United States v. Anthony Smith , 401 F. App'x 671 ( 2010 )


Menu:
  •                                                                  NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 10-1512
    ____________
    UNITED STATES OF AMERICA
    v.
    ANTHONY SMITH,
    Appellant
    ____________
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA
    (D.C. Crim. No. 2-09-cr-00293-001)
    District Judge: Honorable Mitchell S. Goldberg
    ____________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    November 16, 2010
    Before: AMBRO, FISHER and WEIS, Circuit Judges.
    (Filed: November 29, 2010)
    ____________
    OPINION
    ____________
    WEIS, Circuit Judge.
    Defendant used false identification to fraudulently gain access to money
    from five separate accounts at various banks and to open a credit account with an
    1
    electronics store, which he used to secure substantial quantities of goods. He pleaded
    guilty to four counts of bank fraud and aiding and abetting, in violation of 
    18 U.S.C. §§ 1344
     and 2; one count of access device fraud, a violation of 
    18 U.S.C. § 1029
    (a); five
    counts of aggravated identity theft and aiding and abetting, in violation of 18 U.S.C. §§
    1028A and 2; and one count of conspiracy, a violation of 
    18 U.S.C. § 371
    .
    The District Court imposed a sentence of 21 months on all counts except
    those for aggravated identity theft; 48 months were added for the identity theft offenses.
    Defendant appeals only his sentence, contending that the total 69-month
    term of imprisonment was unreasonable and, particularly, that the District Court erred by
    imposing consecutive 24-month sentences for two of the five § 1028A violations. We
    will affirm.
    Sentences for aggravated identity theft are governed by a mandatory
    minimum regimen under 18 U.S.C. § 1028A. Specifically, a person convicted of
    improperly using a means of identification of another person “in relation to” certain
    enumerated felonies,1 including bank fraud, “shall, in addition to the punishment provided
    1 These felony violations include theft of public property, money or rewards; theft,
    embezzlement or misapplication by a bank officer or employee; theft from
    employee benefit plans; false personation of citizenship; mail, bank and wire fraud;
    violations of the Immigration and Nationality Act; and similar offenses. 18 U.S.C.
    §1028A(c).
    2
    for such [listed] felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. §
    1028A(a)(1).
    To forestall a term of incarceration that might be excessive in a particular
    case, the statute grants the court discretion to determine whether, after the first sentence
    imposed under § 1028A (which must be consecutive to the enumerated felony), any
    remaining violations shall run concurrently or consecutively.
    “[A] term of imprisonment imposed on a person for a
    violation of this section may, in the discretion of the court,
    run concurrently, in whole or in part, only with another term
    of imprisonment that is imposed by the court at the same time
    on that person for an additional violation of this section,
    provided that such discretion shall be exercised in accordance
    with any applicable guidelines and policy statements . . . .”
    18 U.S.C. § 1028A(b)(4).
    Thus, after imposing one mandatory two-year consecutive period of
    incarceration, the district court must decide whether the sentences for additional
    violations of § 1028A are to run consecutively or concurrently. In exercising its
    discretion, the court should consider “applicable guidelines and policy statements issued
    by the Sentencing Commission” and make a record of the factors considered. See
    U.S.S.G. § 5G1.2 cmt. 2(B); United States v. Lee, 
    545 F.3d 678
    , 681 (8th Cir. 2008).
    We have closely reviewed the comments of the district judge at the
    sentencing hearing. The Court found that, although the defendant’s mental health
    problems were real and significant, the crime was serious, the risk of recidivism was
    3
    substantial, and the needs for deterrence and protection of the public were great.
    Accordingly, the district judge imposed a sentence of 21 months (at the low end of the
    Guideline range) for the conspiracy, bank fraud, and access device fraud charges. In
    addition, he ordered that two of the five sentences under § 1028A would run concurrently.
    Because the District Court reviewed the pertinent factors in reaching the
    latter decision and made an appropriate record of its findings, we are persuaded that the
    Court properly exercised its discretion. See Lee, 
    545 F.3d at 681
    . Furthermore, finding
    no error in the record, we defer to “the district court’s determination that the [18 U.S.C.]
    § 3553(a) factors, on a whole, justify the sentence.” United States v. Tomko, 
    562 F.3d 558
    , 568 (3d Cir. 2009) (en banc) (internal quotations omitted).
    In addition to the term of imprisonment, the Court also directed supervised
    release and restitution. Defendant does not challenge these provisions, and we need not
    comment on them.
    Accordingly, the judgment will be affirmed.
    4
    

Document Info

Docket Number: 10-1512

Citation Numbers: 401 F. App'x 671

Judges: Ambro, Fisher, Weis

Filed Date: 11/29/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024