United States v. Bernard Boston ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-2716
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United States of America
llPlaintiff - Appellee
v.
Bernard Laverne Boston
llDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: May 14, 2018
Filed: July 20, 2018
[Unpublished]
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Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
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PER CURIAM.
Bernard Laverne Boston (“Boston”) appeals from the district court’s1 judgment
sentencing him to thirty months of imprisonment, arguing the district court errantly
applied an identity theft Guidelines enhancement.
I. Background
The investigation uncovering Boston’s crime began when a homeless man in
Iowa met with a law enforcement officer after unsuccessfully trying to cash a
suspicious check made out to him from a local business.2 The homeless man told the
officer he had been instructed to cash the check by four individuals. After the
meeting, he arranged to obtain and cash another check so law enforcement officers
could monitor the meeting. The homeless man then met two individuals, including
Boston, in a Dodge Caravan at a gas station parking lot.
Boston and the rest of the group, joined by a second homeless man, picked up
several papers from the driver of a Chrysler Town and Country. Officers observed the
second homeless man attempt to enter First State Bank and, upon arresting him, found
he possessed a check from Consolidated Vending Co. The officers then stopped both
Boston’s Dodge Caravan and the Chrysler Town and Country.
A search of the vehicles revealed a typewriter and several complete and partial
stolen business checks. One of the partial checks, which listed Consolidated Vending
Co. as the account holder, contained the same account and routing numbers as the
1
The Honorable Rebecca Goodgame Ebinger, United States District Court for
the Southern District of Iowa.
2
This case deals with an organized nationwide scheme involving criminal
groups that manipulate homeless people into cashing counterfeit checks. United
States v. Weaver, 866 F.3d 882, 883 (8th Cir. 2017). The counterfeit checks are
usually manufactured using stolen business checks, a printing device, and the personal
information of homeless individuals.
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check found in the second homeless man’s possession. Several of the checks in
Boston’s vehicle were also made out to the second homeless man. The modus
operandi of Boston and his co-defendants was to use the account numbers, routing
numbers, and account holder information from stolen business checks to create
counterfeit checks. They then recruited homeless persons to cash the checks, after
substituting the names of these individuals in place of the former payees.
II. The Sentencing
A grand jury indicted Boston and four co-defendants, charging them with
Conspiracy, in violation of 18 U.S.C. §§ 371, 1029 (a)(6), and Theft and Receipt of
Stolen Mail, in violation of 18 U.S.C. § 1708. Boston pled guilty to the Theft and
Receipt of Stolen Mail charge and, in exchange, the government agreed to dismiss the
Conspiracy charge. In the plea agreement, Boston admitted to possessing stolen
checks from four businesses including Consolidated Vending Co.
At the sentencing hearing, the district court applied a two-level identity theft
“means-of-identification” enhancement to Boston’s total offense level pursuant to the
U.S. Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”)
§ 2B1.1(b)(11)(C)(i). The district court concluded, over Boston’s objections, that this
case is controlled by United States v. Norwood, 774 F.3d 476 (8th Cir. 2014), where
this Court held the means-of-identification enhancement applied when existing bank
account and routing information was copied onto counterfeit checks in a similar
scheme. After applying the enhancement, the district court calculated a sentence
range of 30-37 months and sentenced Boston to 30 months of incarceration. Boston
appeals, arguing that Norwood is distinguishable and that the district court improperly
applied the sentencing enhancement.
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III. Standard of Review
We review the district court’s application of the Guidelines and imposition of
sentencing enhancements de novo. United States v. Scott, 448 F.3d 1040, 1043 (8th
Cir. 2006) (citing United States v. Noe, 411 F.3d 878, 888 (8th Cir. 2005)). We
review factual findings for clear error. United States v. Finck, 407 F.3d 908, 913 (8th
Cir. 2005) (citing United States v. Hart, 324 F.3d 575, 579 (8th Cir. 2003)).
IV. Discussion
Section 2B1.1(b)(11)(C)(i) of the Guidelines applies to “the unauthorized
transfer or use of any means of identification unlawfully to produce or obtain any
other means of identification.” The term “means of identification” refers to “any
name or number that may be used, alone or in conjunction with any other information,
to identify a specific individual.” See U.S.S.G. § 2B1.1, cmt. n.1 (incorporating the
definition from 18 U.S.C. 1028(d)(7)). The means of identification “shall be of an
actual (i.e. not fictitious) individual, other than the defendant or a person for whose
conduct the defendant is accountable under U.S.S.G. § 1B1.3.” Id. The term
“produce” includes “manufacture, design, alter, authenticate, duplicate, or assemble.”
U.S.S.G. § 2B1.1, cmt. n.10(C)(iii). This enhancement “was originally designed to
combat the harm ‘which results from using someone’s identifying information to
establish new credit.’” Norwood, 774 F.3d at 480 (quoting United States v. Williams,
355 F.3d 893, 900 (6th Cir. 2003)).
We disagree with Boston’s contention that his case is distinguishable from
Norwood in any relevant manner. In Norwood, a case involving the same general
scheme, we upheld a means-of-identification enhancement where bank account and
routing numbers of businesses and their banks, respectively, were copied onto
counterfeit checks. 774 F.3d at 482. We concluded that “produce” “include[s]
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duplicating a means of identification such as a bank account number and transferring
it onto a new medium, such as a counterfeit check.” Id. See also United States v.
Alexander, 725 F.3d 1117, 1119-20 (9th Cir. 2013) (finding that a counterfeit check
with an individual’s name, bank account number, and bank routing number is a means
of identification). We adopted the Third Circuit’s analysis in United States v.
Newsome, 439 F.3d 181 (3d Cir. 2006), which stated “[t]he phrase ‘any other means
of identification’ . . . does not mean ‘different’ as [the defendant] would read it.
Rather, it is a broader phrase meaning ‘additional’ as evinced by the Commentary’s
definition of ‘produce’ as including ‘manufacture, design, alter, authenticate,
duplicate, or assemble.” Norwood, 774 F.3d at 481 (quoting Newsome, 439 F.3d at
185) (emphasis in original) (quoting U.S.S.G. § 2B1.1, cmt. n.9(A)(2006) (current
version at U.S.S.G. § 2B1.1, cmt. n.10(A)(2016)). This Court reaffirmed the holding
in Norwood in a recent case dealing with the same scheme. See United States v.
Weaver, 866 F.3d 882, 884 (8th Cir. 2017).
The actions of Boston and his co-defendants fit squarely within the language
of Norwood because they transferred the real bank account and routing numbers
(means of identification) of real companies, such as Consolidated Vending Co., onto
counterfeit checks (a new medium). Thus, Boston’s argument that he did not produce
any other means of identification is foreclosed by our holding in Norwood that “any
other means of identification” includes not only different, but also additional
duplications of the same information. 774 F.3d at 481.
We also reject Boston’s argument that the enhancement only applies when the
defendant uses a means of identification to create a new identification “so that the
defendant can hold him or herself out to be the other person” and that his conduct is
“more akin” to forging a signature on a stolen check. Since Boston did not hold
himself out as any of the stolen account holders, he argues the enhancement should
not apply. First, we note the plain language of the Guidelines does not detail any such
requirement. See U.S.S.G. § 2B1.1(b)(11)(C)(i). Boston simply infers the
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requirement based on his reading of the four examples provided in the commentary
section of the Guidelines regarding when the enhancement applies. We disagree with
his reading of the examples because we do not believe the purpose of these examples
is to limit the application of the enhancement in the way Boston contends. Rather,
they provide two examples of what constitutes producing a new means of
identification (using a means of identification to obtain a bank loan or a credit card in
that person’s name) and two examples of what does not (using a stolen credit card or
forging another person’s signature on a stolen check). U.S.S.G. § 2B1.1, cmt.
n.10(C)(ii)-(iii). These examples clarify that a means of identification must be used
to produce a new means of identification in order for the enhancement to apply.
Nothing in those examples indicates an intent to create some new requirement for the
enhancement not present in the Guideline. Norwood defined the relevant terms in the
Guideline and the district court followed those definitions. It properly rejected
Boston’s attempt to add a new requirement to the Guideline. We affirm.
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