United States v. Dumitru, 991 F.3d 427

Andreea Dumitru, an immigration attorney in Queens, prepared and submitted many asylum applications between 2012–2017, often using recycled, nearly identical narratives rather than individualized client accounts.
Dumitru’s staff testified she directed them to fill out and sign applications and affidavits for clients (often without client review or consent); an investigator reviewed 105 applications and found 100 contained one or more of five nearly identical narratives.
The government prosecuted Dumitru for (1) asylum fraud (18 U.S.C. § 1546(a)), (2) making false statements to federal agencies (18 U.S.C. § 1001), and (3) aggravated identity theft (18 U.S.C. § 1028A(a)(1)) for using clients’ identifying information (including forged signatures) in relation to the fraud.
A jury convicted on all counts. At sentencing the court applied a nine‑level Guidelines enhancement under U.S.S.G. § 2L2.1(b)(2)(C) for involvement of 100 or more documents and imposed a 36‑month concurrent term on Counts 1–2 plus a mandatory consecutive 24‑month term for Count 3 (total 60 months).
On appeal Dumitru argued (a) insufficiency of evidence for aggravated identity theft (arguing her use of client IDs was incidental and not the kind of “use” the statute punishes) and (b) error in applying the 100‑document enhancement (including that U.S.S.G. § 2B1.6 App. Note 2 bars such an enhancement when aggravated identity theft is charged).

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Was evidence sufficient to support aggravated identity theft (18 U.S.C. § 1028A)?	Gov’t: Dumitru knowingly used others’ means of identification (forged signatures, names, IDs) during and in relation to asylum‑fraud and did so without lawful authority.	Dumitru: Her use of client IDs was incidental to document fraud; she did not steal IDs or attempt to impersonate clients; statute shouldn’t cover mere listing/incidental signatures.	Affirmed. The Court held the conduct qualified as a "use" (purporting to act on another’s behalf) and testimony supported lack of client consent.
2. Was the nine‑level § 2L2.1(b)(2)(C) enhancement for 100+ documents properly applied (and barred by U.S.S.G. § 2B1.6 App. Note 2)?	Gov’t: Enhancement applies for breadth of fraudulent‑document conduct; record supports that ≥100 fraudulent applications existed.	Dumitru: App. Note 2 forbids applying a Chapter Two enhancement that penalizes transfer/possession/use of IDs when § 2B1.6 (aggravated‑ID guideline) is used; also insufficient evidence that ≥100 documents were involved.	Affirmed. Court held App. Note 2 does not bar the § 2L2.1 enhancement here because it targets the broader document fraud (not solely the transfer/use of IDs); record supports the preponderance finding of ≥100 documents.

United States v. Miller, 734 F.3d 530 (6th Cir. 2013) (refused to read § 1028A to cover mere listing of identifying information in false forms)
United States v. Berroa, 856 F.3d 141 (1st Cir. 2017) (interpreted “use” to require acting on another’s behalf or purporting to be another)
United States v. Abdelshafi, 592 F.3d 602 (4th Cir. 2010) (construed “without lawful authority” broadly to include lack of recognized authorization)
United States v. Reynolds, 710 F.3d 434 (D.C. Cir. 2013) (held § 1028A covers situations where identification was obtained with consent but used unlawfully)
United States v. Mahmood, 820 F.3d 177 (5th Cir. 2016) (held § 1028A does not require actual theft or misappropriation of identification)
United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc) (standards for procedural sentencing error review)
Anderson v. City of Bessemer, 470 U.S. 564 (U.S. 1985) (clear‑error standard for reviewing factual findings)