United States v. Elba Torres

United States Court of Appeals
For the Eighth Circuit
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No. 18-1245
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United States of America
Plaintiff - Appellee
v.
Elba Torres
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: January 14, 2019
Filed: April 15, 2019
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Before LOKEN, GRASZ, and STRAS, Circuit Judges.
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STRAS, Circuit Judge.
Elba Torres was convicted of charges related to the unlawful acquisition and
sale of identity documents. See 18 U.S.C. §§ 1028(a)(3), 1028A(a)(1). One of those
items was a United States passport card, a wallet-sized document that permits
American nationals to travel by land or sea between the United States and a limited
number of foreign countries. See 22 C.F.R. § 51.3(e). She argues that possession of
a passport card did not justify enhancing her sentence for “fraudulently obtain[ing]
or us[ing] . . . a United States passport.” U.S.S.G. § 2L2.1(b)(5)(A). Her theory is
that the phrase “a United States passport” refers only to a passport book. The district
court1 disagreed, and so do we.
This case poses a seemingly straightforward question: is a passport card “a
United States passport” under section 2L2.1(b)(5)(A)? To answer this question, we
apply “basic rules” of “statutory” interpretation, including the ordinary-meaning
rule, which requires us to give undefined words and phrases their plain and ordinary
meaning. United States v. Hackman, 630 F.3d 1078, 1083 (8th Cir. 2011).
What makes this case unusual, however, is that the ordinary meaning of the
phrase “United States passport” is intertwined with its technical legal meaning,
because a passport is itself a legal document. To quote one representative definition,
a passport is an “official document issued by a government” to prospective travelers.
The American Heritage Dictionary of the English Language 1289 (5th ed. 2011);
see also Webster’s Third New International Dictionary 1652 (2002) (explaining that
a passport is “a formal document issued by a competent officer . . . of a country”).
So a United States passport, then, must refer to any official document that the United
States government has designated as a passport and issues to travelers.
This includes passport cards. One federal regulation, for example, identifies
passport cards as one of five “[t]ypes of passports” and explains that they are “issued
. . . on the same basis” as “regular passports.” 22 C.F.R. § 51.3(e). A related
regulation broadly defines a passport as “a travel document regardless of format
issued under the authority of the Secretary of State attesting to the identity and
nationality of the bearer.” Id. § 51.1 (emphasis added). A passport card neatly fits
this definition because it is inscribed with, among other things, a photograph of the
bearer, a statement of the bearer’s nationality, and the words “passport card” and
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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“United States Department of State.” See Passport Card, Travel.State.Gov,
https://travel.state.gov/content/travel/en/passports/apply-renew-passport/card.html
(last visited April 8, 2019). In short, despite its different physical appearance, a
passport card is as much a “United States passport” as its blue-covered counterpart.
This conclusion should come as little surprise to anyone who has recently
applied for either a regular passport book or a passport card. The instructions to the
Department of State’s current application, which can be used to apply for either or
both, explain that a “passport card is a U.S. passport issued in card format.” U.S.
Dep’t of State, U.S. Passport Application 3 (June 2016) (emphasis added), available
at https://eforms.state.gov/Forms/ds11.pdf (last visited April 8, 2019). The
instructions further state that a passport card, “[l]ike the traditional U.S. passport
book . . . , reflects the bearer’s origin, identity, and nationality, and is subject to
existing passport laws and regulations.” Id. And the Department’s publicly
available website offers similar information, explaining that “[t]he passport book
and passport card are both U.S. passports.” Passport Card, Travel.State.Gov,
https://travel.state.gov/content/travel/en/passports/apply-renew-passport/card.html
(last visited April 8, 2019).
Torres’s arguments to the contrary are unpersuasive. She contends that the
Guidelines must exclude passport cards because they did not exist when the
Sentencing Commission first implemented section 2L2.1(b)(5)(A). The problem
with this argument, however, is that nothing about the use of the phrase “a United
States passport” suggests a limited class of then-existing passports. In fact, adoption
of such a broad phrase suggests that it includes any form of passport that the
Department of State decides to issue on behalf of the United States.
Torres also urges us to invoke the rule of lenity, but this canon applies only
when the relevant language is ambiguous and ordinary interpretive tools “reveal[]
no satisfactory construction.” Lockhart v. United States, 136 S. Ct. 958, 968 (2016).
As the Fifth Circuit recently explained when confronted with a near-identical
question, the phrase “United States passport” “is not ambiguous and clearly includes
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passport cards.” United States v. Casillas-Casillas, 845 F.3d 623, 626 (5th Cir.
2017) (addressing the meaning of the same phrase as it appears in
section 2L2.2(b)(3)(A) of the Guidelines). Our analysis leads us to the same
conclusion.
We accordingly affirm the judgment of the district court.
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