Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1624
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT ALFANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Lipez and Howard,
Circuit Judges.
David Shaughnessy on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.
April 2, 2008
Per Curiam. This sentencing appeal raises a single
issue--whether the district court plainly erred in concluding that,
in committing bank fraud, defendant "used a[] means of
identification unlawfully to produce or obtain any other means of
identification" within the meaning of USSG § 2B1.1(b)(10)(C)(i),
and therefore increasing his offense level and resulting guidelines
sentencing range.1 As defendant acknowledges, because he did not
raise this issue below, our review is for plain error only.2
Finding none, we affirm.
Defendant makes a three-pronged attack on the
enhancement. Only the first prong is developed in any depth in
defendant's opening brief. Assuming that the second two prongs
nevertheless warrant appellate review, but see United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding that undeveloped
arguments are waived), they do not rise to the level of plain
error.
Defendant's first argument is that he used the name of a
fictitious person to cash one of the counterfeit checks that was
1
With the challenged enhancement, defendant's guidelines
sentencing range was 24 to 30 months, and the court sentenced
defendant to the bottom of that range. Without the enhancement,
the range would be 9 to 15 months.
2
The government argues that defendant not merely forfeited
this argument but affirmatively waived it by not objecting to the
enhancement at sentencing and assuming that it applied in arguing
for a below-guidelines sentence. Such conduct, however, amounts to
a forfeiture, not a waiver. See United States v. Rivera, 448 F.3d
82, 86 n.1 (1st Cir. 2006).
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the subject of the indictment.3 It is true that the phrase "means
of identification" as used in section 2B1.1(b)(10)(C)(i) includes
only means of identification of "an actual (i.e., not fictitious)
individual." USSG § 2B1.1., comment. (n.9(A)). However, the means
used here included not only the fictitious name of one of the
payees, but also the account number4 of Toys R Us and the payor
name of Atlantic Coast Contractors, both actual entities.5 The
fact that the name of a fictitious person was also used on one of
the checks is immaterial since the applicable definition of "means
of identification" includes "any name or number that may be used,
alone or in conjunction with any other information." 18 U.S.C. §
1028(d)(7) (emphasis added). Similarly, the fact that defendant
3
The indictment, to which defendant pled guilty, charged him
with obtaining money in the custody of a federally insured bank,
the Bank of New York, by means of false and fraudulent pretenses,
and aiding and abetting his wife to do so, all in violation of 18
U.S.C. § 1344. Those pretenses, which defendant admitted to,
involved creating and using counterfeit checks bearing the account
number of Toys R Us and the payor name of Atlantic Coast
Construction.
4
Bank account numbers are clearly "means of identification."
See USSG § 2B1.1, comment. (n.9(A)) (incorporating the definition
contained in § 1028(d)(7)); 18 U.S.C. § 1028(d)(7)(C) (defining
means of identification to include "any . . . unique electronic
identification number . . . or routing code"); see also United
States v. Scott, 448 F.3d 1040, 1045 (8th Cir. 2006).
5
In his reply brief, defendant argues, for the first time,
that those entities were not "individuals" within the meaning of
application note 9(A) or 18 U.S.C. § 1028(d)(7). We therefore do
not consider that question here. See United States v. Eirby, 515
F.3d 31,37 n.4 (1st Cir. 2008) (deeming arguments raised for the
first time in appellant's reply brief to be waived).
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also used a fake driver's license purporting to identify him as
Steven Chapman, is equally immaterial. In fact, at the change of
plea hearing, the prosecution expressly disavowed any reliance on
defendant's production or use of that license.
Defendant's second argument focuses on the requirement
that the means of identification used must be of persons "other
than the defendant" himself. USSG § 2B1.1, comment. (n.9(A)). As
already indicated, the means of identification used here were of
two entities--Toys R Us and Atlantic Coast Contractors--other than
the defendant himself. So that argument clearly fails.
Defendant's third argument--if preserved and further
developed--might have presented a closer question. That argument--
in enhanced form--appears to be that section 2B1.1(b)(10)(C)(i)
requires that two means of identification be used, one to create
the other, and that, here, the second means is absent. In other
words, even if defendant used "means of identification" to produce
the counterfeit checks, those checks were not "another means of
identification," like a credit card, a driver's license, or a bank
loan, the examples used in the background note to section 2B1.1.
What constitutes "another means of identification" for
this purpose is far from clear under the guidelines themselves or
existing caselaw. This court has never considered the question.
In a case factually similar to this one, one circuit concluded that
the enhancement applied to using other names and account numbers to
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produce counterfeit checks. Scott, 448 F.2d at 1045. Other
jurists have reached differing conclusions while agreeing that the
"convoluted language" of the guideline and commentary is difficult
to parse. See United States v. Melendrez, 389 F.3d 829, 831-37
(9th Cir. 2004); id. (dissenting opinion) at 837-40; see also
United States v. Newsome, 439 F.3d 181, 187 n.7 (3d Cir. 2006)
(declining to follow Melendrez). Given that state of the law, we
cannot say that any error in applying that enhancement here was
sufficiently "plain" to warrant correction in the absence of
preservation. United States v. Goodhue, 486 F.3d 52, 58 (1st Cir.
2007). As we have previously explained, "[t]he plain error
doctrine is premised on the assumption that parties must take
responsibility for protecting their legal rights and, accordingly,
that only the clearest and most serious of forfeited errors should
be corrected on appellate review." United States v. Padilla, 415
F.3d 211, 223-24 (1st Cir. 2005) (en banc). The errors alleged
here are not of that clarity or caliber.
Affirmed.
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