United States v. Miguel Osuna-Alvarez

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.