United States v. Turhan Armstrong

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50192
Plaintiff-Appellee, D.C. Nos.
2:17-cr-00505-RGK-1
v. 2:17-cr-00505-RGK
TURHAN LEMONT ARMSTRONG, AKA
Jameel Jamal, AKA Bob Jimenez, AKA MEMORANDUM*
Hassan Karakra, AKA Emmett Louis, AKA
Frank Masari, AKA Carlos Mata, AKA
Carlos Rivera, AKA Emilio Sanchez, AKA
Jose Soto, AKA T, AKA Terrence, AKA
Turhan Lemont Walker, AKA Kent Warden,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted October 8, 2021
San Francisco, California
Before: HAWKINS and FRIEDLAND, Circuit Judges, and McSHANE,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
Defendant Turhan Armstrong appeals his convictions and sentence for his
involvement in a scheme to defraud banks, credit card companies, and other
lenders by using stolen identities to apply for loans. A jury found Armstrong
guilty of three conspiracy offenses and several associated substantive crimes,
including aggravated identity theft. The district court sentenced him to 259
months in prison, the low end of the applicable Guidelines Range, based on a total
offense level that included a 4-level aggravating role adjustment for Armstrong’s
involvement in the offense and an 18-level loss enhancement based on a total
intended loss calculation exceeding $3.5 million.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We
affirm Armstrong’s convictions, vacate his sentence, and remand this case to the
district court for resentencing.
1. The district court did not plainly err by failing to give a limiting
instruction sua sponte regarding evidence of the alleged co-conspirators’ guilty
pleas. The Government did not introduce the pleas as substantive evidence of
Armstrong’s guilt or for some other wrongful purpose, and defense counsel did
not object to the Government’s mention of them. The defense made its own use
of the pleas as impeachment evidence. Any suggestion of unfair prejudice from a
lack of a specific limiting instruction is undercut by the general cautionary
instruction given by the district court, and the substantial direct evidence of
2
Armstrong’s guilt. While the Government’s use of the pleas may well have
required a limiting instruction upon proper objection, see United States v. Halbert,
640 F.2d 1000, 1006-07 (9th Cir. 1981), these circumstances cannot establish
plain error, see United States v. Garcia-Guizar, 160 F.3d 511, 524 (9th Cir. 1998);
United States v. Tamura, 694 F.2d 591, 601-02 (9th Cir. 1982).
2. The district court did not plainly err by giving the jury a Pinkerton
instruction for conspiracies charged under 18 U.S.C. §§ 1029(b), 1349, and
1956(h). Federal courts have widely understood Pinkerton to apply to all
conspiracy offenses in the criminal code, and Armstrong has cited no cases to the
contrary. An error cannot be clear or obvious if there is no authority on point.
United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011).
Armstrong’s separation of powers argument likewise fails. His assertion that
Pinkerton violates separation of powers principles boils down to an assertion that
Pinkerton was wrongly decided, but we are bound to apply Pinkerton unless and
until the Supreme Court overrules it, Nunez-Reyes v. Holder, 646 F.3d 684, 692
(9th Cir. 2011) (en banc).
3. Sufficient evidence supported Armstrong’s conviction for aggravated
identity theft under 18 U.S.C. § 1028A, based on his use of the alias “Jameel
Jamal.” Section 1028A requires the Government to prove “that the defendant
knew that the ‘means of identification’ he or she unlawfully transferred,
3
possessed, or used, in fact, belonged to ‘another person.’” Flores-Figueroa v.
United States, 556 U.S. 646, 647 (2009). The Government introduced evidence
from the Social Security Administration (“SSA”) that a person named Jameel
Jamal had applied for and obtained a Social Security Number (“SSN”) about a
decade before the start of the charged conspiracy, and that an SSA employee had
verified the applicant’s identity. The Government introduced evidence that
Armstrong’s co-conspirator would obtain real SSNs and pass them on to him.
Finally, the Government offered evidence that Armstrong repeatedly and
successfully tested the authenticity of the Jameel Jamal identity in applications to
government agencies, banks, and other lenders. See United States v. Doe, 842
F.3d 1117, 1121 (9th Cir. 2016). Viewing this evidence in the light most
favorable to the prosecution, a rational jury could have concluded that Armstrong
knew that the “means of identification” associated with his alias “Jameel Jamal”
belonged to a real person.
4. The district court erred by failing to follow Application Note 2(C) to
United States Sentencing Guidelines Manual (“U.S.S.G.”) § 2S1.1. Although
Armstrong did not frame his objection at sentencing in the same terms he
currently does, he did object to the imposition of the aggravating role adjustment,
and the substance of his claim on appeal remains the same. See United States v.
Lloyd, 807 F.3d 1128, 1174-75 (9th Cir. 2015) (“[I]t is claims that are deemed
4
waived or forfeited, not arguments.”) (quoting United States v. Pallares-Galan,
359 F.3d 1088, 1095 (9th Cir. 2004)). We therefore review the district court’s
interpretation of the Guidelines de novo. United States v. Gasca-Ruiz, 852 F.3d
1167, 1170 (9th Cir. 2017) (en banc).
Application Note 2(C) requires the district court to determine the
applicability of the aggravating role adjustment based on the defendant’s role in
the money laundering offense, and not on the underlying offense from which the
laundered funds were derived. U.S.S.G. § 2S1.1 cmt. n.2(C). Here, the district
court adopted the analysis in the Presentence Report, which analyzed Armstrong’s
leadership role solely based on his conduct in the underlying fraud conspiracy,
directly contravening Application Note 2(C). We cannot be sure that this error
was harmless, and we therefore must vacate Armstrong’s sentence. United States
v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011).
Because we vacate Armstrong’s sentence on this ground, we need not and
do not address Armstrong’s contention that the loss enhancement was erroneous
because the district court failed to make adequate factual findings that he
“purposely sought to inflict” the full extent of the intended loss attributed to him,
as Armstrong argues is required by Application Note 3(A)(ii) to U.S.S.G. § 2B1.1.
This provision’s interaction with Guidelines General Application Principle
§ 1B1.3(a)(1)(B), which allows a court to attribute to a defendant the reasonably
5
foreseeable losses of his co-conspirators, presents a novel and challenging legal
issue. The district court may address this question in the first instance on remand.
Similarly, we do not address Armstrong’s claim that the district court failed to
properly consider the § 3553(a) sentencing factors. On remand, the district court
will have another opportunity to carefully weigh those factors in light of the
recalculated Guidelines Range to ensure that the new sentence is “sufficient, but
not greater than necessary, to comply with the purposes” of § 3553. 18 U.S.C.
3553(a).
Accordingly, we affirm Armstrong’s convictions, vacate his sentence, and
remand this case for resentencing consistent with this disposition.
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
6