United States v. Miguel Osuna-Alvarez
2015 U.S. App. LEXIS 9653
| 9th Cir. | 2015Background
- Osuna-Alvarez arrested October 13, 2012 at Otay Mesa port of entry with passport in Hector Osuna-Alvarez’s name.
- Border canine alerted; vehicle contained over 3 kg methamphetamine and 2 kg cocaine hidden in AC unit.
- Osuna claimed to be Hector Osuna-Alvarez; later fingerprinting revealed false identity.
- Osuna admitted using his twin brother’s passport to enter the U.S. and identified as Miguel Osuna.
- Twin brother Hector testified he had no permission to use the passport; court found Hector complicit.
- Osuna was convicted at bench trial of aggravated identity theft under 18 U.S.C. § 1028A; district court sentenced accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1028A requires theft of a means of identification. | Osuna: section requires theft; no 'without lawful authority' if owner consent. | Osuna: owner consent defeats 'without lawful authority' requirement; no theft needed. | No; §1028A does not require theft; use without lawful authority suffices. |
Key Cases Cited
- United States v. Reynolds, 710 F.3d 434 (D.C. Cir. 2013) (rejected requiring theft as element; focuses on 'without lawful authority' use)
- United States v. Lumbard, 706 F.3d 716 (6th Cir. 2013) (rejects theft element requirement for §1028A)
- United States v. Ozuna-Cabrera, 663 F.3d 496 (1st Cir. 2011) (holds §1028A can be violated by unlawful use even with permission)
- United States v. Carrion-Brito, 362 F. App’x 267 (3d Cir. 2010) (unpublished but cited for interpretation of §1028A)
- United States v. Hurtado, 508 F.3d 603 (11th Cir. 2007) (early interpretation of identity theft statute)