United States v. Miguel Osuna-Alvarez , 788 F.3d 1183 ( 2015 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                No. 13-50636
    Plaintiff-Appellee,
    D.C. No.
    v.                   3:12-cr-04477-LAB-1
    MIGUEL OSUNA-ALVAREZ,
    Defendant-Appellant.             OPINION
    Appeal from the United States District Court
    for the Southern District of California
    Larry A. Burns, District Judge, Presiding
    Argued and Submitted
    May 6, 2015—Pasadena, California
    Filed June 10, 2015
    Before: John T. Noonan, Kim McLane Wardlaw,
    and Mary H. Murguia, Circuit Judges.
    Per Curiam Opinion
    2            UNITED STATES V. OSUNA-ALVAREZ
    SUMMARY*
    Criminal Law
    The panel affirmed a conviction for aggravated identity
    theft, in violation of 18 U.S.C. § 1028A, in a case in which
    the defendant contended that because he had permission to
    use his twin brother’s passport, he did not use the passport
    “without lawful authority,” as required by the statute.
    The panel rejected that contention and held that § 1028A
    does not require theft as an element of the offense. The panel
    held that regardless of whether the means of identification
    was stolen or obtained with the knowledge and consent of its
    owner, the illegal use of the means of identification alone
    violates § 1028.
    COUNSEL
    Richard Dale Rome (argued), Law Offices of Richard D.
    Rome, Van Nuys, California, for Defendant-Appellant.
    Laura E. Duffy, United States Attorney; Bruce R. Castetter,
    Chief, Appellate Section, Criminal Division; Randy K. Jones
    (argued), Peter Ko, and Lara Stingley, Assistant United States
    Attorneys, San Diego, California, for Plaintiff-Appellee.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. OSUNA-ALVAREZ                   3
    OPINION
    PER CURIAM:
    In this opinion, we resolve Miguel Osuna-Alvarez’s
    challenge to his conviction for aggravated identity theft, in
    violation of 18 U.S.C. § 1028A. Osuna-Alvarez (“Osuna”)
    contends that because he had permission to use his twin
    brother’s passport, he therefore did not use the passport
    “without lawful authority,” as required by the statute. See
    18 U.S.C. § 1028A. As set forth below, we reject this
    argument. The remaining issues in this appeal are resolved
    in a contemporaneously filed memorandum disposition.
    I.
    On October 13, 2012, Osuna was arrested while
    attempting to enter the United States from Mexico at the Otay
    Mesa, California Port of Entry. Osuna was the driver and
    sole occupant of his vehicle. At the border crossing, a canine
    alerted to the vehicle’s dashboard. When questioned, Osuna
    claimed he was headed for San Ysidro and denied having
    anything to declare. He presented a United States passport in
    the name of “Hector Alejandro Osuna-Alvarez.”
    Following inspection, Customs and Border Protection
    discovered ten packages containing over three kilograms of
    methamphetamine and two packages containing over two
    kilograms of cocaine, hidden inside the vehicle’s air-
    conditioning unit. Osuna was arrested and advised of his
    Miranda rights.
    During a post-arrest interview, Osuna again identified
    himself as Hector Osuna, a United States citizen. When an
    4           UNITED STATES V. OSUNA-ALVAREZ
    agent informed Osuna that his fingerprint search revealed that
    his claimed identification was false, Osuna admitted that his
    name was actually Miguel Osuna, that he was a Mexican
    citizen, and that he was using his twin brother Hector’s name
    and passport to enter the United States.
    Later that month, Osuna was charged by indictment with
    aggravated identity theft, in violation of 18 U.S.C. § 1028A,
    among other charges not at issue in this opinion. Osuna
    proceeded to a bench trial. At trial, Osuna’s twin brother
    Hector testified that he had lost his passport several months
    earlier, and denied knowing how the passport came into
    Osuna’s possession. Hector expressly denied giving Osuna
    permission to use his passport. However, the court deemed
    Hector’s testimony not credible, and found that Hector was
    “complicit in turning over the passport” to Osuna.
    Following trial, the district court found Osuna guilty.
    II.
    Osuna argues that he should not have been convicted of
    violating 18 U.S.C. § 1028A as a matter of law because he
    did not steal his twin brother’s passport and therefore did not
    use the passport “without lawful authority.” 18 U.S.C.
    § 1028A. This is a question of statutory interpretation, which
    we review de novo. See United States v. Thompson, 
    728 F.3d 1011
    , 1015 (9th Cir. 2013).
    III.
    Section 1028A, “Aggravated Identity Theft,” provides, in
    relevant part:
    UNITED STATES V. OSUNA-ALVAREZ                  5
    Whoever, 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) (emphasis added). Osuna argues
    that the phrase “without lawful authority” excludes cases
    where, as here, the fact finder determined that the defendant
    used another person’s means of identification with the other
    person’s consent or permission. Osuna specifically contends,
    and the district court agreed, that Osuna had permission to
    use his brother’s passport and, therefore, no violation
    occurred. Thus, Osuna urges the court to construe literally
    the section’s title, “Aggravated Identity Theft,” so as to
    require actual theft or misappropriation of the means of
    identification. Our sister circuits have universally rejected
    this argument. See United States v. Reynolds, 
    710 F.3d 434
    (D.C. Cir. 2013); United States v. Lumbard, 
    706 F.3d 716
    (6th Cir. 2013); United States v. Spears, 
    697 F.3d 592
     (7th
    Cir. 2012), vacated, 
    729 F.3d 753
     (7th Cir. 2013) (en banc);
    United States v. Ozuna-Cabrera, 
    663 F.3d 496
     (1st Cir.
    2011); United States v. Retana, 
    641 F.3d 272
     (8th Cir. 2011);
    United States v. Abdelshafi, 
    592 F.3d 602
     (4th Cir. 2010);
    United States v. Carrion-Brito, 362 F. App’x 267 (3d Cir.
    2010); United States v. Hurtado, 
    508 F.3d 603
     (11th Cir.
    2007), abrogated in part on other grounds by Flores-
    Figueroa v. United States, 
    556 U.S. 646
     (2009); United States
    v. Hines, 
    472 F.3d 1038
     (8th Cir. 2007). We agree with this
    authority and now hold that, despite its title, § 1028A does
    not require theft as an element of the offense.
    6           UNITED STATES V. OSUNA-ALVAREZ
    “[O]ur inquiry begins with the statutory text, and ends
    there as well if the text is unambiguous.” Satterfield v. Simon
    & Schuster, Inc., 
    569 F.3d 946
    , 951 (9th Cir. 2009) (quoting
    McDonald v. Sun Oil Co., 
    548 F.3d 774
    , 780 (9th Cir. 2008)).
    By its terms, § 1028A explicitly covers a defendant who
    “uses” a means of identification “without lawful authority.”
    18 U.S.C. § 1028A(a)(1). This language clearly and
    unambiguously encompasses situations like the present,
    where an individual grants the defendant permission to
    possess his or her means of identification, but the defendant
    then proceeds to use the identification unlawfully. See
    Reynolds, 710 F.3d at 436. Black’s Law Dictionary defines
    “lawful” as “[n]ot contrary to law,” and defines “authority”
    as “[t]he right or permission to act legally on another’s
    behalf.” Black’s Law Dictionary 152 & 965 (9th ed. 2009);
    see also Lumbard, 706 F.3d at 723; Ozuna-Cabrera, 
    663 F.3d at 499
    . “Combining these definitions, § 1028A(a)(1)
    reasonably proscribes the transfer, possession, or use of
    another person’s means of identification, absent the right or
    permission to act on that person’s behalf in a way that is not
    contrary to the law.” Ozuna-Cabrera, 
    663 F.3d at 499
    . Thus,
    regardless of whether the means of identification was stolen
    or obtained with the knowledge and consent of its owner, the
    illegal use of the means of identification alone violates
    § 1028A. Although the district court found that Hector was
    complicit in Osuna’s use of the passport, Osuna nonetheless
    made “use” of the passport to falsely identify himself as a
    United States citizen—hence, he used the passport “without
    lawful authority.” See, e.g., Reynolds, 710 F.3d at 436;
    Ozuna-Cabrera, 
    663 F.3d at 499
    .
    Because we conclude that the statutory text is
    unambiguous, consistent with the majority of our sister
    circuits, we reject Osuna’s argument that § 1028A requires
    UNITED STATES V. OSUNA-ALVAREZ                  7
    evidence that the defendant stole the means of identification
    at issue.
    AFFIRMED.