United States v. Gonzales, 844 F.3d 929

From Jan. 2009 to May 2012 Gonzales and an accomplice registered sham employers with state unemployment agencies (TX, CO, NM), listed real individuals’ identifying information as employees, and filed fraudulent unemployment claims; prepaid debit cards were mailed to PO boxes they controlled and used for personal benefit.
Law enforcement searched Gonzales’s home in May 2012; he was indicted in March 2014 and pleaded guilty in Aug. 2014 to mail fraud (4 counts), conspiracy to commit mail fraud, and aggravated identity theft (18 U.S.C. § 1028A) without a plea agreement.
The PSR began with USSG § 2B1.1 base offense level 7 and increased levels for intended loss (> $1M), sophisticated means, and a 4-level enhancement because the number of victims exceeded 50 (PSR counted 107 victims using application note 4(E)(ii): individuals whose means of identification were used).
Gonzales objected, arguing only the three state agencies suffered financial loss and that application note 2 to USSG § 2B1.6 (aggravated identity theft) forbids applying any enhancement “for the transfer, possession, or use of a means of identification” when a § 1028A sentence is imposed, so the victim-count enhancement was improper.
The district court overruled the objection, adopted the PSR’s calculation (offense level 30; guideline range 108–135 months), and sentenced Gonzales to a downward-variant total of 111 months plus the mandatory consecutive two-year § 1028A term.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the § 2B1.1 "50 or more victims" enhancement (counting individuals whose means of identification were used) may be applied when the defendant is also convicted under § 1028A and USSG § 2B1.6, cmt. n.2 forbids enhancements "for the transfer, possession, or use of a means of identification."	The government (plaintiff) argued the application note to § 2B1.1 properly counts those individuals as victims and the § 2B1.6 note does not bar a victim-count enhancement because the enhancement addresses extent (number of victims), not the nature of the conduct punished by § 1028A.	Gonzales argued application note 2 to § 2B1.6 unambiguously precludes any special-offense-characteristic enhancements "for the transfer, possession, or use" of means of identification, so counting identity-holders as victims double-punishes the same conduct and the 4-level enhancement must be vacated.	The Tenth Circuit affirmed. It held § 2B1.6 app. n.2 bars only enhancements that are specific offense characteristics addressing the nature of the identity-theft conduct (e.g., an enhancement for unauthorized transfer/use to obtain other IDs), not a victim-count enhancement that increases punishment based on the extent (number) of identities misused. Manatau supports that distinction; circuit consensus aligns with this reading.

United States v. Manatau, 647 F.3d 1048 (10th Cir. 2011) (number-of-victims enhancement is not a "specific offense characteristic for the transfer, possession, or use of a means of identification" barred by § 2B1.6 app. n.2)
United States v. Ford, 784 F.3d 1386 (11th Cir. 2015) (circuit court upholding victim-count enhancement based on misuse of means of identification)