inconsistent with an
acceptance of responsibility.” Moriarty, 429 F.3d at 1023; see U.S.S.G. § 3E1.1
cmt. n.3. A district court may consider the defendant’s subsequent conduct in
deciding whether to apply a reduction pursuant to § 3E1.1. See United States v.
Pace, 17 F.3d 341, 343 (11th Cir. 1994).
As it is undisputed that, after pleading guilty, Lewis signed a false petition
and submitted false schedules under the penalty of perjury in the bankruptcy
proceedings, the district court was entitled to conclude that Lewis’s subsequent
conduct negated or outweighed her attempts to accept responsibility by voluntarily
turning over assets and pleading guilty. Accordingly, we cannot say that the court
clearly erred in concluding that Lewis did not meet her burden of demonstrating
acceptance of responsibility.
AFFIRMED.
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