United States v. Roberto Popa , 361 F. App'x 854 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA No. 08-10129
Plaintiff - Appellee, D.C. No. 2:06-CR-0085-JCM-
GWF
v.
ROBERTO POPA, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted October 7, 2009
San Francisco, California
Before: HUG, PAEZ, Circuit Judges, and RESTANI, ** Judge.
Roberto Popa appeals his jury conviction and sentence for Conspiracy to
Effect Fraudulent Transactions with Unauthorized Access Devices & Access
Devices issued to Other Persons (18 U.S.C. § 1029(b)(2)); Traffic in and Use of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jane A. Restani, Chief Judge, U.S. Court of
International Trade, sitting by designation.
Unauthorized Access Devices (18 U.S.C. § 1029(a)(2) and (b)(1)); Fraudulent
Transactions with Access Devices Issued to Other Persons (18 U.S.C. § 1029(a)(5)
and (b)(1)); Aggravated Identity Theft (18 U.S.C. § 1028A(a)(1)); False Statement
(18 U.S.C. § 1001); and Unlawfully Procurement of Citizenship (18 U.S.C. §
1425(a)). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I. Aggravated Identity Theft
Popa contends that his 24-month sentence enhancement on counts 11 and 13
must be vacated because the drivers’ licenses and credit cards Popa used for his
predicate crimes do not qualify as “the means of another” under 18 U.S.C.
§ 1028A(a)(1). We review the district court’s statutory interpretation de novo.
Ariz. Bd. for Charter Sch. v. U.S. Dep’t of Educ., 464 F.3d 1003, 1006 (9th Cir.
2006).
Under 18 U.S.C. § 1028A(a)(1), “[w]hoever, 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.” Subsection (c) covers Popa’s underlying offenses under
18 U.S.C. § 1029. “[T]he term ‘means of identification’ means any name or
number that may be used, alone or in conjunction with any other information, to
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identify a specific individual, including any . . . access device (as defined in section
1029(e)) . . . .” 18 U.S.C. § 1028(d)(7)(D).
Popa admits that the falsified drivers’ licenses that he used included the
actual names of specific, identifiable individuals, but alleges that because all the
other information on the licenses was either fictitious or that of Popa himself, he
did not use the “means of identification” of another person. Ninth Circuit law does
not support this contention. “[S]o long as the information taken as a whole
identifies a specific individual,” the statutory definition of “means of identification
of another person” is met. United States v. Blixt, 548 F.3d 882, 887-88 (9th Cir.
2008) (concluding that a forged signature constitutes a means of identification); see
also United States v. Melendrez, 389 F.3d 829, 832-34 (9th Cir. 2004) (interpreting
a sentencing guideline implementing the Identity Theft Act and holding that real
Social Security numbers used alone or in conjunction with other information
constitute a means of identification because they can be used to uniquely identify
specific persons). Popa was found guilty of having used both falsified drivers’
licenses and actual, stolen credit cards. Because both the names on the drivers’
licenses and the credit cards used were real and uniquely identified the victims of
Popa’s identity theft crimes, the district court properly concluded that these
documents were the means of identification of another person.
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Popa further contends that for the sentence enhancement provisions to apply,
he must have used other documents than the ones forming the basis of the predicate
offenses. This argument also does not find support in the law. The use of either
the drivers’ licenses or the credit cards was in itself sufficient to support a
conviction under section 1028A. See Melendrez, 389 F.3d at 834 (dismissing the
notion that “a single means of identification is not sufficient.”) The aggravated
theft provisions were thus correctly applied here.
II. Same Jury Used for Immigration Counts and for Underlying Crimes
For the first time on appeal, Popa contends that it was plain error for the
district court to try Popa’s immigration counts in front of the same jury that had
just heard the conspiracy, fraud, and aggravated identify theft counts.
A district court has broad discretion to determine whether to try different
phases of a trial to different juries. United States v. Matus-Leva, 311 F.3d 1214,
1217 (9th Cir. 2002). When a defendant fails to raise an argument in the district
court, we will not reverse the court’s decision absent a showing of plain error.
United States v. Olano, 507 U.S. 725, 731 (1993). At trial, Popa failed to request a
severance of the immigration counts or, in the alternative, the bifurcation of
evidence against him. He now argues that the jury likely had become prejudiced
against him and thus convicted him on the immigration counts as well. However,
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the immigration charges were, in large part, based on Popa’s predicate crimes.
Thus, even if a second jury had been empaneled, it would necessarily also have had
to hear evidence about Popa’s identify theft crimes. Under these circumstances, it
was not plain error for the district court to empanel only one jury. Matus-Leva,
311 F.3d at 1217.
III. Fact Finding by District Court
In order to preserve his rights in connection with possible future habeas
corpus proceedings, Popa objects to the district court making factual findings
during sentencing. We follow the binding precedent set forth by Almendarez-
Torres v. United States, 523 U.S. 224, 247 (1998), which currently forecloses this
argument.
IV. Reasonableness of Sentence
The substantive reasonableness of a sentence is reviewed for an abuse of
discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). Popa
contends that because he only played a minor role in the conspiracy, his sentence is
not reasonable. Based on the sentencing factors in 18 U.S.C. § 3553, the district
court reduced Popa’s offense level from 18 to 16 precisely because Popa only
played a minor role in the conspiracy. The district court judge further ordered
Popa’s two 24-month sentences on counts 11 and 13 to run concurrently with each
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other. On this record, Popa’s sentence is reasonable. United States v. Carty, 520
F.3d 984, 996 (9th Cir. 2008). We will not disturb it.
V. Revocation of Citizenship
Finally, Popa argues that the order revoking his United States citizenship
should be reversed because there was insufficient evidence to support his
conviction for immigration fraud. When, as here, a defendant does not preserve a
claim of sufficiency of the evidence by moving for acquittal at the close of the
evidence, this court’s review is deferential, requiring reversal only upon plain error
or to prevent manifest injustice. United States v. Singh, 532 F.3d 1053, 1056-57
(9th Cir. 2008). In connection with a challenge to the sufficiency of the evidence,
we must determine whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Id.
Under 18 U.S.C. § 1001(a)(1)-(2), a defendant commits fraud by knowingly
and wilfully concealing or covering up any material fact or by making any
materially false, fictitious or fraudulent statement. Knowingly procuring
citizenship contrary to law is a violation of 18 U.S.C. § 1425. At trial, the jury
heard extensive testimony that Popa was part of the identity theft conspiracy both
before and at the time of his citizenship application process, but that he denied ever
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having conducted any unlawful activities when so asked by an immigration officer.
Testimony also showed that if Popa had acknowledged his wrongdoings, he would
not have been granted citizenship. On this background, a rational jury could have
concluded that Popa violated the above provisions. Because no plain error or
manifest injustice has been shown here, Singh, 532 F.3d at 1057, we affirm.
AFFIRMED.
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