Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-9-2006

USA v. Newsome
Precedential or Non-Precedential: Precedential

Docket No. 04-3292




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                                    PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 04-3292


          UNITED STATES OF AMERICA

                          v.

      ALRAHMAN MUHAMMAD NEWSOME,

                                   Appellant



    On Appeal from the United States District Court
             for the District of New Jersey
                (D.C. No. 03-cr-00690)
       District Judge: Hon. William G. Bassler


             Argued on January 18, 2006

BEFORE: ROTH, FUENTES and BECKER, Circuit Judges

                (Filed: March 9, 2006)
Mark A. Berman, Esquire
Michael A. Baldassare, Esquire (ARGUED)
Gibbons, Del Deo, Dolan, Griffinger & Vecchione
One Riverfront Plaza
Newark, NJ 07102

              Counsel for Appellant


Christopher J. Christie, Esquire
United States Attorney
George S. Leone, Esquire
Chief, Appeals Division
Norman J. Gross, Esquire (ARGUED)
Assistant U.S. Attorney
970 Broad Street
Newark, NJ 02102-2535

              Counsel for Appellee




                OPINION OF THE COURT



ROTH, Circuit Judge:

       The issue in this criminal sentencing appeal is whether
the creation of forged driver’s licenses and employer IDs for the

                               -2-
purpose of making fraudulent bank withdrawals qualifies for the
two-level sentencing enhancement of U.S.S.G. §
2B1.1(b)(9)(C)(i) (2003) for “the unauthorized transfer or use of
any means of identification unlawfully to produce or obtain any
other means of identification.”1 For the reasons below we hold
that it does and will affirm the District Court’s judgment of
sentence.

I. Factual and Procedural Background

       Appellant Alrahman Muhammad Newsome conspired to
make fraudulent withdrawals from customer accounts at Fleet
Bank, an FDIC-insured bank. One of Newsome’s co-
conspirators, Annur Hamilton, had obtained personal contact
and account information of Fleet customers from an unidentified
Fleet employee. Using this information, the conspirators
produced fake driver’s licenses, employee identification cards,
and completed pre-printed withdrawal slips,2 which were then
used by two of the co-conspirators, Evelyn Rivera and Elaine
Daniels,3 to make withdrawals from Fleet branches. Although


       1
         All references to the Sentencing Guidelines are to the
November 5, 2003, version.        U.S.S.G. § 2B1.1(b)(9)(C)(i)
(2003) is currently codified as § 2B1.1(b)(10)(C)(i) (2005).
       2
        These withdrawal slips were the type normally included
in check books and included the fraud victims’ names and bank
account numbers.
       3
         Rivera and Daniels entered guilty pleas, United States
v. Rivera, Crim. No. 03-59; United States v. Daniels, Crim. No.

                               -3-
it is unclear who actually manufactured the fake identification
cards, Newsome and Hamilton contributed to the effort by
taking digital photographs of Rivera and Daniels. These
photographs were then placed on forged identification cards,
which contained the name and personal information of the fraud
victims, but displayed the photograph of Rivera or Daniels.
Newsome supplied the fake cards to Rivera and Daniels and
served as their driver on the fraudulent forays to various Fleet
branches. Before Newsome and his co-conspirators were
apprehended, they managed to withdraw $135,340.00 that law
enforcement officials were unable to recover. Newsome pled
guilty to one count of conspiracy to defraud the United States (in
its role as insurer of deposits at Fleet) in violation of 18 U.S.C.
§ 371. The District Court sentenced Newsome to a 27-month
term of imprisonment and ordered restitution to Fleet.

       Newsome’s plea bargain included a provision that the
United States Sentencing Guidelines would apply. Newsome’s
sentence was made within the range of 24-30 months suggested
by the Sentencing Guidelines for an Offense Level of seventeen
and a Category I Criminal History. Fifteen of the seventeen
Offense Levels found by the District Court are undisputed.4


03-454, but neither has appealed. At the time of Newsome’s
sentencing, Hamilton had not been apprehended.
       4
         Newsome’s Base Offense Level under the Sentencing
Guidelines was six because the maximum term of imprisonment
for conspiracy to commit bank fraud under 18 U.S.C. § 371 is
five years. U.S.S.G. § 2B1.1(a)(2). The District Court
determined that the losses caused by the conspiracy were more

                                -4-
        The issue in the case stems from the District Court’s
determination that a two-level upward Offense Level adjustment
was warranted under U.S.S.G. § 2B1.1(b)(9)(C)(i), for “the
unauthorized transfer or use of any means of identification
unlawfully to produce or obtain any other means of
identification.” Without the upward adjustment under U.S.S.G.
§ 2B1.1(b)(9)(C)(i), Newsome’s Offense Level would be fifteen
so the suggested sentencing range would have been 18-24
months.5 Newsome objected to the upward adjustment as a
matter of law and has appealed the District Court’s ruling on




than $120,000, but less than $200,000, which increased
Newsome’s Offense Level by ten. U.S.S.G. § 2B1.1(b)(1)(F).
The District Court increased Newsome’s Offense Level by two
pursuant to U.S.S.G. § 3B1.1(c) for being an organizer, leader,
manager, or supervisor in a criminal activity, but decreased it by
two for acceptance of responsibility under U.S.S.G. § 3E1.1(a)
and then decreased it by a further one for not forcing the
government to prepare for trial under U.S.S.G. § 3E1.1(b).
Thus, without the § 2B1.1(b)(9)(C)(i) enhancement, Newsome’s
Offense Level was fifteen.
       5
          While we note that Newsome’s sentence was still
within the statutory maximum of 60 months, and no claim has
been raised that the District Court treated the Guidelines as
mandatory, rather than advisory, the finding of an enhancement
under the Guidelines could have increased the sentence meted
out by the District Court.

                               -5-
that issue.6

       The District Court exercised subject matter jurisdiction
under 18 U.S.C. § 3231. We have jurisdiction over Newsome’s
appeal under 28 U.S.C. § 1291. We undertake a plenary review
of the District Court’s interpretation of the Sentencing
Guidelines. United States v. Moorer, 

, 167 (3d Cir.
2004).

II. Analysis

       The District Court held that, as a matter of law, Newsome
had illegally used one means of identification to produce
another. We agree.

        U.S.S.G. § 2B1.1(b)(9)(C)(i) calls for a two-level
enhancement for “the unauthorized transfer or use of any means
of identification unlawfully to produce or obtain any other
means of identification.” The phrase “means of identification”
is defined in the Commentary to U.S.S.G. § 2B1.1:

       “Means of identification” has the meaning given that
       term in 18 U.S.C. § 1028(d)(4), except that such means
       of identification shall be of an actual (i.e., not fictitious)
       individual, other than the defendant or person for whose
       conduct the defendant is accountable under U.S.S.G. §
       1B1.3 (Relevant Conduct).


       6
         Newsome’s plea arrangement reserved his the right to
appeal the disputed § 2B1.1(b)(9)(C)(i) sentence enhancement.

                                -6-
Commentary to U.S.S.G. § 2B1.1, Application Note 9(A). In a
case like this, where as part of a plea bargain the defendant has
agreed to be sentenced under the Sentencing Guidelines, we
follow our pre-Booker v.United States, 

(2005),
practice of adhering to the Guidelines Manual’s commentary
“unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 

, 38 (1993).
The referenced definition of 18 U.S.C. § 1028(d)(4) is currently
codified at 18 U.S.C. § 1028(d)(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 . . ..

The Commentary also notes that “‘Produce’ includes
manufacture, design, alter, authenticate, duplicate, or assemble.”
Commentary to § 2B1.1, Application Note 9(A).

        We believe that Newsome’s admitted activity—assisting
in the creation of the fake identification—was within the ambit
of U.S.S.G. § 2B1.1(b)(9)(C)(i). It is uncontested that the fraud
victims’ information—name, date of birth, driver’s license
number, employee identification number, photograph, etc.—is
a “means of identification” under 18 U.S.C. § 1028(d)(7).

                               -7-
Newsome contends, however, that he did not use this means of
identification “to produce or obtain any other means of
identification.” U.S.S.G. § 2B1.1(b)(9)(C)(i) (2003) (emphasis
added). Newsome claims that “means of identification” refers
only to a unique name or number, not the document on which it
is recorded, as identification documents are separately defined
in 18 U.S.C. § 1028(d)(3), which is not incorporated by
reference in U.S.S.G. 2B1.1(b)(9)(C)(i). In support of this
point, Newsome cites United States v. Melendrez, which held
that “[f]or the purposes of the statute, a means of identification
is the identifying name or number of an actual person, not the
document on which such name or number is often placed.” 

, 831 (9th Cir. 2004).

        Newsome, therefore, claims that taking a misappropriated
means of identification—a name or number—and putting it on
a new physical document does not trigger the enhancement
because the new physical document containing the same means
of identification does not constitute another means of
identification. Instead, Newsome argues that what he did was
use an existing means of identification to obtain cash, not to
obtain a new means of identification, like a social security
number or a loan account number.

        Newsome contends that the Commentary to the
Guidelines makes clear that the enhancement should not apply
to him. The Commentary’s Background notes that Congress
wanted additional punishment only for those guilty of
“breeding” identification—using another individual’s name,
social security number, or some other form of identification (the
“means of identification”) to “breed” (i.e., produce or obtain)
new or additional forms of identification. Commentary to
U.S.S.G. § 2B1.1, Background. Newsome argues that he
committed plain vanilla identity theft, not breeding, and should
not be punished for an aggravated form of the offense.


                               -8-
        In support of this claim, Newsome cites Comment 9(C)
to the Guidelines, which provides two examples of when the
enhancement of 2B1.1(b)(9)(C)(i) applies and two examples of
when it does not.         In the two examples of when the
enhancement applies, the means of identification are used to
obtain new identifying numbers–a bank loan number and a
credit card number. In the two examples in which the
enhancement does not apply, the means of identification are
used merely to obtain property. Newsome argues that these
examples show that for the enhancement to apply there must a
means of identification used to obtain a distinct means of
identification, not merely to obtain property.

        We disagree. The phrase “any other means of
identification” in U.S.S.G. § 2B1.1(b)(9)(C)(i) does not mean
“different” as Newsome would read it. Rather, it is a broader
phrase meaning “additional” as evinced by the Commentary’s
definition of “produce” as including “manufacture, design, alter,
authenticate, duplicate, or assemble.” Commentary to § 2B1.1,
Application Note 9(A) (emphasis added). Thus, U.S.S.G. §
2B1.1(b)(9)(C)(i) can be read as requiring the enhancement for
“the unauthorized transfer or use of any means of identification
unlawfully to alter or duplicate or assemble any alternate
hybrid means of identification.” Alteration, duplication, and
assembly are precisely what Newsome did when he took an
existing means of identification, duplicated it, and assembled it
together with a photograph of another person to create an altered
“hybrid” means of identification. We note that “means of
identification” are defined as “any name or number that may be
used, alone or in conjunction with any other information, to
identify a specific individual.” 18 U.S.C. § 1028(d)(7)
(emphasis added). The forged driver’s license and employer ID
had the identity theft victim’s correct information. This
information by itself constituted a means of identification.
When combined with a photograph of Rivera or Daniels it
became a different means of identification—still the victim’s

                               -9-
means of identification but the insertion of Rivera’s or Daniels’
photograph into that means of identification would give Rivera
or Daniels access to the victim’s assets. When a means of
identification is illegally used to produce an altered duplicate
means of identification the sentencing enhancement of U.S.S.G.
§ 2B1.1(b)(9)(C)(i) applies.

       Both the legislative history as related in the Guidelines
and the Guidelines’ examples counsel in favor of meriting the
additional punishment. Section 2B1.1(b)(9)(B)(C) implemented
section 4 of the Identity Theft and Assumption Deterrence Act
of 1998, Pub. L. No. 105-318, 112 Stat. 3007 (1998). The
Background provided by the Commentary to Section 2B1.1
notes that subsection (b)(10)(C):

       . . . focuses principally on an aggravated form of identity
       theft known as “affirmative identity theft” or “breeding”,
       in which a defendant uses another individual’s name,
       social security number, or some other form of
       identification (the “means of identification”) to “breed”
       (i.e., produce or obtain) new or additional forms of
       identification. Because 18 U.S.C. § 1028(d) broadly
       defines “means of identification”, the new or additional
       forms of identification can include items such as a
       driver’s license, a credit card, or a bank loan. This
       subsection provides a minimum offense level of level 12,
       in part because of the seriousness of the offense. The
       minimum offense level accounts for the fact that the
       means of identification that were “bred” (i.e., produced
       or obtained) often are within the defendant’s exclusive
       control, making it difficult for the individual victim to
       detect that the victim’s identity has been “stolen.”

Commentary to U.S.S.G. § 2B1.1, Background (emphasis
added). Congress wanted to provide increased punishment for
identity theft that involved creation of means of counterfeit

                              -10-
identification rather than the plain vanilla type of identity theft
that occurs when person A steals and uses person B’s credit card.
Newsome’s offense involved the very type of harm that
concerned Congress—production of false means of
identification. By changing the original means of identification,
Newsome created a new one. Indeed, the means of
identification produced by Newsome was a driver’s license, a
means of identification specifically mentioned in the
Background to the Guidelines’ Commentary.                     This
multiplication of means of identification is the type of identity
theft that Congress believed deserved greater punishment.

        Newsome’s reliance on the Guidelines’ examples is also
misplaced.        The Guidelines’ examples of when the
enhancement applies are of little guidance in this case.
Newsome attempts to use them as a foil to prove a
contrapositive, that is, if A then B, so if not A, then not B. We
need not elaborate on the fallacy of such logic. It does not
follow that because Newsome did not use the forged driver’s
license and employee identification cards to obtain a new
identification number such as a bank loan or credit card number
that the enhancement is inapplicable.

        Notably, in the two examples in which the enhancement
does not apply, the means of identification are used to obtain
property without alteration or duplication of the means of
identification. Newsome’s strongest case is the example given
in Comment 9(C)(iii)(II), where a signature is forged in order to
cash a stolen check. This example, however, may be
differentiated from Newsome’s activities. A traditional, non-
electronic signature is not a “means of identification.” Only a
name, not the handwriting it is in, may be a “means of
identification.” On a forged check, the fake signature is in the
name of the fraud victim; indeed, it is meant to look like that of
the fraud victim. There is no production of a new or altered
means of identification. Check forging, like using a stolen

                               -11-
credit card to make purchases, is a workaday type of identity
theft.

        By contrast, a fake photograph on a driver’s license is
meant to alter the means of identification, transforming one
means of identification into another hybrid one; this is a
sophisticated type of identity theft that has the same aggravating
characteristics as those laid out in the Commentary Background.
Neither set of examples in the Guidelines deals with the
alteration of an existing means of identification to allow it to
identify another individual; the examples do not resolve
Newsome’s case, much less support his argument.

       Similarly, the caselaw Newsome cites suffers from the
same fallacy as his reliance on the first set of examples in the
Guidelines Commentary. Newsome has not identified any
caselaw that refused to apply the identity theft enhancement
simply because the defendant did not obtain a new identifying
number that differed from the source number. Instead, he cites
cases in which courts have approved the application of the
enhancement when the defendant did obtain a different
identifying number.7

        Finally, we note that even though the hybrid means of
identification displayed the pictures of Newsome’s co-
conspirators, the means of identification produced were of
“actual (i.e., not fictitious) individual[s], other than the
defendant or a person for whose conduct the defendant is
accountable under § 1B1.3 (Relevant Conduct).” 18 U.S.C.
Appx. § 2B1.1. The hybrid products were another means of


       7
          We do not presently adopt the Ninth Circuit’s reading
of “means of identification” in 

. We
leave the question whether “means of identification” can never
be a document itself open for another day.

                              -12-
identification (here a name and number in conjunction with a
photograph) from the original ones and were used to identify a
real person—the fraud victim whose name and personal
information appeared on the documents, albeit with the
photograph of one of Newsome’s co-conspirators.

       By taking a means of identification—the information
from the fraud victim’s driver’s license and employer ID—and
combining that information with a photograph of Daniels or
Rivera, Newsome produced another means of identification—a
means of identification of the victim which, because it bore
Daniels’ or Rivera’s photograph, would give Daniels or Rivera
access to the victim’s assets. This is precisely the type of
behavior for which the sentencing enhancement was intended.
Accordingly, we will AFFIRM the judgment of sentence.




                             -13-