United States v. Nolte
2016 U.S. App. LEXIS 22630
| 1st Cir. | 2016Background
- Defendant Steven Nolte obtained and used the identity of George France (born 1966) to secure U.S. passports (1997, replacement in Costa Rica 1997, renewal 2007, replacement attempt 2012) and ultimately a Social Security number for that identity.
- In 2012, Nolte applied in Boston for a replacement passport as George France; the application was flagged and agents interviewed him, during which he made false statements about his identity and Social Security usage. Fingerprints, DNA, and witness testimony at trial established Nolte was the defendant.
- A federal jury convicted Nolte of: (I) making false statements in a passport application, 18 U.S.C. § 1542; (II) aggravated identity theft, 18 U.S.C. § 1028A; and (III) using a falsely-obtained Social Security number to obtain benefits, 42 U.S.C. § 408(a)(7)(A).
- The PSR applied a four-level Guidelines enhancement under U.S.S.G. § 2L2.2(b)(3)(A) for fraudulently obtaining/using a U.S. passport; Nolte objected, arguing Application Note 2 to U.S.S.G. § 2B1.6 barred the enhancement as impermissible double counting because he was also convicted under § 1028A.
- The district court overruled Nolte’s objections, imposed the enhancement, and sentenced him to a total of 36 months (12 months for Counts I & III and mandatory consecutive 24 months for Count II). Nolte appealed.
Issues
| Issue | Nolte's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the § 2L2.2(b)(3)(A) four-level enhancement for fraudulent use/obtainment of a U.S. passport is barred by Application Note 2 to § 2B1.6 (double counting) | Application Note 2 prohibits applying a specific-offense characteristic for use of a “means of identification” when § 1028A is applied; a passport contains a passport number (a “means of identification”), so enhancement is barred | Application Note 2 bars enhancements for use of a statutory “means of identification”; a passport is an “identification document,” not a statutory “means of identification” (the statute lists passport number, not passport itself) | Affirmed: enhancement applicable; Application Note 2 does not bar enhancement for use of a passport because the guideline and statute distinguish “identification document” from “means of identification.” |
| Whether § 1028A(a)(1) (aggravated identity theft) requires the “person” whose identity is used to be living | Nolte: “person” means a living individual; using a deceased person’s identity cannot trigger § 1028A | N/A at panel level (government argued statutory language covers identity misuse) | Affirmed: panel follows circuit precedent (United States v. Jiménez) holding “person” includes deceased persons; conviction stands. |
Key Cases Cited
- United States v. Jiménez, 507 F.3d 13 (1st Cir.) ("person" in § 1028A covers living and deceased individuals)
- United States v. Melendrez, 389 F.3d 829 (9th Cir.) (distinguishing "identification documents" from the underlying "means of identification")
- United States v. Zheng, 762 F.3d 605 (7th Cir.) (held passport is both an identification document and a "means of identification" for § 1028 purposes; contrary view)
- United States v. Sharapka, 526 F.3d 58 (1st Cir.) (limit Application Note 2 to its plain language; reject implied double-counting prohibition)