FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10063
Plaintiff-Appellee,
D.C. No.
v. 3:14-cr-00042-
MMD-VPC-1
JOHN DOE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
For the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted July 5, 2016 *
San Francisco, California
Filed November 29, 2016
Before: Barry G. Silverman and Jacqueline H. Nguyen,
Circuit Judges, and Marvin J. Garbis, Senior District
Judge. **
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Marvin J. Garbis, Senior United States District
Judge for the District of Maryland, sitting by designation.
2 UNITED STATES V. DOE
Opinion by Judge Garbis
SUMMARY ***
Criminal Law
The panel affirmed a criminal judgment in a case in
which the defendant was convicted of, among other offenses,
aggravated identity theft in violation of 18 U.S.C. § 1028A.
The panel held that evidence of a defendant’s repeated
submission of false identifying information as part of
successful applications to a government agency is sufficient
to permit a reasonable jury to find that the defendant knew
that the information belonged to a real person, as required to
prove a violation of § 1028A.
The panel held that the 78-month sentence, imposed after
an upward variance from the 18-to-24 month Guidelines
range, was not substantively unreasonable.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. DOE 3
COUNSEL
Robert W. Story, Reno, Nevada, for Defendant-Appellant.
Shannon M. Bryant, Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Daniel G. Bogden,
United States Attorney; United States Attorney’s Office,
Reno, Nevada; for Plaintiff-Appellee.
OPINION
GARBIS, Senior District Judge:
Appellant John Doe 1 appeals from his convictions of
aggravated identity theft under 18 U.S.C. § 1028A, for
knowingly possessing and using the name, birth date, and
social security number of another person when he applied to
renew a Nevada driver’s license and when he submitted a
Form I-9 Employment Eligibility Verification form to his
employer.
Doe contends that the Government failed to prove an
element of the offense – specifically that he knew that the
false identity he used belonged to a real person. He also
challenges the reasonableness of his 78-month sentence.
This case presents the question, not previously addressed
by this Court, of whether evidence of a defendant’s repeated
submission of false identifying information as part of
successful applications to a government agency is sufficient
1
To the date of this writing the Defendant, who has refused to
provide his name, has not been affirmatively identified and is referred to
as “John Doe.”
4 UNITED STATES V. DOE
to permit a reasonable jury to find that the defendant knew
that the information belonged to a real person. We hold that
it is and that Doe’s convictions were thus based upon
sufficient evidence. We also hold that the district court did
not abuse its discretion with regard to Doe’s sentence.
I. Background
The victim of Doe’s identity theft, referred to herein as
“V,” was born in San Jose, California in 1963 and, in or
about 1977, was assigned a social security number and card.
No later than 1987, V’s uncle sold V’s birth certificate and
provided his social security number to a man, not identified
at trial. In 1987, someone, most likely Doe, used V’s birth
certificate, name, and social security number to obtain a
“replacement” social security card from the Social Security
Administration. For some 27 years, until Doe’s arrest in
2014, V’s identification was used without his authorization,
most likely by Doe. In this regard, V received notices from
the Social Security Administration (approximately every
three years) that his name and social security number were
being used in connection with multiple jobs in different
places, including Nevada, with which V had no connection.
The evidence establishes that Doe’s use of V’s identity
began no later than 2002 when Doe obtained a driver’s
license upon an application to the Nevada Department of
Motor Vehicles (“DMV”) that contained Doe’s photograph
but V’s name and birth date. Doe renewed this license
multiple times by resubmitting V’s identifying information
and had such a license in his possession when arrested in
2014.
On or around May 15, 2013, Doe submitted such a
driver’s license together with a social security card with V’s
UNITED STATES V. DOE 5
number to Doe’s employer with a Form I-9 Employment
Eligibility Verification.
The unauthorized use of V’s identity caused him
problems for approximately three decades. In the 1990s, his
driver’s license was suspended twice—including once while
he was employed as a truck driver—because of DUIs
committed in a different state by another person using his
social security number. Tax refund checks due to him from
the IRS were sent to a person in Nevada using his social
security number. His wages were garnished three times to
pay child support for children that were not his. More likely
than not, these problems were caused by Doe’s misuse of
V’s identity. In any event, it is clear that in 2013 V’s
unemployment benefits were halted because of child support
payments owed (and not made) by Doe. V contacted Doe’s
employer to notify it that an employee was unlawfully using
his identity.
On or around June 4, 2014, Doe was arrested in
connection with a fraud investigation conducted by the
Nevada DMV and the Department of Homeland Security.
At that time, he was found to be in possession of a Nevada
driver’s license bearing his photo and V’s identification
information.
In this case, Doe was charged with two counts of
aggravated identity theft under 18 U.S.C. § 1028A, unlawful
production of an identification document under 18 U.S.C.
§ 1028(a)(1), and false attestation in an immigration matter
in violation of 18 U.S.C. § 1546(b)(3). At trial, he was
convicted on all charges. The district court sentenced Doe
to 78 months of incarceration.
Doe appeals, challenging (1) the sufficiency of the
evidence upon which his aggravated identity theft
6 UNITED STATES V. DOE
convictions were based, and (2) the reasonableness of his
sentence.
We have jurisdiction under 28 U.S.C. § 1291.
II. Discussion
A. Sufficiency of the Evidence
1. Standard of Review
This Court reviews the sufficiency of evidence
supporting a defendant’s conviction de novo. We must
construe the evidence “in the light most favorable to the
prosecution” and must affirm the conviction if “any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Nevils,
598 F.3d 1158, 1161 (9th Cir. 2010) (en banc) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
2. The Evidence Was Sufficient
Title 18 U.S.C. § 1028(A) provides that a person who
“knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person” in
connection with an enumerated felony shall be sentenced to
two years imprisonment. 18 U.S.C. § 1028A (2012).
To prove a violation of § 1028A, the Government must
prove beyond a reasonable doubt that:
1. The defendant knowingly transferred or
used a means of identification of another
person without legal authority;
UNITED STATES V. DOE 7
2. The defendant knew the means of
identification belonged to a real person; and
3. The defendant did so in relation to one of
the crimes enumerated in 18 U.S.C.
§ 1028A(c).
See Flores-Figueroa v. United States, 556 U.S. 646, 647,
655–56 (2009); United States v. Miranda-Lopez, 532 F.3d
1034, 1037, 1040 (9th Cir. 2008).
Doe does not debate the Government’s proof of the first
and third elements. Doe was proven to have used V’s means
of identification without legal authority. And the use was
proven to be in relation to crimes enumerated in 18 U.S.C.
§ 1028A(c), i.e., the violations of 18 U.S.C. §§ 1028(a)(1)
and 1546(b)(3) for which he was convicted in the instant
case. 2
Doe acknowledges that the Government proved that V
was a real person. 3 Doe contends however, that, without
direct proof of his knowledge (such as proof that he knew V
or had any connection to the sale of V’s birth certificate and
identifying information), the evidence was insufficient to
2
The felonies enumerated in § 1028A(c) include violation of “any
provision contained in this chapter (relating to fraud and false
statements).” 18 U.S.C. § 1028A(c)(4). 18 U.S.C. §§ 1028(a)(1) &
1546(b)(3) are provisions contained in the chapter.
3
In United States v. Cardenas, 408 F. App’x 106 (9th Cir. 2011),
the defendant’s conviction under § 1028A was reversed because no
evidence was presented proving that a real person actually existed with
the name and birth date given by the defendant to Border Patrol.
8 UNITED STATES V. DOE
establish his knowledge that V was a real person. The Court
does not agree.
While direct evidence of the knowledge element is often
presented in § 1028A prosecutions, 4 this Court has
recognized that the element can be proven by circumstantial
evidence. See Miranda-Lopez, 532 F.3d at 1040 (citing
United States v. Villanueva–Sotelo, 515 F.3d 1234, 1249
(D.C. Cir. 2008) (“[P]roving the defendant knew the stolen
identification belonged to another person should present no
major obstacle, as such knowledge will often be
demonstrated by the circumstances of the case.”)). Thus, the
issue here presented is whether the circumstantial evidence
was sufficient to establish Doe’s knowledge that the identity
of V was that of a real person.
When “determining the sufficiency of circumstantial
evidence, the question is not whether the evidence excludes
every hypothesis except that of guilt but rather whether the
trier of fact could reasonably arrive at its conclusion.”
Nevils, 598 F.3d at 1165 (quoting United States v. Eaglin,
571 F.2d 1069, 1076 (1977)).
4
As noted in Flores-Figueroa, 556 U.S. at 656, in “the classic case
of identity theft, intent is generally not difficult to prove. For example,
where a defendant has used another person’s identification information
to get access to that person’s bank account, the Government can prove
knowledge with little difficulty. The same is true when the defendant
has gone through someone else’s trash to find discarded credit card and
bank statements, or pretends to be from the victim’s bank and requests
personal identifying information. Indeed, the examples of identity theft
in the legislative history (dumpster diving, computer hacking, and the
like) are all examples of the types of classic identity theft where intent
should be relatively easy to prove, and there will be no practical
enforcement problem.”
UNITED STATES V. DOE 9
The Government presented ample circumstantial
evidence to establish Doe’s knowledge that V was a real
person. Most persuasive was proof of Doe’s repeated
success in obtaining renewed Nevada driver’s licenses
bearing Doe’s photograph and V’s name, date of birth, and
social security number. In this regard, the Government
introduced copies of applications to the DMV for Nevada
driver’s licenses and state identity cards in V’s name. The
“image history” associated with the applications dating back
to 2002 5 showed photographs of Doe taken when he applied
for reissuances of the driver’s license and/or identity cards
in V’s name. Denise Riggleman, a DMV Compliance
Enforcement Investigator, described the process involved in
obtaining a new license or identity card through the Nevada
DMV. Ms. Riggleman testified that new applicants must
present proof of identity documents, such as a social security
card or birth certificate, along with their applications to a
DMV technician in person. This information is input into
the DMV computer system, and the actual license is mailed
to the applicant seven to ten days later.
In addition, the Government proved that Doe had
submitted such a Nevada driver’s license and a social
security card in V’s name as proof of identity in connection
with an I-9 Employment Verification Form that he submitted
to his employer.
In regard to the knowledge element of the § 1028A
charge, the district court instructed the jury:
Repeated and successful testing of the
authenticity of a victim’s identifying
information by submitting it to a government
5
Prior to 2002, the Nevada DMV did not maintain image histories.
10 UNITED STATES V. DOE
agency, bank or other lender is circumstantial
evidence that you may consider in deciding
whether the defendant knew the identifying
information belonged to a real person as
opposed to a fictitious one. It is up to you to
decide whether to consider any such evidence
and how much weight to give it.
The jury found Doe guilty on both § 1028A charges.
This Court holds that the evidence of Doe’s repeated
successful use of V’s identity in applications subject to
scrutiny was sufficient to permit the jury to find that he knew
that V was a real person. The Court’s holding is consistent
with decisions issued by its sister Circuits. E.g., United
States v. Valerio, 676 F.3d 237, 244–45 (1st Cir. 2012)
(“‘[W]illingness to subject [a] social security number
repeatedly to government scrutiny’ is evidence that allows a
reasonable jury to find that a defendant knew that a stolen
identity belonged to a real person.”); United States v. Doe,
661 F.3d 550, 562–63 (11th Cir. 2011) (“[A] defendant’s
repeated and successful testing of the authenticity of a
victim’s identifying information prior to the crime at issue is
powerful circumstantial evidence that the defendant knew
the identifying information belonged to a real person as
opposed to a fictitious one.”); United States v. Gomez-
Castro, 605 F.3d 1245, 1249 (11th Cir. 2010) (concluding
that “repeatedly and successfully test[ing] the authenticity of
the birth certificate and social security card” to obtain a
license, benefit card, and passport was sufficient to show that
the identity belonged to a real person); United States v.
Holmes, 595 F.3d 1255, 1258 (11th Cir. 2010) (“A
reasonable jury also could have found that Holmes’s
willingness to subject the social security card repeatedly to
government scrutiny established that she knew, all along,
UNITED STATES V. DOE 11
that the social security card belonged to a real person and
was not a forgery.”); United States v. Foster, 740 F.3d 1202,
1207 (8th Cir. 2014) (“[R]epeated subjection of [a victim’s]
identity to a lender’s scrutiny provides strong circumstantial
evidence that the [defendant] knew the identity was real.”).
Doe, asserting that he is a Mexican national, contends
that it was unreasonable for the jury to find that he knew how
U.S. government agencies and their verification procedures
worked. His not being a citizen, although a resident, of the
United States is a fact that the jury could have considered
relevant but does not render the jury’s finding unreasonable.
As stated in Gomez-Castro, 605 F.3d at 1249 (affirming the
conviction of a citizen of the Dominican Republic),
“[K]nowledge [of verification processes] can be inferred
reasonably based on ordinary human experience for which
no special proof is required; a trier of fact can rely on
common sense.” See also Holmes, 595 F.3d at 1258
(concluding that a reasonable jury could infer that a
defendant (not a United States citizen) knew that the
government “requested and sometimes retained for many
weeks” the submitted personal information to verify
authenticity).
In sum, the Court holds that the circumstantial evidence
presented, establishing Doe’s repeated successful use of V’s
identification information, sufficed to permit the jury to find
that he knew that V was a real person. Hence, he was
properly convicted on two counts charging aggravated
identity theft in violation of 18 U.S.C. § 1028A.
12 UNITED STATES V. DOE
B. Reasonableness of Sentence
1. Standard of Review
A district court’s sentencing determination—whether
inside or outside of the determined Sentencing Guidelines
range—is reviewed for abuse of discretion. A sentence will
be set aside only if it is substantively unreasonable or the
result of a procedural error. See Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Autery, 555 F.3d
864, 872–73 (9th Cir. 2009). In reviewing the substantive
reasonableness of a sentence, we consider whether the
district court identified the correct legal standard and
whether its findings were illogical, implausible, or without
support in the record. United States v. Hinkson, 585 F.3d
1247, 1251 (9th Cir. 2009). Our review is deferential, and
relief is appropriate only in rare cases when the appellate
court possesses “a definite and firm conviction that the
district court committed a clear error of judgment.” United
States v. Ressam, 679 F.3d 1069, 1087–88 (9th Cir. 2012)
(en banc) (quoting United States v. Amezcua-Vasquez,
567 F.3d 1050, 1055 (9th Cir. 2009)).
2. The Sentence Was Not Substantively
Unreasonable
The district court determined that Doe’s Offense Level
was 14 and his Criminal History Category was II, yielding a
Guideline range of 18 to 24 months. 6 However, the district
court varied upward and imposed a sentence of 78 months.
6
The Court reduced Doe’s recommended Offense Level from 16 to
14 after finding that there should not be a two-level obstruction of justice
adjustment by virtue of Doe’s refusal to admit his identity, an action
intertwined with his constitutional right to deny his guilt.
UNITED STATES V. DOE 13
Doe contends that his 78-month sentence is substantively
unreasonable in light of the factors set forth in 18 U.S.C.
§ 3553(a). Specifically, he claims the sentence is of greater
duration than necessary to comply with the purposes of
sentencing and is unsupported by credible evidence.
At sentencing, the district court stated:
The Guideline sentence, I think, does not
adequately reflect the seriousness of the
defendant’s conduct in terms of the length,
the nature of his conduct, and the profound
effect on the victim. The defendant did not
just steal the victim’s identity and use it for a
few years, he stole and utilized the victim’s
identity for about 27 years, which is more
than half of the victim’s life.
....
And, as I noted, defendant didn’t just live
a normal, law-abiding life. He committed
offenses under the victim’s identity and
further perpetuated the harm to the victim,
having these offenses reflect under the
victim’s identity. And, as noted, defendant’s
conduct caused terrible disruptions to the
victim and his family.
The Court finds that the district court properly
considered, and stated the reasons for, the upward variance
to the sentence imposed. In particular, the district court
emphasized the substantial harm done to V over many years,
as well as the criminal offenses committed by Doe in V’s
name, as revealed by Nevada public records. The district
14 UNITED STATES V. DOE
court’s decision was within a range of reasonableness. We
hold that the district court’s imposition of a 78-month
sentence was neither illogical, implausible, nor without
support in the record. Hinkson, 585 F.3d at 1251.
III. Conclusion
For the foregoing reasons, we affirm Doe’s convictions
and sentence.