United States v. Xiao Yong Zheng
2014 U.S. App. LEXIS 15470
| 7th Cir. | 2014Background
- Zheng participated in a Chicago document-fraud ring (2007–2009) that made and sold fake Chinese passports and Social Security cards to obtain Illinois driver’s licenses/IDs.
- He pleaded guilty to conspiracy to commit passport fraud and aggravated identity theft under 18 U.S.C. § 1028A.
- The PSR applied a two-level enhancement for fraudulent use of a foreign passport under U.S.S.G. § 2L2.1(b)(5)(B); Zheng objected citing the aggravated-identity-theft guideline’s anti–double-counting rule (U.S.S.G. § 2B1.6 cmt. n.2).
- The district court overruled the objection, applied the two-level enhancement, calculated a total offense level of 23 (advisory range 46–57 months), imposed 37 months on the conspiracy count, then added the mandatory consecutive 2-year term under § 1028A for a total of 61 months.
- On appeal the sole issue was whether Application Note 2 to § 2B1.6 precludes applying a Chapter Two enhancement for fraudulent use of a foreign passport when the defendant was convicted of aggravated identity theft.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Application Note 2 to U.S.S.G. § 2B1.6 bars applying a § 2L2.1(b)(5)(B) enhancement for fraudulent use of a foreign passport when defendant was convicted of aggravated identity theft | Zheng: A foreign passport is a "means of identification" under 18 U.S.C. § 1028(d)(7); Application Note 2 forbids duplicative Chapter Two enhancements for means of identification | Government: A passport is an "identification document" under § 1028(d)(3), a distinct (narrower) category, so the passport enhancement may still apply | The court held a passport qualifies as a "means of identification" under § 1028(d)(7); Application Note 2 bars the two-level passport enhancement; sentence vacated and remanded for resentencing |
Key Cases Cited
- United States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012) (discusses authoritative nature of Guidelines commentary and scope of double-counting rules)
- United States v. Sutton, 582 F.3d 781 (7th Cir. 2009) (standard of review for guideline interpretation)
- United States v. Spears, 729 F.3d 753 (7th Cir. 2013) (held certain counterfeit documents qualify as "means of identification")
- United States v. Doss, 741 F.3d 763 (7th Cir. 2013) (applied Application Note 2 to bar enhancement for counterfeit access-device conduct)
- United States v. Zahursky, 580 F.3d 515 (7th Cir. 2009) (government bears burden to show sentencing error was harmless)
- United States v. Wang, 707 F.3d 911 (7th Cir. 2013) (related factual background from same conspiracy)