United States v. Nathan Lumbard
2013 U.S. App. LEXIS 2614
| 6th Cir. | 2013Background
- Lumbard purchased Cheesebrew’s driver’s license, social security number, and birth date for $500 and used that information to obtain a passport in Cheesebrew’s name with his own photo.
- He traveled internationally, and later fled, returning to the United States where he faced federal charges relating to passport fraud and aggravated identity theft under 18 U.S.C. § 1028A(a)(1).
- The district court denied dismissal of the aggravated-identity-theft count, and Lumbard pled guilty while preserving appeal on the denial. He was sentenced to 24 months on each count, to run consecutively, with a $30,000 fine after an upward departure under § 4A1.3.
- Lumbard challenged the § 1028A(a)(1) conviction as legally improper and argued the sentence was procedurally and substantively unreasonable.
- The district court calculated an adjusted offense level and applied an upward departure to account for his criminal history, bail status, and conduct, resulting in a new fine range of $4,000–$40,000 and a total sentence of 48 months plus a $30,000 fine.
- The Sixth Circuit affirmed, adopting a broader interpretation of § 1028A and holding that ‘without lawful authority’ includes use where the information is obtained with permission to misuse it, and that the sentence was procedurally and substantively reasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 1028A(a)(1) reach uses of means of identification with permission to misuse? | Lumbard argues it does not; Flores-Figueroa controls to limit to theft. | The Government argues ‘without lawful authority’ covers misuse even with permission and includes more than theft. | § 1028A applies to cases with permission to misuse the information. |
| Was the § 30,000 fine procedurally and substantively reasonable? | Lumbard contends the court failed to justify the fine and acknowledged inability to pay. | Government contends the court considered § 3553(a) factors and fine-specific factors, including ability to pay. | Fine procedurally sound and substantively reasonable given the court’s analysis and departure. |
| Did the district court abuse its discretion in sentencing beyond the initial Guidelines range? | Lumbard argues the departure was unwarranted and unwarranted weight given to factors. | Court explained substantial justification for upward departure due to history and conduct. | Upward departure affirmed; sentence within the framework of § 3553(a) factors. |
Key Cases Cited
- Mobley v. United States, 618 F.3d 539 (6th Cir. 2010) (recognized § 1028A applies beyond theft)
- Spears v. United States, 697 F.3d 592 (7th Cir. 2012) (broad interpretation of § 1028A)
- Ozuna-Cabrera v. United States, 663 F.3d 496 (1st Cir. 2011) (§ 1028A covers non-theft misuse)
- Retana v. United States, 641 F.3d 272 (8th Cir. 2011) (Flores-Figueroa not determinative on scope)
- Abdelshafi v. United States, 592 F.3d 602 (4th Cir. 2010) (§ 1028A extends beyond theft)
- Carrion-Brito v. United States, 362 F. App’x 267 (3d Cir. 2010) (extends § 1028A beyond simple theft)
- Hurtado v. United States, 508 F.3d 603 (11th Cir. 2007) (statutory interpretation of § 1028A broad scope)
- Hines v. United States, 472 F.3d 1038 (8th Cir. 2007) (broad reading of § 1028A)
- Flores-Figueroa v. United States, 556 U.S. 646 (Supreme Court, 2009) (held knowledge of ownership of ID is required)