United States v. Abdelshafi

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 08-4884
MOHAMED ADAM ABDELSHAFI,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(3:07-cr-00428-HEH-1)

Argued: December 2, 2009

Decided: January 25, 2010

Before NIEMEYER and AGEE, Circuit Judges,
and John Preston BAILEY, Chief United States
District Judge for the Northern District of West Virginia,
sitting by designation.

Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Niemeyer and Judge Bailey joined.

COUNSEL

ARGUED: John Britton Russell, Jr., DURRETTEBRAD-
SHAW, PLC, Midlothian, Virginia, for Appellant. Joseph
2 UNITED STATES v. ABDELSHAFI
Errington Atkinson, OFFICE OF THE ATTORNEY GEN-
ERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON
BRIEF: Dana J. Boente, Acting United States Attorney,
Alexandria, Virginia, Richard D. Cooke, Assistant United
States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.

OPINION

AGEE, Circuit Judge:

Mohamed Adam Abdelshafi was convicted in a bench trial
in the Eastern District of Virginia on fifteen counts of health
care fraud, in violation of 18 U.S.C. § 1347, and two counts
of aggravated identity theft, in violation of 18 U.S.C.
§ 1028A, and sentenced to sixty-two months’ imprisonment.1
On appeal, Abdelshafi does not challenge his convictions for
health care fraud, but contends the district court erred on two
grounds. First, Abdelshafi contends the Government’s evi-
dence was insufficient to establish his guilt of aggravated
identity theft, as a matter of law, because the Government
failed to prove that he used Medicaid patients’ identifying
information "without lawful authority." 18 U.S.C.
§ 1028A(a)(1). Second, Abdelshafi argues that his sentence
on the health-care-fraud counts should be vacated because he
should not have received a two-level, offense-level enhance-
ment for abuse of trust. See U.S.S.G. § 3B1.3. For the reasons
that follow, we affirm the judgment of the district court.
1
The district court imposed concurrent, thirty-eight-month sentences on
the fifteen health-care-fraud counts. Separately, the court imposed twenty-
four month sentences on the two aggravated-identity-theft counts, to run
concurrently with each other and consecutive to Abdelshafi’s sentence on
the health-care-fraud counts. See 18 U.S.C. §§ 1028A(b)(2) & (4).
 UNITED STATES v. ABDELSHAFI 3
I. Background

Although the parties vigorously contest how the law applies
to the essential facts of this case, those facts are not in dispute.
Virginia Premier Health Plan ("Virginia Premier"), a health
maintenance organization, contracts with the Virginia Depart-
ment of Medical Assistance Services to provide medical ser-
vices — including medical transportation services — to
Medicaid patients in Virginia.2 Some medical transportation
services are provided directly by Virginia Premier, while oth-
ers are contracted to third-party vendors. Abdelshafi owned
and operated one such third-party vendor, Shafi Medical
Transportation ("SMT").

Virginia Premier contracted with SMT to provide medical
transportation to some of its members. Typically, Virginia
Premier would send SMT a daily trip log, which included
patients’ identifying information, contact information, and trip
details. Importantly, the patient’s identifying information
included that person’s Medicaid identification number. The
data in these trip logs served as SMT’s direction to transport
patients and to bill Virginia Premier. For example, each hand-
written claim form Abdelshafi submitted on behalf of SMT
included the patient’s name, date of birth, Medicaid identifi-
cation number, date of service, pick-up and drop-off loca-
tions, and number of miles traveled. Virginia Premier would
then pay SMT based on such factors as the mileage traveled,
driver’s wait time, whether wheelchair transportation was pro-
vided, and whether transportation was provided outside of
normal business hours, all as submitted by Abdelshafi.

SMT’s billing practices came under suspicion after Vir-
ginia Premier discovered that several claim forms Abdelshafi
submitted contained substantially inflated mileage amounts.
2
The Virginia Department of Medical Assistance Services administers
Virginia’s Medicaid program. See HCMF Corp. v. Allen, 238 F.3d 273,
275 (4th Cir. 2001).
4 UNITED STATES v. ABDELSHAFI
The ensuing investigation by state and federal authorities
revealed that Abdelshafi not only inflated mileage amounts,
but also submitted claim forms for trips that did not, in fact,
occur. Investigators concluded these billing practices allowed
Abdelshafi to collect at least $308,329.00 in fraudulent pay-
ments.

At trial, Abdelshafi argued in a motion for acquittal that he
could not be guilty of aggravated identity theft because he did
not use Medicaid patients’ identifying information "without
lawful authority." 18 U.S.C. § 1028A(a)(1). Abdelshafi con-
tended that since Virginia Premier specifically furnished him
with patients’ identifying information for use in SMT’s bill-
ing, he was in lawful possession of the Medicaid identifica-
tion numbers and other identifying information. In
Abdelshafi’s view, "excessive use" of that legitimately
obtained identifying information "over and above" what was
authorized by Virginia Premier did not constitute a use "with-
out lawful authority." Joint Appendix ("J.A.") at 384. Abdel-
shafi argued that to be a use "without lawful authority" an
individual must "try[ ] to take someone else’s identity and
pretend to be that person or . . . pretend that they have been
providing services for that person." Id.

The district court considered the matter and ruled that the
aggravated-identity-theft statute "does not require that" anoth-
er’s identifying information "be stolen" or misappropriated.
Id. at 394. Further, the court read 18 U.S.C. § 1028A(a)(1) to
proscribe the use of another "person’s identity for any unlaw-
ful purpose[ ]." Id. at 395.

The Court is of the opinion that reading the statute
over, it indicates that it is unlawful to use a person’s
identity for any unlawful purposes, and that it’s the
use of it that is important. They may have the author-
ity to have the identification for one purpose but yet
may not use it for another unlawful purpose.
 UNITED STATES v. ABDELSHAFI 5
This situation is the latter. There was no authority
to use the identity of either of these two individuals
for the purpose of filing a false medical claim.

Id. at 394-95.

At sentencing, Abdelshafi also objected to a proposed two-
level enhancement of his Guidelines offense level on the
health-care-fraud counts for abusing a position of trust. See
U.S.S.G. § 3B1.3. First, Abdelshafi maintained that his rela-
tionship with Virginia Premier consisted of a mere "ordinary
commercial contract" and thus did not involve a position of
trust. J.A. at 418. Second, focusing on the limited services
SMT provided, Abdelshafi argued that he did not possess the
"significant amount of discretion" necessary to support such
an enhancement. Id.

The district court determined that the appropriate inquiry
turned on "the total discretion" Abdelshafi possessed "with
respect to the victim." Id. at 424. Abdelshafi, in the district
court’s view, "exercise[d] discretion" in recording "how many
miles that he drove, the time of day, [and] the type of trans-
portation" in what was "somewhat of a self-policing relation-
ship" in regard to billing Virginia Premier. Id. at 427. In
addition, Abdelshafi’s discretion in this regard occurred in the
context "of providing Medicaid services" and clearly involved
"compensat[ion] from Medicaid funds." Id. at 426. The dis-
trict court consequently overruled Abdelshafi’s objection and
increased his offense level by two levels for abusing a posi-
tion of trust.

II. Analysis

On appeal, Abdelshafi reasserts these arguments in con-
tending that the district court erred in denying his motion for
acquittal on the aggravated identity theft counts and in impos-
ing a Guidelines enhancement for abuse of trust. "We review
de novo a district court’s denial of a motion, made pursuant
6 UNITED STATES v. ABDELSHAFI
to Rule 29 of the Federal Rules of Criminal Procedure, for
judgment of acquittal." United States v. Perkins, 470 F.3d
150, 160 (4th Cir. 2006). Similarly, we "review de novo the
district court’s legal interpretation of what constitutes ‘a posi-
tion of trust’ under [U.S.S.G.] § 3B.3," but our review of the
district court’s "factual findings" is only "for clear error."
United States v. Ebersole, 411 F.3d 517, 535-36 (4th Cir.
2005). We have jurisdiction over this appeal under 28 U.S.C.
§ 1291.

A. Aggravated Identity Theft

The aggravated-identity-theft statute, 18 U.S.C. § 1028A,
in pertinent part reads as follows: "Whoever, during and in
relation to any felony violation enumerated in subsection (c),
knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person shall, in
addition to the punishment provided for such felony, be sen-
tenced to a term of imprisonment of 2 years." 18 U.S.C.
§ 1028A(a)(1). This mandatory two-year sentence must run
consecutive to "any other term of imprisonment imposed on
the person under any other provision of law." Id.
§ 1028A(b)(2).

To establish a violation of § 1028A(a)(1), the Government
must prove the defendant (1) knowingly transferred, pos-
sessed, or used, (2) without lawful authority, (3) a means of
identification of another person, (4) during and in relation to
a predicate felony offense.3 See 18 U.S.C. § 1028A(a)(1); see
also United States v. Stephens, 571 F.3d 401, 404-405 (5th
Cir. 2009); United States v. Hurtado, 508 F.3d 603, 606-07
(11th Cir. 2007), abrogated in part on other grounds by
3
For purposes of § 1028A(a)(1), a "means of identification" is 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); see also United States v. Mitchell, 518 F.3d 230, 234-35 (4th
Cir. 2008).
 UNITED STATES v. ABDELSHAFI 7
Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009).
Abdelshafi’s convictions for health care fraud qualified as
predicate felony offenses under 18 U.S.C. § 1028A(c)(1).

The argument on appeal relates only to the second element
of a § 1028A(a)(1) offense, as Abdelshafi maintains that his
use of Medicaid patients’ identifying information was not
"without lawful authority." In order to use the identification
of another without lawful authority, Abdelshafi contends that
a defendant must "misappropriat[e] or "misrepresent[ ] . . .
someone’s identity or identifying information." Opening Brief
at 16. Because he "did not steal or otherwise unlawfully
obtain," id. at 20, Medicaid patients’ identifying information
or "misrepresent[ ] . . . his own or some other person’s iden-
tity," id. at 22, Abdelshafi argues he did not commit aggra-
vated identity theft.

When engaging in statutory interpretation, we "first and
foremost strive to implement congressional intent by examin-
ing the plain language of the statute." United States v. Pas-
saro, 577 F.3d 207, 213 (4th Cir. 2009). "[A]bsent ambiguity
or a clearly expressed legislative intent to the contrary," we
thus give a statute its "plain meaning." United States v. Bell,
5 F.3d 64, 68 (4th Cir. 1993). A statute’s plain meaning is
determined by reference to its words’ "ordinary meaning at
the time of the statute’s enactment." United States v. Sim-
mons, 247 F.3d 118, 122 (4th Cir. 2001). We remain mindful
that in "interpreting the plain language of a statute, we give
the terms their ordinary, contemporary, common meaning,
absent an indication Congress intended" the statute’s language
"to bear some different import." Stephens ex rel. R.E. v.
Astrue, 565 F.3d 131 (4th Cir. 2009) (quotations omitted).

As the Supreme Court noted in its discussion of
§ 1028A(a)(1) in Flores-Figueroa v. United States, 129 S. Ct.
1886 (2009), "[n]o special context is present here." 129 S. Ct.
at 1891. Our analysis accordingly focuses on the statute’s
plain text. We agree with the Eleventh Circuit that "[n]othing
8 UNITED STATES v. ABDELSHAFI
in the plain language of the statute requires that the means of
identification" at issue "must have been stolen" — or as
Abdelshafi characterizes the point "misappropriated" — "for
a § 1028A(a)(1) violation to occur." Hurtado, 508 F.3d at
607. Consequently, "strong textual reasons" support our rejec-
tion of Abdelshafi’s version of the statute’s meaning. Flores-
Figueroa, 129 S. Ct. at 1890.

The Eleventh Circuit in Hurtado aptly stated the pertinent
point: "For sure, stealing and then using another person’s
identification would fall within the meaning of ‘without law-
ful authority.’ However, there are other ways someone could
possess or use another person’s identification, yet not have
‘lawful authority’ to do so." 508 F.3d at 607. For example, in
this case, Abdelshafi came into lawful possession, initially, of
Medicaid patients’ identifying information and had "lawful
authority" to use that information for proper billing purposes.
He did not have "lawful authority," however, to use Medicaid
patients’ identifying information to submit fraudulent billing
claims. We thus find no textual basis in the statute for Abdel-
shafi’s assertion that identifying information must be stolen or
"misappropriated" to be used "without lawful authority."4

Section § 1028A(a)(1)’s "broader context" further supports
our conclusion that a person need not "misappropriate" anoth-
er’s identity to use it "without lawful authority." Passaro, 577
F.3d at 213. As noted in Hurtado, 18 U.S.C. § 1028 — the
4
The only language in § 1028A that could support Abdelshafi’s argu-
ment is the statute’s title of "Aggravated identity theft." 18 U.S.C.
§ 1028A (emphasis added). Abdelshafi wisely does not press this point to
support his argument, as it is well established that "‘the title of a statute
cannot limit the plain meaning of [its] text.’" United States v. Buculei, 262
F.3d 322, 331 (4th Cir. 2001) (quoting Pa. Dep’t of Corr. v. Yeskey, 524
U.S. 206, 212 (1998)). Neither does Abdelshafi argue that the plain lan-
guage of § 1028(a)(1) is ambiguous. We therefore agree with the Hurtado
Court that "we need not consider the title of § 1028(A) (‘Aggravated Iden-
tity Theft’) because the phrase ‘without lawful authority’ in § 1028A(a)(1)
is plain and unambiguous." 508 F.3d at 608 n.6.
 UNITED STATES v. ABDELSHAFI 9
section preceding § 1028A — "enumerates eight identity-
fraud violations." 508 F.3d at 607-08. Two of these violations
specifically require that an identification document be "stolen
or produced without lawful authority." 18 U.S.C.
§§ 1028(a)(2) & (6) (emphasis added); see also Hurtado, 508
F.3d at 607.

If Congress had wished to include a misappropriation ele-
ment in the aggravated-identity-theft statute it stands to reason
that it would have included language in § 1028A(a)(1) similar
to that used in the immediately preceding section. As the
Hurtado Court explained:

If Congress intended to provide for an enhanced pen-
alty only when an identification was stolen by a
defendant and then used in the commission of
another crime (such as passport fraud), it easily
could have used the words "stolen" or "theft" in
§ 1028A(a)(1). The fact that Congress used the word
"stolen" in § 1028, but chose the broader phrase
"without lawful authority" in § 1028A(a)(1) plainly
indicates that Congress intended to prohibit a wider
range of activities in § 1028A(a)(1) than just theft.

508 F.3d at 608. The fact that Congress did not include such
language in § 1028A(a)(1) supports our conclusion that the
aggravated-identity-theft statute does not contain a misappro-
priation element: "‘[W]here Congress includes particular lan-
guage in one section of a statute but omits it in another section
of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.’" Dean v. United States, 129 S. Ct. 1849, 1854
(2009) (quoting Russello v. United States, 464 U.S. 16, 23
(1983)) (alteration in original); see also Hurtado, 508 F.3d at
608.

Contrary to Abdelshafi’s assertions, the aggravated-
identity-theft statute’s use of the phrase "without lawful
10 UNITED STATES v. ABDELSHAFI
authority" is "broad and unambiguous." United States v. Mon-
santo, 491 U.S. 600, 609 (1989); see also Hurtado, 508 F.3d
at 608 n.6. The statute prohibits an individual’s knowing use
of another person’s identifying information without a form of
authorization recognized by law. See United States v. Hines,
472 F.3d 1038, 1039-40 (8th Cir. 2007). While Abdelshafi
had authority to possess the Medicaid identification numbers,
he had no authority to use them unlawfully so as to perpetuate
a fraud. We, therefore, decline to narrow the application of
§ 1028A(a)(1) to cases in which an individual’s identity has
been misrepresented, as it would clearly be inappropriate for
us "to adopt an interpretation[ ] not supported by the plain text
of the statute." United States v. Pressley, 359 F.3d 347, 351
(4th Cir. 2004).5

Our conclusion in this regard is not altered by Abdelshafi’s
representation that "every single incident of health care fraud
by a provider would also constitute aggravated identity theft"
if his conduct is deemed to violate the statute.6 Opening Brief
5
We similarly reject Abdelshafi’s contention that to use another per-
son’s identifying information "‘without lawful authority’ there must be no
authority for the basic, underlying use to which it is put," i.e., the statute
"is not meant to apply to instances where the basic use is clearly autho-
rized but the authorization is then abused or used excessively." Opening
Brief at 22. Section § 1028A(a)(1) does not distinguish between "basic
uses" and "excessive uses" of another person’s identifying information.
Rather, the statute applies to any knowing use of another’s identifying
information performed without a form of authorization recognized by law.
6
During oral argument in this case, Abdelshafi’s counsel argued that
§ 1028A(a)(1)’s separate use and predicate felony elements necessitate
that the use without lawful authority for which a defendant is charged
under § 1028A(a)(1) be "different than the predicate act use." Counsel
contended that otherwise the statute’s use language would be "superflu-
ous." Because this argument was not presented in Abdelshafi’s opening
brief, it has been waived. See United States v. Jones, 308 F.3d 425, 427
n.1 (4th Cir. 2002). Even if we were to consider this argument, we would
conclude that it lacked merit. Section § 1028A(a)(1) establishes an
enhanced penalty for those who knowingly transfer, possess, or use
another person’s identifying information "during and in relation to" a
 UNITED STATES v. ABDELSHAFI 11
at 21. Section 1028A(a)(1) provides an enhanced penalty for
those who unlawfully use another’s identifying information
during and in relation to a broad array of predicate offenses,
including crimes related to the "theft of government property"
and "fraud," as well as offenses involving "unlawful activities
related to passports, visas, and immigration." Flores-
Figueroa, 129 S. Ct. at 1888-89. That a single type of health
care fraud related to provider payments — a subset of crimes
involving fraud and theft — may fall within the statutory
ambit is not particularly noteworthy.

"Even if we were more persuaded than we are by [this] pol-
icy argument[ ], the result in this case would be unchanged.
Resolution of the pros and cons of whether a statute should
sweep broadly or narrowly is for Congress." United States v.
Rodgers, 466 U.S. 475, 484 (1984). We adhere to the princi-
ple that "[f]ederal crimes are defined by Congress, and so
long as Congress acts within its constitutional power in enact-
ing a criminal statute, this Court must give effect to Congress’
expressed intention concerning the scope of conduct prohib-
ited." United States v. Kozminski, 487 U.S. 931, 939 (1988).
Congress’ decision to impose additional punishment on those
who use another’s identifying information to submit fraudu-
lent claims for payment for health-care related services "is not
so ‘absurd or glaringly unjust’ as to lead us to question
whether Congress actually intended what the plain language
of [§ 1028A(a)(1)] so clearly imports." Rodgers, 466 U.S. at
484 (quoting Sorrells v. United States, 287 U.S. 435, 450
(1932)) (internal citation omitted).

wide array of predicate offenses. 18 U.S.C. § 1028A(a)(1) (emphasis
added); see also id. § 1028A(c). Although the same underlying transfer,
possession, or use may occasionally support both a defendant’s predicate
felony and a § 1028A(a)(1) enhancement, on other occasions a different
predicate act will serve as the basis for the enhancement. No more need
be said to show that our interpretation does not render the statute’s "use"
language superfluous. See Davis v. Mich. Dep’t of Treasury, 489 U.S. 803,
809 (1989) (recognizing that "the words of a statute must be read in their
context and with a view to their place in the overall statutory scheme").
12 UNITED STATES v. ABDELSHAFI
After all, the use of another person’s means of identifica-
tion makes a fraudulent claim for payment much harder to
detect and, therefore, more likely to succeed. It also often
casts undue suspicion on the individuals whose identifying
information is misused and infringes their interest in keeping
personal information private and secure. These factors pro-
vide ample justification for the increased punishment of those
who use another’s identifying information in fraudulently bill-
ing for medical services. A literal reading of the unambiguous
terms of the statute, "in light of ordinary principles of statu-
tory interpretation," therefore, will not produce "absurd
results" or "thwart the obvious purpose of the statute."7 United
States v. Morison, 844 F.2d 1057, 1064 (4th Cir. 1988) (quo-
tations omitted). Consequently, our "inquiry is complete" and
"there is no need to consult legislative history nor to look to
the ‘rule of lenity.’"8 Id. (quotations omitted). We thus con-
clude that the district court did not err in ruling that Abdelsha-
fi’s conduct was "without lawful authority" and violated
§ 1028A(a)(1).

B. Abuse of Trust Enhancement

We now turn to Abdelshafi’s claim that the district court
erred in imposing a two-level enhancement to his Guidelines’
7
We note that Abdelshafi has failed to refer us to any portion of
§ 1028A(a)(1)’s legislative history that suggests our interpretation of the
statute is "‘demonstrably at odds with the intentions of its drafters.’" Mori-
son, 844 F.2d at 1064 (quoting United States v. Locke, 471 U.S. 83, 93
(1985)).
8
At oral argument, Abdelshafi’s counsel pointed us to the rule of lenity
and the interpretative canon that criminal statutes must be strictly con-
strued. We note that the rule of lenity does not apply in this case because
§ 1028A(a)(1)’s text is unambiguous. See United States v. Helem, 186
F.3d 449, 455 (4th Cir. 1999). Furthermore, "[t]he canon in favor of strict
construction [of criminal statutes] is not an inexorable command to over-
ride common sense and evident statutory purpose. . . . [I]t is satisfied if
the [statute’s] words are given their fair meaning in accord with the mani-
fest intent of the lawmakers." United States v. Moore, 423 U.S. 122, 145
(1975) (quoting United States v. Brown, 333 U.S. 18, 25-26 (1948)).
 UNITED STATES v. ABDELSHAFI 13
offense level for abuse of trust. See U.S.S.G. § 3B1.3. On
appeal, Abdelshafi argues that he "had no relationship with
Medicaid and was given no discretion by Virginia Premier.
Therefore the position of trust enhancement is inapplicable."
Opening Brief at 26. For the following reasons, we disagree.

Section 3B1.3 of the United States Sentencing Guidelines
provides that a defendant’s offense level should be increased
by two levels "[i]f the defendant abused a position of public
or private trust, or used a special skill, in a manner that signif-
icantly facilitated the commission or concealment of the
offense." Accordingly, the enhancement applies if "the defen-
dant abused a position of trust and that abuse significantly
contributed to the commission or concealment" of the under-
lying offense. United States v. Akinkoye, 185 F.3d 192, 203
(4th Cir. 1999). Whether a defendant held a position of trust
must be assessed from the perspective of the victim. See
United States v. Bollin, 264 F.3d 391, 415 (4th Cir. 2001).

In evaluating application of the enhancement, we generally
weigh three factors to determine whether a particular defen-
dant abused a position of trust, including (1) whether the
defendant had special duties or special access to information
not available to other employees, (2) the extent of the discre-
tion the defendant possessed, and (3) whether the defendant’s
actions indicate that he is more culpable than others in similar
positions who engage in criminal acts. See Akinkoye, 185 F.3d
at 203. In this case, however, resort to the traditional balanc-
ing test proves unnecessary. Application note 2(B) to § 3B1.3
specifies that an abuse-of-trust enhancement applies,
"[n]otwithstanding Application Note 1, or any other provision
of this guideline," when the defendant "exceeds or abuses the
authority of his or her position in order to obtain, transfer, or
issue unlawfully, or use without authority, any means of iden-
tification."

The facts of this case fall plainly within the scope of appli-
cation note 2(B). Abdelshafi abused the authority of his posi-
14 UNITED STATES v. ABDELSHAFI
tion in using Medicaid patients’ identifying information,
without authority, to file fraudulent claims for payment.
Application note 2(B) cites as an example of an abuse of trust
under the guideline "a hospital orderly who exceeds or abuses
the authority of his or her position by obtaining or misusing
patient identification information from a patient chart."
U.S.S.G. § 3B1.3 application note 2(B)(ii). Abdelshafi, quite
similarly, abused the authority of his position in misusing the
patient identification information listed on trip logs he
received from Virginia Premier.

Abdelshafi’s arguments in regard to his lack of discretion
and fiduciary relationship with Medicaid are beside the point
in the face of the plain reading of application note 2.9 We,
therefore, do not address Abdelshafi’s arguments in regard to
either application note 1 or our precedents regarding its scope.10

For present purposes, it is sufficient to say that Abdelshafi
enjoyed a position of trust in regard to patients’ identifying
information comparable to that of a hospital orderly in the
application note (2)(B) example. This conclusion remains
valid regardless of whether we consider the victim in this case
to be Medicaid, Virginia Premier, the patients whose identify-
ing information Abdelshafi misused, or all of them. Further-
more, Abdelshafi’s abuse of trust significantly facilitated his
9
The Guidelines’ "policy statements and commentary are generally enti-
tled to treatment as authoritative guides with controlling weight, unless
[they are] inconsistent with a statute or the Sentencing Guidelines them-
selves." United States v. Wiley-Dunaway, 40 F.3d 67, 71 (4th Cir. 1994),
superseded on other grounds as recognized by United States v. Mosley,
200 F.3d 218, 223-24 (4th Cir. 1999). Accordingly, we give controlling
weight to § 3B1.3’s application note 2.
10
We recognize that the parties have not approached the abuse-of-trust
enhancement from the perspective of application note 2(B), but "[w]hen
an issue or claim is properly before the court, the court is not limited to
the particular legal theories advanced by the parties, but rather retains the
independent power to identify and apply the proper construction of gov-
erning law." Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991).
 UNITED STATES v. ABDELSHAFI 15
commission of aggravated identity theft, as it granted him
access to the patient identifying information necessary to file
fraudulent billing claims. We accordingly uphold the district
court’s decision to impose an abuse-of-trust enhancement. See
United States v. McHan, 386 F.3d 620, 623 (4th Cir. 2004)
(recognizing we are entitled to affirm on any ground sup-
ported by the record, including theories not relied upon by the
district court).

III. Conclusion

For the above-stated reasons, we affirm the judgment of the
district court.

AFFIRMED