13‐3809‐cr
United States v. Kleiner
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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August Term, 2014
(Submitted: August 26, 2014 Decided: September 2, 2014)
Docket No. 13‐3809‐cr
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UNITED STATES OF AMERICA,
Appellee,
—v.—
CARY LEE KLEINER,
Defendant‐Appellant.
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Before:
WINTER, RAGGI, and CARNEY, Circuit Judges.
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On this appeal from a conviction for bank fraud, defendant contends that a
miscalculation in his Sentencing Guidelines renders his 24‐month prison
sentence procedurally unreasonable. Specifically, defendant contends that his
use of another person’s name and address to create a counterfeit driver’s license,
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which he then presented as his own to the bank victim of his fraud, does not
warrant a two‐level enhancement under U.S.S.G. § 2B1.1(b)(11)(C)(i) for
“unauthorized transfer or use of any means of identification unlawfully to
produce or obtain any other means of identification.” We reject this argument,
following the reasoning applied by this court in United States v. Sash, 396 F.3d
515 (2d Cir. 2005), to construe U.S.S.G. § 2B1.1(b)(11)(C)(ii).
AFFIRMED.
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BARCLAY T. JOHNSON, Research & Writing Attorney (Steven L. Barth,
Assistant Federal Public Defender, on the brief), Federal Public
Defender’s Office, District of Vermont, Burlington, Vermont,
for Defendant‐Appellant Cary Lee Kleiner.
WILLIAM B. DARROW (Gregory L. Waples, on the brief), Assistant
United States Attorneys, for Tristram J. Coffin, United States
Attorney for the District of Vermont, Burlington, Vermont, for
Appellee.
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REENA RAGGI, Circuit Judge:
Cary Lee Kleiner, who pleaded guilty to bank fraud, see 18 U.S.C.
§ 1344(1), appeals from that part of the judgment of conviction entered in the
United States District Court for the District of Vermont (J. Garvan Murtha, Judge)
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as sentenced him to 24 months’ incarceration.1 Kleiner contends that the
sentence is infected by procedural error in the calculation of his Sentencing
Guidelines range. See United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008)
(en banc) (stating that “[a] district court commits procedural error where it . . .
makes a mistake in its Guidelines calculation”). Specifically, Kleiner argues that
his use of another person’s name and address to create a counterfeit driver’s
license that he used in committing the crime of conviction does not warrant a
two‐level enhancement under U.S.S.G. § 2B1.1(b)(11)(C)(i) for “the unauthorized
transfer or use of any means of identification unlawfully to produce or obtain
any other means of identification.” The argument is defeated by the reasoning
this court employed to construe U.S.S.G. § 2B1.1(b)(11)(C)(ii) in United States v.
Sash, 396 F.3d 515 (2d Cir. 2005), which we here conclude applies equally to
U.S.S.G. § 2B1.1(b)(11)(C)(i).
1 Although Kleiner was released from prison on May 15, 2014, his appeal is not
moot because a favorable appellate decision might prompt the district court to
reduce Kleiner’s three‐year term of supervised release. See Levine v. Apker, 455
F.3d 71, 77 (2d Cir. 2006) (holding that case or controversy exists where “district
court might, because of our ruling, modify the length of [defendant’s] supervised
release”).
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I. Background
A. The Crime of Conviction
On March 7, 2012, Cary Lee Kleiner telephoned TD Bank in Montpelier,
Vermont and represented himself to be Richard J. Butler, an actual customer of
the bank. In that role, Kleiner advised a bank representative that he wished to
schedule a cash withdrawal of $74,000 for the following day. A call from the
bank’s security department to the real Richard Butler confirmed that he neither
intended nor authorized any such withdrawal from his account, whereupon the
bank reported these events to law enforcement authorities.
The next day, Kleiner appeared at the TD Bank and provided a teller with
a $74,000 withdrawal slip and a New Jersey driver’s license in the name of
“Richard J. Butler, Jr.,” but bearing Kleiner’s own photograph. He was promptly
arrested, at which time law enforcement officers found on his person two
counterfeit credit cards in Richard Butler’s name, as well as a notebook
containing Butler’s correct and full name, address, social security number, date
of birth, phone numbers, bank account information, and family members’ names.
B. Procedural History
Charged with bank fraud, see 18 U.S.C. § 1344(1), and aggravated identity
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theft, id. § 1028A(a)(1), Kleiner pleaded guilty to the fraud charge on February 5,
2013. In its Presentence Report calculation of Kleiner’s Sentencing Guidelines
range, the Probation Department concluded that the base offense level of seven,
see U.S.S.G. § 2B1.1(a)(1), warranted two enhancements: (1) an eight‐level
increase for an intended loss greater than $70,000 but less than $120,000, see id.
§ 2B1.1(b)(1)(E); and (2) a two‐level increase for the “unauthorized . . . use of any
means of identification unlawfully to produce or obtain any other means of
identification,” see id. § 2B1.1(b)(11)(C)(i). This yielded a Guidelines sentencing
range of 24–30 months’ imprisonment.
Both in writing and orally, Kleiner opposed the § 2B1.1(b)(11)(C)(i)
enhancement, maintaining that it is not intended to apply to a defendant, such as
himself, who has simply transferred a person’s identifying information onto a
counterfeit driver’s license or credit card. Kleiner acknowledged that the Third
Circuit has held to the contrary in United States v. Newsome, 439 F.3d 181, 186–
87 (3d Cir. 2006).
In rejecting Kleiner’s Guidelines challenge, the district court relied on
Newsome: “It does seem that the Newsome court, the Third Circuit Court did
get it right. Maybe the guideline could have been clearer, but they interpreted it
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the way I think it should be interpreted, logically.” J.A. 94–95. Accordingly, it
adopted the Probation Department’s Guidelines recommended calculation and
sentenced Kleiner to a 24‐month prison term.
Kleiner timely filed this appeal.
II. Discussion
The single issue on this appeal is whether the district court committed
procedural error in applying a two‐level enhancement under U.S.S.G.
§ 2B1.1(b)(11)(C)(i) to the calculation of Kleiner’s Sentencing Guidelines range.
“We review de novo all questions of law relating to the district court’s
application of a sentencing enhancement,” United States v. Allen, 750 F.3d 209,
212 (2d Cir. 2014), and we review for clear error the district court’s findings of
fact supporting its conclusion, see United States v. Hertular, 562 F.3d 433, 449 (2d
Cir. 2009).
Section 2B1.1(b)(11)(C) of the Sentencing Guidelines implements section 4
of the Identity Theft and Assumption Deterrence Act of 1998, Pub. L. No. 105‐
318. See U.S.S.G. § 2B1.1 cmt. background. As explained in Guidelines
commentary, § 2B1.1(b)(11)(C) “focuses principally on an aggravated form of
identity theft known as ‘affirmative identity theft’ or ‘breeding,’ in which a
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defendant uses another individual’s name, social security number, or some other
form of identification . . . to . . . produce or obtain[] new or additional forms of
identification.” Id.
The Guideline’s operative language is in two parts:
If the offense involved . . . (C)(i) the unauthorized transfer or use of
any means of identification unlawfully to produce or obtain any
other means of identification, or (ii) the possession of 5 or more
means of identification that unlawfully were produced from, or
obtained by the use of, another means of identification, increase [the
offense level] by 2 levels. If the resulting offense level is less than
level 12, increase to level 12.
U.S.S.G. § 2B1.1(b)(11). The term “means of identification,” referenced in both
subparts, is statutorily defined to include the following:
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 . . . .
18 U.S.C. § 1028(d)(7).
Kleiner argues that application of a § 2B1.1(b)(11)(C)(i) enhancement to his
case was error for two reasons. First, he contends that adding Richard Butler’s
name—which Kleiner acknowledges is a “means of identification”—to additional
documents, here a counterfeit driver’s license and counterfeit credit cards, does
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not produce a “means of identification” because the statutory definition of that
term refers to information and not to documents. Specifically, Kleiner argues
that a counterfeit driver’s license is not a “name or number that may be used . . .
to identify a specific individual,” 18 U.S.C. § 1028(d)(7), nor is it akin to any other
“means of identification” specified in that statute. Rather, it is a “false
identification document,” which 18 U.S.C. § 1028(d)(4) defines as “a document of
a type intended or commonly accepted for the purposes of identification of
individuals” that deceitfully appears to have been issued under governmental
authority.
Second, Kleiner argues that the Guideline’s reference to “any other means
of identification,” indicates that there must be two separate and distinct means of
identification. Thus, where a name or identification number is merely copied to
a new document, the enhancement does not apply.
In evaluating Kleiner’s arguments, this panel is mindful that it is not the
first to consider U.S.S.G. § 2B1.1(b)(11)(C)’s reference to “means of identification”
generally or “another means of identification” specifically. This court had
occasion to address both these matters when, in United States v. Sash, 396 F.3d
515 (2d Cir. 2005), it rejected an enhancement challenge under what is now
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§ 2B1.1(b)(11)(C)(ii)2 based on defendant’s possession of “5 or more means of
identification” unlawfully produced from “another means of identification.”
U.S.S.G. § 2B1.1(b)(11)(C)(ii). The Sash defendant made and sold unauthorized
duplicate police badges, and was found to have been in possession of thousands
of such badges, which were seized in a search of his home. See United States v.
Sash, 396 F.3d at 517–18. The seized badges bore “actual, unique numbers
assigned by the [New York Police Department] to individual officers and
appeared to be authentic.” Id. at 517. In short, the duplicate badges contained
no new identifying information beyond that on an authorized badge.
Nevertheless, this court upheld a § 2B1.1(b)(11)(C)(ii) enhancement, concluding
that an officer’s badge or shield number is a “means of identification,” and that,
when defendant created a duplicate badge—even at the request of the officer
issued the original badge—he was “producing a ‘means of identification’ from
‘another means of identification’ under the plain meaning of the Enhancement.”
Id. at 524. In support, Sash quoted United States v. Melendrez, in which the
2 Sash considered a challenge to § 2B1.1(b)(9)(C) of the November 2001
Guidelines and Guideline Manual. See 396 F.3d at 516 n.1. That section has since
been moved to § 2B1.1(b)(11)(C), without any alteration in the operative
language. For consistency, we refer here to the current codification.
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Ninth Circuit held—contrary to what Kleiner urges here—that “an unlawfully
produced duplicate means of identification still subjects a defendant to the
§ 2B1.1(b)([11])(C) enhancement because ‘there is no requirement that the source
ID number and the produced ID [number] be different numbers.’” Id. (quoting
United States v. Melendrez, 389 F.3d 829, 834 (9th Cir. 2004)) (alteration in Sash).
Although Sash construed “means of identification” under
§ 2B1.1(b)(11)(C)(ii), and the enhancement in this case was imposed under
§ 2B1.1(b)(11)(C)(i), we identify no principled reason for treating identical terms
in the same Guideline differently. When construing Sentencing Guidelines we
“employ basic rules of statutory construction,” United States v. Mason, 692 F.3d
178, 182 (2d Cir. 2012), and apply the “normal rule . . . that identical words used
in different parts of the same act are intended to have the same meaning,”
Department of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 332, 342 (1994)
(internal quotation marks omitted). To ensure that the term “means of
identification” in § 2B1.1(b)(11)(C)(i) is construed to have the same meaning as
that term in § 2B1.1(b)(11)(C)(ii), we must follow Sash. Insofar as Sash held that a
police badge, and not simply the identification number contained thereon, is a
“means of identification,” we must conclude that a driver’s license, and not
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simply the number it displays, is a “means of identification.” Certainly, Kleiner
points us to no distinguishing feature that would support treating police badges
differently from driver’s licenses as means of identification.
To the contrary, as Kleiner acknowledges, the commentary to
§ 2B1.1(b)(11)(C) specifically identifies driver’s licenses as “means of
identification.” See U.S.S.G. § 2B1.1 cmt. background (“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.”). The Third Circuit relied in part on this commentary in United
States v. Newsome—followed by the district court in this case—when it held that
a counterfeit license is a “means of identification.” See United States v.
Newsome, 439 F.3d at 186.
Sash’s conclusion that identical duplicate police badges constituted
“another means of identification” under § 1B1.1(b)(11)(C)(ii) similarly forecloses
Kleiner’s argument that copying Richard J. Butler’s name onto a counterfeit
driver’s license cannot satisfy § 2B1.1(b)(11)(C)(i)’s requirement for the
production of “[an]other means of identification.” Kleiner does not attempt to
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distinguish Sash but, instead, argues that Sash erroneously reads the word
“other” out of the Guidelines.
In support, Kleiner cites United States v. Hawes, 523 F.3d 245 (3d Cir.
2008), and various unpublished decisions. In fact, these decisions do not support
Kleiner’s argument. For example, Hawes held that a § 2B1.1(b)(11)(C)
enhancement was not warranted based simply on a defendant changing the
mailing address on mutual fund account statements in order to conceal his fraud.
See id. at 247, 252. Hawes reasoned that “[a]n address or piece of mail does not
seem to fit the Guideline’s definition of ‘means of identification’” because a
“means of identification [must] be just that, a means of identification, not merely
an attribute of one’s identity.” Id. at 252 (emphasis in original). In short, in
Hawes, the Third Circuit did not conclude that the duplication of identification
information onto another document or item was insufficient to support a
§ 2B1.1(b)(11)(C) enhancement. Indeed, such a conclusion would have directly
conflicted with that court’s decision in Newsome.
Insofar as Kleiner cites decisions upholding § 2B1.1(b)(11)(C)
enhancements where one type of identifying information is used to produce a
distinct type of identifying information, see, e.g., United States v. Vasquez, 673
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F.3d 680, 686–87 (7th Cir. 2012) (affirming application of enhancement where
defendant used social security numbers to obtain PIN number for access to
government benefits), those cases are inapposite because the courts there did not
confront or address the question of whether duplication of identifying
information supported this enhancement. Where courts, including our own,
have addressed that issue directly, they have held duplication to support the
enhancement. See United States v. Newsome, 439 F.3d at 186–87 [3d Cir.];
United States v. Sash, 396 F.3d at 524 [2d Cir.]; United States v. Melendrez, 389
F.3d at 833–34 [9th Cir.]. This is unsurprising given Guidelines commentary
defining “produce,” as used in § 2B1.1(b)(11), to “include[] manufacture, design,
alter, authenticate, duplicate, or assemble.” U.S.S.G. § 2B1.1 cmt. (10)(A)
(emphasis added). We therefore conclude that, just as the unauthorized copying
of police badge identification numbers onto duplicate badges supported a
§ 2B1.1(b)(11)(C)(ii) enhancement in Sash, defendant’s copying of Richard J.
Butler’s name onto a counterfeit driver’s license that he then used to try to
perpetrate bank fraud supported a § 2B1.1(b)(11)(C)(i) enhancement in the
calculation of his Sentencing Guidelines range.
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In sum, the case presents us with no procedural error affecting the
reasonableness of Kleiner’s 24‐month prison sentence. The judgment of the
district court is therefore AFFIRMED.
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