United States v. Derek Johnson
16-4847
| 4th Cir. | Jan 5, 2018Background
- Derek Johnson pleaded guilty to theft of U.S. property > $1,000 under 18 U.S.C. § 641 and was sentenced to 27 months' imprisonment.
- Johnson obtained a North Carolina ID in the name of real person Furman Daniels by using Daniels’ correct birthdate and Johnson’s photo.
- Johnson created checks in Daniels’ name using purchased (but fake) checking account numbers and used the ID and checks to buy stamps which he sold for cash. He wrote 176 checks and showed the ID 144 times across four states.
- At sentencing the district court applied a 2-level Guidelines enhancement under U.S.S.G. § 2B1.1(b)(11)(C)(i) for using another person’s means of identification to obtain other means of identification.
- Johnson argued the enhancement did not apply because the forged checks (and account numbers) were not means of identification of a specific person; the government argued the enhanced ID card (name + birthdate) sufficed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2B1.1(b)(11)(C)(i) enhancement applies | Gov: Johnson used Daniels’ identifying information to create another means of ID (the checks/ID), justifying enhancement | Johnson: Checks/account numbers are not "means of identification" of a specific person because numbers were fake and name alone is non-unique | Enhancement proper because Johnson created an ID card using Daniels’ real name + birthdate, which together identify a specific individual |
| Whether checks themselves must identify the person | Gov: need not be the checks; creation of the NC ID from Daniels’ info suffices as producing another means of ID | Johnson: argues the checks do not identify Daniels and thus enhancement cannot attach | Court: even if checks weren’t means, the ID card (name + birthdate) qualifies and supports enhancement |
| Whether there was evidence Johnson used Daniels’ info without consent | Gov: PSR and Johnson’s admissions show sole participation and use of Daniels’ info | Johnson: record lacks direct proof of creation/use without Daniels’ permission | Court: counsel admitted Johnson used Daniels’ name and birthdate; PSR admissions preclude consent claim |
| Whether harmless alternative reasoning supports sentence | Gov: district court also stated it would have varied upward under § 3553(a) | Johnson: challenges application of enhancement (primary issue) | Court: affirmed; even if enhancement were erroneous, district court would have imposed same sentence on § 3553(a) grounds |
Key Cases Cited
- United States v. Mitchell, 518 F.3d 230 (4th Cir. 2008) (defines when non-unique identifiers, combined with other information, constitute a means of identification of a specific individual)
- United States v. Garnett, 243 F.3d 824 (4th Cir. 2001) (appellate court may affirm on any proper basis supported by the record)
- United States v. Savillon-Matute, 636 F.3d 119 (4th Cir. 2011) (affirming that an appellate court need not remand when district court would impose the same reasonable sentence on remand)