United States v. Blixt

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-30198
Plaintiff-Appellee, D.C. No.
v.  CR-06-00025-
MARGARET BLIXT, CCL-1
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding

Argued and Submitted
May 6, 2008—Seattle, Washington

Filed November 26, 2008

Before: Susan P. Graber and Johnnie B. Rawlinson,
Circuit Judges, and Otis D. Wright II* District Judge.

Opinion by Judge Rawlinson

*The Honorable Otis D. Wright II, United States District Judge for the
Central District of California, sitting by designation.

15807
15810 UNITED STATES v. BLIXT

COUNSEL

Palmer A. Hoovestal, Hoovestal Law Firm, Helena, Montana,
for defendant-appellant Margaret Blixt.

Michael S. Lahr, Assistant United States Attorney, Helena,
Montana, for plaintiff-appellee United States of America.

OPINION

RAWLINSON, Circuit Judge:

Margaret Blixt (Blixt) appeals from her jury conviction and
sentence for mail fraud under 18 U.S.C. § 1341 and aggra-
vated identity theft under 18 U.S.C. § 1028A. The district
court denied Blixt’s motion to dismiss the aggravated identity
theft charge and subsequent motion for acquittal on the same
count. The court determined as a matter of law that contrary
to Blixt’s assertion, a signature is a name for the purpose of
defining a “means of identification” as used in § 1028A. The
district court also denied Blixt’s motion for acquittal on the
mail fraud charge, rejecting her interpretation of what is
required to prove the materiality element of the offense.

Blixt appeals these rulings, the inclusion and exclusion of
various jury instructions, and the court’s decision not to
 UNITED STATES v. BLIXT 15811
depart downward for diminished mental capacity pursuant to
U.S.S.G § 5K2.13. We have jurisdiction under 28 U.S.C.
§ 1291 and we affirm.

I.

BACKGROUND

Blixt began working for Crawford and Company (Craw-
ford) in 1998 in its Helena, Montana office. Crawford is a
large international corporation, providing claim adjusting,
vocational rehabilitation, and risk management services to its
insurance company clients. At the time of the events leading
to Blixt’s conviction, Timothy Fitzpatrick (Fitzpatrick) was
the branch manager.

When checks arrived from insurance companies, they were
forwarded from the Helena office, along with associated
invoices and accounting information, to Crawford’s headquar-
ters in Atlanta via commercial carrier. From 2003 to 2004, it
was primarily Blixt’s responsibility to forward the packages.

The Helena branch maintained a checking account at Val-
ley Bank, with Fitzpatrick having signature authority. Begin-
ning in March, 2003, Blixt began to deposit client payments
into the Valley Bank account. Blixt wrote approximately 352
checks from this account for her own personal gain, forging
Fitzpatrick’s signature on each check. The total amount of the
checks was in excess of $150,000.00.

In January, 2004, Blixt began sending false accounting
information to Crawford’s Atlanta office to cover her actions.
Crawford accounting personnel relied on the invoice numbers
written by Blixt to determine where to allocate the funds.
Using this system, Blixt was able to orchestrate allocation of
current funds to old accounts from which Blixt had stolen
funds.
15812 UNITED STATES v. BLIXT
In August, 2004, Fitzpatrick was alerted by Valley Bank to
“some unusual signatures on checks that were coming into the
account.” Ultimately, Blixt admitted her actions to Fitzpat-
rick.

In October or November, 2004, Detective Russell Whit-
comb (Whitcomb) of the Helena Police Department inter-
viewed Blixt. Blixt admitted that she forged Fitzpatrick’s
signature, stole the money, and used it for her own benefit.

FBI Special Agent Kevin Damuth (Damuth) also met with
Blixt. Blixt told Damuth that she deposited checks received
from customers into the Valley Bank account and withdrew
the money by writing checks to herself, signing Fitzpatrick’s
name. She admitted that neither Fitzpatrick nor anybody else
from Crawford had given her authorization to sign Fitzpat-
rick’s name.

On October 4, 2006, Blixt was indicted on two counts.
Count 1 charged Blixt with a violation of 18 U.S.C. § 1341
(mail fraud). Count 2 charged her with a violation of 18
U.S.C. § 1028A(a)(1) (aggravated identity theft).

Blixt moved to dismiss Count 2, arguing that a signature
was not a name, and therefore not a means of identification
under 18 U.S.C. § 1028A. The district court denied Blixt’s
motion, holding that a forged signature was a means of identi-
fication as contemplated under that statute.

Prior to trial, the government filed a motion in limine to
prevent Blixt from arguing and presenting evidence at trial
that a forged signature is not a means of identification. Upon
completion of the government’s case, the district court denied
the motion. The court also denied Blixt’s motion for acquittal
pursuant to Rule 29 of the Rules of Criminal Procedure, made
at the close of the government’s case.

During the settling of jury instructions, Blixt’s counsel
again raised the defense’s theory that a forged signature is not
 UNITED STATES v. BLIXT 15813
a name. The district court indicated that it would instruct the
jury otherwise. When Blixt’s counsel stated that he intended
to present the theory nevertheless, the court responded that it
would listen to the argument and if the court thought the argu-
ment was “contrary to the instruction, the jury [would] be
instructed further.”

During closing argument, Blixt’s counsel argued that a
forged signature is not a means of identification but rather “a
series of swirls and lines. It doesn’t say anything. And that’s
what a forged signature is. It’s not the use of a name.”
Defense counsel also made the following statements:

• For there to be false statements for the purpose of
engaging in mail fraud, Blixt’s statements “had to
have influenced somebody to part with money.”

• The judge was appointed by the President and
affirmed by the Senate.

• The jury was brought from the community “to
form[ ] a buffer, the barrier between the awesome
power of the government and the people.”

• The community “can solve our own problems.
We don’t need the federal government to inter-
cede in local matters.”

• “This is serious, serious business. This is the
United States government. This is the same gov-
ernment that is at war in Iraq.”

• These are “state offenses” that “should have been
charged at the state level because the government
cannot prove these elements . . .”

• This case “should have been in state court.”
15814 UNITED STATES v. BLIXT
Following these statements from defense counsel, the dis-
trict court instructed the jury that “a signature is a name
within the meaning of the phrase ‘Means of Identification.’ ”
With respect to Blixt’s counsel’s statements regarding the
materiality element of the mail fraud charge, the court also
stated that “Mr. Hoovestal has argued that it is necessary here
that a person parted with money. Now, this is incorrect under
the law . . .”

The district court further instructed the jury that the case
was properly in federal court and the jury should disregard the
“erroneous statement of the law by defense counsel” that the
case should have been in state court. Finally, the judge stated
that it is irrelevant that he was appointed by the President and
approved by the Senate; this did not make him “from Wash-
ington, D.C.”, and “[t]his court has nothing to do with what’s
going on in Iraq.”

Defense counsel preserved his objections to the district
court’s jury instructions. Blixt was convicted of both mail
fraud and aggravated identity theft. At sentencing, Blixt
sought a downward departure due to diminished mental
capacity. The district court ultimately declined to further
adjust Blixt’s sentence. Blixt was sentenced to a term of forty-
eight months in prison.

Blixt filed a timely notice of appeal.

II.

STANDARDS OF REVIEW

We review de novo a district court’s denial of a motion to
dismiss the indictment for failure to sufficiently state an
offense, United States v. Sutcliffe, 505 F.3d 944, 961 (9th Cir.
2007), and the district court’s interpretation of the relevant
criminal statute. United States v. W.R. Grace, 504 F.3d 745,
751 (9th Cir. 2007), cert. denied, 128 S. Ct. 2964 (2008). We
 UNITED STATES v. BLIXT 15815
also review de novo the denial of a motion for acquittal pursu-
ant to Federal Rule of Criminal Procedure 29. United States
v. Johnson, 444 F.3d 1026, 1029 (9th Cir. 2006). The district
court’s formulation of jury instructions is reviewed for an
abuse of discretion. See United States v. Tatoyan, 474 F.3d
1174, 1179 (9th Cir. 2007). “[H]owever, whether the district
court’s instructions adequately presented the defendant’s the-
ory of the case is reviewed de novo.” Id. (citation, alteration
and internal quotation marks omitted). We review the district
court’s application of the Sentencing Guidelines to the facts
for an abuse of discretion. United States v. Garro, 517 F.3d
1163, 1167 (9th Cir. 2008). “[T]he scheme of downward and
upward ‘departures’ [is] essentially replaced by the require-
ment that judges impose a ‘reasonable’ sentence.” United
States v. Mohamed, 459 F.3d 979, 986 (9th Cir. 2006).

III.

DISCUSSION

A. The Aggravated Identity Theft Count

Blixt contends that the district court “erred as a matter of
law when it ruled that a signature is a name for purposes of
[the] Aggravated Identity Theft” statute and thus erred in
denying both her motion to dismiss Count 2 and her motion
for acquittal on Count 2. Blixt asserts that she did not use
another’s name, she merely forged a signature, and because a
forged signature is not separately identified as a “means of
identification” under § 1028A, her actions did not violate the
statute.

[1] Whether the use of another’s signature constitutes a
“means of identification” for purposes of the Aggravated
Identity Theft statute has not yet been resolved by this or any
other circuit. Finding no prior authority on the issue, we hold
as a matter of first impression that forging another’s signature
15816 UNITED STATES v. BLIXT
constitutes the use of that person’s name and thus qualifies as
a “means of identification” under 18 U.S.C. § 1028A.

The Aggravated Identity Theft statute provides in part:

(1) In general.—Whoever, during and in relation to
any felony violation enumerated in subsection (c),
knowingly transfers, possesses, or uses, without law-
ful authority, a means of identification of another
person shall, in addition to the punishment provided
for such felony, be sentenced to a term of imprison-
ment of 2 years.

18 U.S.C. § 1028A(a)(1). The felony violations enumerated in
subsection (c) include mail, bank, and wire fraud; acquisition
of customer information by false pretenses; theft of public
money or property; and alien registration, immigration and
citizenship violations. Id. § 1028A(c). Blixt was charged with
using “a means of identification of another person” to commit
mail fraud.

In determining whether a signature qualifies as a “means of
identification” in this case, we begin by considering the lan-
guage of the statute. See United States v. Fuller, 531 F.3d
1020, 1025 (9th Cir. 2008).

[2] The Aggravated Identity Theft statute defines the term
“means of identification” in a way that makes reasonably
clear that forging another’s signature on a check constitutes
the use of a means of identification. See 18 U.S.C. § 1028(d)
(providing that “[i]n this section and section 1028A . . . (7)
the 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 num-
ber, alien registration number, government passport number,
 UNITED STATES v. BLIXT 15817
employer or taxpayer identification number . . .”) (emphasis
added).

[3] This definition includes the use of a name, alone or in
conjunction with any other information, as constituting the
use of a means of identification so long as the information
taken as a whole identifies a specific individual. There is
nothing in the language of the statute that suggests the use of
another’s name in the form of a signature is somehow
excluded from the definition of “means of identification.”

[4] Were we to find that signatures are categorically not
names and thus not included within this definition, we would
be disregarding the “settled principle of statutory construction
that we must give effect, if possible, to every word of the stat-
ute.” Bowsher v. Merck & Co., Inc., 460 U.S. 824, 833 (1983)
(citation omitted). By using the word “any” to qualify the
term “name,” the statute reflects Congress’s intention to con-
struct an expansive definition. See Ali v. Federal Bureau of
Prisons, 128 S. Ct. 831, 835-36 (2008) (“Read naturally, the
word ‘any’ has an expansive meaning, that is, ‘one or some
indiscriminately of whatever kind.’ ”) (citation and alteration
omitted). Categorically carving out a signature from this defi-
nition, although a signature is commonly understood to be the
written form of a person’s name1, would impermissibly nar-
row the definition of “name” in the statute. Thus, we agree
with the district court that a signature is a name for the pur-
pose of applying the Aggravated Identity Theft statute.

[5] Blixt urges us to acknowledge that a signature is no
more than “a series of lines, curves, and squiggles,” and that
no one would be able to decipher Fitzpatrick’s name from his
signature. However, she does not dispute that Fitzpatrick’s
signature was meant to be a particularized rendering of his
1
Black’s Law Dictionary defines the term “signature” to mean “[a] per-
son’s name or mark written by that person or at that person’s direction.”
Black’s Law Dictionary (8th ed. 2004).”
15818 UNITED STATES v. BLIXT
name. Fitzpatrick’s signature, however illegible, was thus
nothing more than his name written in a particular way and
meant to identify him, specifically. Thus, in forging his signa-
ture, Blixt indisputably used another person’s means of identi-
fication for an unauthorized purpose in violation of the
Aggravated Identity Theft statute.

Concluding that a forged signature constitutes a means of
identification does not lead to an unreasonable result. Rather,
recognizing a signature as a subset of “name” is consistent
with the statute’s purpose. See House Report No. 108-528,
2004 U.S.C.C.A.N. 779, 780 (June 8, 2004) (“The terms
‘identity theft’ and ‘identity fraud’ refer to all types of crimes
in which someone wrongfully obtains and uses another per-
son’s personal data in some way that involves fraud or decep-
tion, typically for economic or other gain . . .”). Here, Blixt’s
forgery of Fitzgerald’s signature without authorization and for
her personal economic gain falls precisely within this descrip-
tion of “identity theft” or “identity fraud.”

Each of the two arguments Blixt offers to support her posi-
tion is countered by the plain language of the statute or by its
legislative history. First, Blixt argues that because “signature”
is not specifically included in the list of “means of identifica-
tion” in § 1028(d)(7), but “name” is included, Congress must
have purposely excluded the term “signature.” Blixt cites to
our decision in United States v. Fiorillo, 186 F.3d 1136 (9th
Cir. 1999) (per curiam), to support this argument. See id. at
1153 (describing the inclusion of “language in one section of
a statute” and the omission of that language in another section
of the same Act) (citation omitted). This general principle of
statutory construction is inapplicable to the Aggravated Iden-
tity Theft statute because the statute does not include the word
“signature” in one section of the Act and then exclude it in
another section. The word “signature” is simply not included
in the statute. Blixt’s reliance on Fiorillo is thus misplaced.

Blixt next argues that the presence of a signature on a
check is the event that causes a check to be paid, not the
 UNITED STATES v. BLIXT 15819
name; and that this use of a signature is “not the theft of ‘per-
sonal data’ contemplated by Congress when enacting this stat-
ute.” As a preliminary matter, we note that the process used
by banks to direct payment on a check in no way affects the
legal question of whether forging another’s signature consti-
tutes the use of that person’s name. More importantly, as dis-
cussed above, the legislative history cited by Blixt more
strongly supports a conclusion that Blixt’s forgery of Fitzger-
ald’s signature constitutes the use of a “means of identifica-
tion” because it conforms precisely to the conduct Congress
sought to proscribe — wrongfully obtaining and using Fitz-
patrick’s signature for her own economic gain.

For these reasons, we affirm the district court’s conclusion,
as a matter of law, that forging another’s signature constitutes
the use of that person’s name for the purpose of applying the
Aggravated Identity Theft statute.

B. The Mail Fraud Count

[6] We have held that “[a] misrepresentation must be mate-
rial to form the basis of a conviction for mail or securities
fraud.” United States v. Tarallo, 380 F.3d 1174, 1182 (9th
Cir. 2004) (citations omitted). “For mail fraud, the test is
whether the statement has a natural tendency to influence, or
is capable of influencing, the addressee’s decision.” Id. (cita-
tion omitted).

Blixt submits that “the government failed to present proof
as to the ‘materiality’ element, i.e., that the mailings influ-
enced anybody at Crawford to part with money.” She con-
tends that her mailing of the checks to the Atlanta office “did
not influence anybody to part with money because the thefts
had already occurred.”

Blixt’s argument disregards the established definition of
materiality. The Supreme Court has confirmed that the gov-
15820 UNITED STATES v. BLIXT
ernment need not prove reliance to establish materiality, stat-
ing:

In one sense, the Government is correct that the
fraud statutes did not incorporate all the elements of
common-law fraud. The common-law requirements
of “justifiable reliance” and “damages,” for example,
plainly have no place in the federal fraud statutes.
See, e.g., United States v. Stewart, 872 F.2d 957, 960
(C.A.10 1989) (“Under the mail fraud statute, the
government does not have to prove actual reliance
upon the defendant’s misrepresentations”); United
States v. Rowe, 56 F.2d 747, 749 (C.A.2 1932) (L.
Hand, J.) (“Civilly of course the mail fraud statute
would fail without proof of damage, but that has no
application to criminal liability”), cert. denied, 286
U.S. 554 (1932). By prohibiting the “scheme to
defraud,” rather than the completed fraud, the ele-
ments of reliance and damage would clearly be
inconsistent with the statutes Congress enacted . . .

Neder v. United States, 527 U.S. 1, 24-25 (1999) (alterations
and parallel citations omitted).

Indeed, even earlier, we held that “[a] misrepresentation
may be material without inducing any actual reliance. What
is important is the intent of the person making the statement
that it be in furtherance of some fraudulent purpose.” United
States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981) (per
curiam) (citations omitted).

[7] The evidence introduced at trial established that Blixt
sent invoices and checks to the Atlanta office with written
directions to allocate the incoming checks to old accounts to
cover up the amounts she had taken. This was “in furtherance
of [a] fraudulent purpose,” id., and thereby material. See
Tarallo, 380 F.3d at 1182-1183 (concluding that the defen-
dant’s misrepresentations regarding his location were material
 UNITED STATES v. BLIXT 15821
because they were “designed to give a false impression as to
the size and nature of his own company as well as the busi-
nesses in which victims were being asked to invest”). Accord-
ingly, we affirm Blixt’s mail fraud conviction.

C. Jury Instructions

[8] “In general, a party is entitled to an instruction to help
it prove its theory of the case, if the instruction is supported
by law and has foundation in the evidence.” United States v.
Heredia, 483 F.3d 913, 922 (9th Cir.), (en banc), as amended,
cert. denied, 128 S. Ct. 804 (2007) (citation and internal quo-
tation marks omitted). As discussed above, Blixt’s argument
that a signature, or more specifically, a forged signature, is
not a name for purposes of the Aggravated Identity Theft stat-
ute was not grounded in the law, and was not supported by the
evidence. Thus, the district court did not abuse its discretion
in declining to give an instruction that a signature was not a
name, and by giving an instruction that a signature was a
name for the purpose of proving aggravated identity theft.
Similarly, as discussed above, the district court did not err in
properly instructing the jury on the actual law regarding mate-
riality after Blixt’s counsel misstated what the government
was required to prove.

Blixt also contends that the district court improperly “sin-
gled out Defense Counsel’s argument and invalidated it to the
jury” when it advised the jury that it should disregard coun-
sel’s statements regarding the judge’s appointment by the
President and that the government was the same government
at war in Iraq. Blixt asserts that counsel did not make these
statements to “inflame the Jury,” but rather “to highlight the
serious nature of the case in Margaret Blixt’s life, and that the
Jury’s duty was to acts [sic] as judges of the facts by engaging
in careful and impartial consideration of the evidence without
passion, sympathy, or prejudice.” Regardless of counsel’s
motivation for making the statements, the district court, exer-
cising considerable restraint in the face of blatant jury nullifi-
15822 UNITED STATES v. BLIXT
cation arguments, properly instructed the jury to disregard
counsel’s statements. See United States v. Sturgis, 578 F.2d
1296, 1300 (9th Cir. 1978) (“Not only should a judge interfere
with an attorney’s closing argument when it is ‘legally
wrong,’ but he should also limit, for example, attorneys’
remarks outside the record or unduly inflammatory.”).

[9] Each of the challenged instructions was intended to cor-
rect legally erroneous or inflammatory statements made by
defense counsel during closing arguments. Taken as a whole,
the jury instructions provided the jury with adequate and
accurate guidance to determine whether Blixt had committed
mail fraud and/or aggravated identity theft. See Tatoyan, 474
F.3d at 1179 (“In reviewing jury instructions, the relevant
inquiry is whether the instructions as a whole are misleading
or inadequate to guide the jury’s deliberation.”) (citation
omitted).

D. Sentencing Calculation

Blixt does not dispute the district court’s calculation of the
sentencing guideline range. Instead, Blixt challenges the dis-
trict court’s denial of a downward departure under U.S.S.G.
§ 5K2.13 for diminished mental capacity.2 We have previ-
2
Section 5K2.13 provides:
A downward departure may be warranted if (1) the defendant
committed the offense while suffering from a significantly
reduced mental capacity; and (2) the significantly reduced mental
capacity contributed substantially to the commission of the
offense. Similarly, if a departure is warranted under this policy
statement, the extent of the departure should reflect the extent to
which the reduced mental capacity contributed to the commission
of the offense.
However, the court may not depart below the applicable guide-
line range if . . . (3) the defendant’s criminal history indicates a
need to incarcerate the defendant to protect the public . . .
U.S.S.G. § 5K2.13 (2006).
 UNITED STATES v. BLIXT 15823
ously held that, “[t]o the extent that a district court has framed
its analysis in terms of a downward or upward departure, we
will treat such so-called departures as an exercise of post-
Booker discretion to sentence a defendant outside of the appli-
cable guidelines range.” Mohamed, 459 F.3d at 987. Thus,
“any post-Booker decision to sentence outside of the applica-
ble guidelines range is subject to a unitary review for reason-
ableness, no matter how the district court styles its sentencing
decision.” Id.

[10] As required post-Booker, the district court considered
the appropriate sentence for Blixt utilizing the factors set forth
in 18 U.S.C. § 3553. See United States v. Carty, 520 F.3d 984,
991 (9th Cir.) (en banc), cert. denied, sub nom. Zavala v.
United States, 128 S. Ct. 2491 (2008). The court determined
that an offense level of 15 and a guideline range of 18 to 24
months were reasonable. In making that determination, the
court reduced the offense level from the recommended
offense level of 21 and the sentencing range from the recom-
mended range of 37 to 46 months.3

[11] Applying the § 3553 factors, the district court noted
that Blixt’s history and characteristics were akin to those of
many other embezzlers. It also agreed that Blixt was a gam-
bling addict with a severe problem. The court called attention
to Blixt’s pretrial and post-trial conduct, including the fact
that she continued to gamble even after being released post-
trial on the condition that she not do so. The court thus deter-
mined that the sentence reflected a need for Blixt to be held
accountable and was also necessary to protect the public.

[12] The court also found that the sentencing enhancement
embodied in the identity theft statute was appropriate in this
3
Count 2 was not used to calculate the offense level and corresponding
guideline range. The Aggravated Identity Theft statute mandates a two-
year sentence to run consecutively to any other term of imprisonment. 18
U.S.C. § 1028A(a)(1).
15824 UNITED STATES v. BLIXT
case. Blixt used her supervisor’s identity by signing his name
on more than 350 checks totaling approximately $153,000,
each check constituting a separate crime. The court noted that
“there was a multiplicity of violations and a long-term decep-
tion.” The court also suggested that, although the fear of fed-
eral prison had not stopped Blixt from continuing her
deception, the court hoped that the sentence would serve as a
“wake-up call” to Blixt. Thus, in imposing sentence, the dis-
trict court weighed Blixt’s gambling problem against the need
to hold her accountable, to protect the public from future
harm, and to deter others from committing similar crimes.

[13] In light of the district court’s reasoned consideration
of the § 3553(a) factors, the resulting sentence of twenty-four
months on Count 1 was reasonable. See, e.g., United States v.
Moreland, 509 F.3d 1201, 1207, 1222 (9th Cir. 2007), peti-
tion for cert. filed, ___ U.S.L.W. ___ (U.S. Mar. 11, 2008)
(No. 08-5878) (holding that the district court’s decision to
sentence the defendant to 216 months’ imprisonment when
the guideline range was 292 to 365 months was reasonable “in
consideration of the § 3553(a) factors, and in particular, [the
defendant’s] mental state”).

As we have previously noted, “[e]ven assuming we were to
disagree with the district judge’s assessment of [Blixt’s] mer-
its and demerits, that we might reasonably have concluded
that a different sentence was appropriate is insufficient to jus-
tify reversal of the district court.” United States v. Ruff, 535
F.3d 999, 1004 (9th Cir. 2008) (citation, alteration and inter-
nal quotation marks omitted). “Following the Supreme
Court’s clear mandate, we defer to the district court’s rea-
soned and reasonable decision that the § 3553(a) factors, on
the whole, justified the sentence.” Id. (citation and internal
quotation marks omitted).4
4
Under a unitary reasonableness review, we need not address Blixt’s
argument regarding the evidence the district court considered in connec-
tion with the requested downward departure. See Mohamed, 459 F.3d at
987.
 UNITED STATES v. BLIXT 15825
IV.

CONCLUSION

Blixt’s argument attempting to distinguish a signature from
a name for purposes of the Aggravated Identity Theft statute
fails and the district court did not err in denying the motion
to dismiss, the motion for acquittal and proposed jury instruc-
tions relating to the aggravated identity theft count. Blixt’s
materiality argument is unavailing, and the district court prop-
erly instructed the jury when it corrected defense counsel’s
erroneous closing argument regarding this element. The dis-
trict court also acted within its discretion when it gave cura-
tive instructions in light of the jury nullification arguments
made during closing argument. The district court properly
considered Blixt’s non-conviction conduct in determining her
sentence, and the sentence imposed was reasonable. Accord-
ingly, we affirm the conviction and sentence.

AFFIRMED.