UNITED STATES оf America, Plaintiff-Appellee, v. XIAO YONG ZHENG, Defendant-Appellant.
No. 12-2739.
United States Court of Appeals, Seventh Circuit.
Decided Aug. 12, 2014.
763 F.3d 605
Argued Feb. 27, 2013.
in his reply brief in this court, he specifically denies making such an argument. Rather, he seeks relief solely on the ground that, in our earlier encounters with this case, we misconstrued the text of the Illinois statute—the same argument that he made to the initial sentencing court, to this court on appeal and to the district court in his motion for relief under
Because Mr. Mathews‘s petition was blocked by
Matthew F. Madden, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Michelle L. Jacobs, Attorney, Biskupic & Jacobs, S.C., Mequon, WI, for Defendant-Appellant.
SYKES, Circuit Judge.
Xiao Yong Zheng was involved in a Chicago-based document-fraud oрeration that made fake Chinese passports and other identification documents for customers seeking false documents to use to obtain Illinois driver‘s licenses and identification cards. Zheng pleaded guilty to aggravated identity theft and conspiracy to misuse Social Security numbers and commit passport fraud. The district court imposed a sentence of 61 months. In сalculating Zheng‘s sentencing guidelines range, the judge applied a two-level enhancement for fraudulent use of a foreign passport. See U.S.S.G. § 2L2.1(b)(5)(B). Zheng challenges the application of the enhancement based on a special guideline rule against “double counting” for aggravated identity theft.
We vacate and remand for resentencing. A person commits aggravated identity theft when he knowingly transfers, possesses, or uses a means of identification without lawful authority “during and in relation to” a set of enumerated offenses. See
A foreign passport is a “means of identification” under the definition of that term found in
I. Background
From 2007 to 2009, Zheng worked in a fraudulent-document ring operating in Chicago‘s Chinatown neighborhood. The group sold fake Chinese passports and Social Security cards from the United States territory of Saipan to customers who wanted to obtain an Illinois driver‘s license or identification card but lacked legitimate documents verifying their identity.1 Zheng had been introduced to the ring the year before, when he needed false identifying documents to apply for an Illinois driver‘s license for himself. In September 2006 he obtained a driver‘s license using another person‘s Social Security card and a fake Chinese passport reflecting that person‘s identifying information.
Zheng was thereafter recruited to join the conspiracy and over a two-year period helped more than 100 customers secure false identifying documents. His role in the conspiracy was to meet with customers, collect cash payment, and gather the information necessary to prepare the false documents. Zheng also transported customers to the office of the Illinois Secretary of State, where they used the falsified documents to frаudulently obtain a driver‘s license or identification card. Near the end of the conspiracy, Zheng began helping his coconspirators in the manufacturing
The investigation produced three separate indictments, each with multiple defendants. In a 2011 superseding indictment, Zheng was charged with conspiracy to make or use a false passport and misuse a Social Security number, see
Aggravated identity theft is an independent offense but is tied to the commission of an underlying crime of fraud or deceit enumerated in the statute. Specifically,
Aggravated identity theft thus operates as a kind of statutory sentence enhancement for the predicate crime. This sentence structure raises the possibility that the same offense conduct will have the effect of bumping the defеndant‘s sentence up twice—once in the guidelines calculation for the underlying offense and again through the mandatory consecutive sentence for aggravated identity theft. The Sentencing Commission has promulgated a special rule to avoid the “double counting” inherent in cases of aggravated identity theft. Application Note 2 to the guideline for aggravаted identity theft instructs judges not to apply any specific offense characteristic for the transfer, possession, or use of a “means of identification” when calculating the offense level for the underlying crime. U.S.S.G. § 2B1.6 cmt. n.2.
In Zheng‘s presentence report, however, the probation officer recommended the application of a two-level enhancement for fraudulent use of a foreign passport under U.S.S.G. § 2L2.1(b)(5)(B). Zheng objected, citing Application Note 2 and arguing that a foreign passport qualifies as a “means of identification” as that term is defined in
The district court agreed with the government, overruled Zheng‘s objection, and applied the two-level enhancement for fraudulent use of a foreign passport. Zheng‘s total offense level was 23, which yielded an advisory guidelines range of 46 tо 57 months on the conspiracy count. The judge imposed a below-guidelines sentence of 37 months on that count and tacked on the two-year consecutive term as required under
II. Discussion
The sole issue on appeal is the district court‘s application of the two-level enhancement under U.S.S.G. § 2L2.1(b)(5)(B) for Zheng‘s fraudulent use of a foreign passport. This issue turns on an interpretatiоn of Application Note 2 to § 2B1.6, the
As we have noted, Application Note 2 is a special guidelines rule against double counting. See United States v. Vizcarra, 668 F.3d 516, 519-27 (7th Cir. 2012) (explaining that the guidelines do not contain a general background rule against double counting but instead prohibit double counting only as specifically spelled out in the text). The guideline for aggravated identity theft is straightforward. It implements the statutory command of a two-year consecutive sentence: “If the defendant was convicted of violating
Application Note 2 to § 2B1.6 explains that when the defendant is convicted of aggravated identity theft, Chapter Two enhancements do not apply to the predicate offense:
Inapplicability of Chapter Two Enhancement.—If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offеnse, do not apply any specific offense characteristic for the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense. A sentence [for aggravated identity theft] under this guideline accounts for this factor for the underlying offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct). “Means of identification” has the meaning given that term in
18 U.S.C. § 1028(d)(7) .
U.S.S.G. § 2B1.6 cmt. n.2. So when calculating the guidelines range for the underlying crime—here, conspiracy to commit passport fraud3—the court may not apply any specific offense characteristic for the transfer, possession, or use of a “means of identification.” The Sentencing Commission has concluded that the conviction for aggravated identity theft adequately accounts for this offense conduct.
Here, the district court enhanced the offense level for the conspiracy count under U.S.S.G. § 2L2.1(b)(5)(B), which directs the court to apply a two-level increase if “the defendant fraudulently obtained оr used ... (B) a foreign passport.”
But Zheng‘s conspiracy conviction was the predicate crime for aggravated identity theft, so Application Note 2 knocks the enhancement out. Or at least it does if a foreign passport counts as a “means of identification.” Application Note 2 defines “means of identification” by reference to
(7) [T]he term “means of identification” means any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any—
(A) name, social security number, date of birth, official State or government issued driver‘s license or identification number, alien registration number, government passport number, employer or taxpayer identification number;
(B) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;
(C) unique electronic identification number, address, or routing code; or
(D) telecommunication identifying information or access device....
This definition is very broad. It primarily refers to intangible identifying information (e.g., name, date of birth, Social Security number, etc.). But it also encompasses physical objects that are embedded with identifying information (e.g., aсcess devices, fingerprints, iris images, other biometrics). See United States v. Spears, 729 F.3d 753, 755 (7th Cir. 2013). Passports are physical objects embedded with intangible identifying information. Indeed, in Spears we included passports in a list of examples of physical objects that fall under the definition of “means of identification” in
Our decision in Spears focused on a different interpretive puzzle in
Also relevant here is United States v. Doss, 741 F.3d 763 (7th Cir. 2013), which addressed Application Note 2 directly and held that thе identifying information embedded in a counterfeit access device qualifies as a “means of identification” for purposes of the double-counting bar in § 2B1.6. Id. at 767. But Doss was an easy case; the enhancement at issue there applied to trafficking in counterfeit access devices, see U.S.S.G. § 2B1.1(b)(11)(B), and access devices are specifically mentioned in the statutory definition of “means of identification,” see
Neither Spears nor Doss addressed the specific argument the government raises here. The government argues that a passpоrt falls under the narrower definition of “identification document” in
We see no reason why a passport cannot be both an “identification document” and a “means of identification.” The terms overlap, and nothing in the statutory scheme suggests that an identification document cannot also qualify as a means of identification. The broader term is defined by reference to items of identifying information, which may or may not be embedded in an official document such as a passport. That is, the definition of “means of identification” covers intangible identifying information, regardless of form. The term “identification document,” in contrast, refers only to tangible documents that serve identification purposes. The two terms appear in a series of statutes falling under the general heading of identity theft and fraud. Just two of these statutes—
In contrast, the statutes using the term “identification document” are more targeted and specifically require falsification or misuse of an identification document. If the defendant‘s conduct meets the narrower definition, the corresponding charging options open to the prosecutor are more numerous; many counterfeit-document crimes use the term “identification document.” See, e.g.,
As almost an afterthought, the government points to an unpublished Ninth Circuit decision to support its position that a passport is not a means of identification. See United States v. Dehaney, 455 Fed. Appx. 781 (9th Cir. 2011). The discussion in Dehaney was quite brief. Relying on a Ninth Circuit precedent that had distinguished the terms “identification document” and “means of identification,” the court summarily concluded that “a United
In short, the point of Application Note 2 is tо avoid counting the same offense conduct twice for purposes of sentence enhancement when a conviction for aggravated identity theft is in the mix. The mandatory two-year consecutive sentence under
Accordingly, it was error to apply the enhancement. We nоte in closing that although the district court imposed a below-guidelines sentence on the conspiracy count, the government has not argued that the error in calculating the guidelines range was harmless. See United States v. Zahursky, 580 F.3d 515, 527 (7th Cir. 2009) (explaining that the government must establish that a sentencing error was harmless). We therefore VACATE Zheng‘s sentence and REMAND for resentencing.
DIANE P. SYKES
CIRCUIT JUDGE