658 F. App'x 244
6th Cir.2016Background
- Johnson prepared and filed fraudulent 2010–2011 federal tax returns using PII of five third parties and received refunds via debit cards.
- She pleaded guilty to wire fraud, five counts of filing false returns, and five counts of aggravated identity theft; sentences included concurrent 60-month terms and consecutive 24-month terms for identity theft.
- At sentencing the district court applied a 2-level U.S.S.G. § 2B1.1(b)(11)(C) enhancement because the offense involved possession of five or more unlawfully obtained means of identification.
- The government argued the enhancement was supported because filing the false returns generated unique document locator numbers and because debit cards constituted access devices.
- Johnson argued on appeal that she did not use the unlawfully obtained identifications to produce another means of identification and thus the enhancement was improper; she did not preserve that specific objection at sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether application of U.S.S.G. § 2B1.1(b)(11)(C) was procedurally unreasonable | Johnson: she possessed unlawfully obtained IDs but did not use them to produce/obtain another means of identification | Government: creation of unique document locator numbers (and debit cards as access devices) constituted production/obtainment of other means of identification | Court: Reviewed for plain error (Johnson did not preserve); enhancement affirmed because document locator numbers count as means of identification under circuit precedent |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (sentencing reasonableness standard)
- United States v. Wright, 747 F.3d 399 (6th Cir. 2014) (plain-error review for unpreserved sentencing objections)
- United States v. Bostic, 371 F.3d 865 (6th Cir. 2004) (specificity required to preserve objections)
- United States v. Ruiz, 777 F.3d 315 (6th Cir. 2015) (invited-error/waiver when defendant affirmatively agrees guideline applies)
- United States v. Aparco-Centeno, 280 F.3d 1084 (6th Cir. 2002) (waiver by affirmative representation)
- United States v. Hamad, [citation="300 F. App'x 401"] (6th Cir. 2008) (treating generated claim/control numbers as means of identification)