United States v. Ozuna-Cabrera
2011 U.S. App. LEXIS 22101
| 1st Cir. | 2011Background
- Ozuna-Cabrera applied for a passport on 3/19/2008 under alias Howard E. Bond using Bond's expired passport with Ozuna-Cabrera's photo.
- Bond allegedly sold the means of identification; Ozuna-Cabrera admitted purchasing the passport and a social security card from Bond.
- Ozuna-Cabrera pled guilty in 3/2009 to two counts of false statements in a passport application, one count of unlawful re-entry, and one count of aggravated identity theft.
- The district court imposed a mandatory 24-month term for aggravated identity theft consecutive to 46 months on the other counts, totaling 70 months.
- Ozuna-Cabrera appeals conviction arguing Rule 11 deficiencies and that § 1028A(a)(1) requires theft; he also challenges the sentence’s reasonableness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1028A(a)(1) requires theft of the means of identification. | Ozuna-Cabrera | Ozuna-Cabrera | No; no theft required; use without lawful authority suffices. |
| Whether the Rule 11 plea violated knowingness/voluntariness requirements. | Ozuna-Cabrera | Ozuna-Cabrera | Not plain error; plea valid. |
| Whether the § 2L1.2 enhancement and sentencing were proper under 3553(a). | Ozuna-Cabrera | Ozuna-Cabrera | Sentence within reason; district court properly considered §3553(a). |
| Whether the district court erred in applying the CHC adjustment and downward adjustments. | Ozuna-Cabrera | Ozuna-Cabrera | No reversible error; court tailored sentence within guidelines. |
Key Cases Cited
- United States v. Caraballo-Rodriguez, 480 F.3d 62 (1st Cir. 2007) (plain-error standard for Rule 11 challenges; knowledge not required for § 1028A(a)(1))
- United States v. Godin, 534 F.3d 51 (1st Cir. 2008) (discusses knowledge of identity and § 1028A authority)
- Flores-Figueroa v. United States, 556 U.S. 646 (U.S. 2009) (whether defendant must know identity is real; not controlling for theft- vs use-based reading)
- United States v. Jimenez, 507 F.3d 13 (1st Cir. 2007) (purpose of § 1028A; identity theft enhancement purposes)
- United States v. Charlton, 600 F.3d 43 (1st Cir. 2010) (reaffirming treatment of enhancements and sentencing framework)
- United States v. Nunez, 146 F.3d 36 (1st Cir. 1998) (rule-of-lenity and interpretation guidance in criminal statutes)