[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 6, 2005
No. 04-15642 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60148-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CARLOS CASTILLO-HERNANDEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 6, 2005)
Before ANDERSON, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Juan Carlos Castillo-Hernandez appeals his eight-month sentence for
possession of a false social security number, in violation of 42 U.S.C.
§ 408(a)(7)(B). Castillo-Hernandez argues that the district court erred when it
applied a six-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(9)(C)(i) because
the social security number that he attempted to use to obtain a port access clearance
badge did not belong to an “actual individual” as that term is used by the
guidelines, because the number was assigned to a person who died almost 30 years
before Castillo-Hernandez committed the criminal offense. Castillo-Hernandez
contends that there is no ambiguity in the word “actual,” which means existing and
not merely potential or possible. Thus, he argues that an actual individual could
not include a person who died almost 30 years ago. Castillo-Hernandez further
argues that his reading of the term “actual individual” is supported by the reasons
underlying the enhancement, which is designed to punish the defendant for harm,
such as a damaged credit rating, damage to an individual’s reputation,
inconvenience, and other difficulties, that a victim of identity theft may face.
Castillo-Hernandez argues that these harms, and thus the reason for applying the
sentencing enhancement, are not present where the means of identification used
belonged to a deceased person.
We review de novo whether the district court properly applied
§ 2B1.1(b)(9)(C)(i) to Castillo-Hernandez’s underlying conduct. See United States
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v. Spell, 44 F.3d 936, 938 (11th Cir. 1995). Section 2B1.1 states that if “the
offense involved . . . the unauthorized transfer or use of any means of identification
unlawfully to produce or obtain any other means of identification . . . increase by 2
levels. If the resulting offense level is less than level 12, increase to level 12.”
U.S.S.G. § 2B1.1(b)(9)(C)(i) (2003). “‘Means of identification’ has the meaning
given that term in 18 U.S.C. § 1028(d)(7), except that such means of identification
shall be an actual (i.e., not fictitious) individual, other than the defendant[.]”
U.S.S.G. § 2B1.1, cmt. n.8 (emphasis added); see also United States v. Auguste,
392 F.3d 1266, 167-68 (11th Cir. 2004) (affirming the enhancement where the
defendant had used her own name on the credit cards that she obtained by using the
living victim’s existing lines of credit and did not open new lines of credit).
We have held that the language in the sentencing guidelines is to be given its
plain and ordinary meaning. United States v. Pompey, 17 F.3d 351, 354 (11th Cir.
1994). Thus, because “i.e.” is an abbreviation for “that is” or “that is to say,” the
plain meaning of the language used by Congress was that “not fictitious” was the
exclusive definition for “actual.” See Black’s Law Dictionary 511 (6th ed. 1991).
See also United States v. Bush, 404 F.3d 263, 267 (4th Cir. 2005) (affirming the
defendant’s conviction for using a false social security number to obtain a car loan,
in violation of 42 U.S.C. § 408(a)(7)(B), where the social security number used
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was assigned to a deceased person). Accordingly, in light of the plain meaning of
the phrase “actual (i.e., not fictitious),” we affirm.
In addition, we reject Castillo-Hernandez’s’s argument that the enhancement
should not apply because he did not actually obtain a port access clearance badge.
The policy of the guidelines is to provide a lesser punishment for an attempt,
“unless the defendant completed all the acts the defendant believed necessary for
successful completion of the substantive offense or the circumstances demonstrate
that the defendant was about to complete all such acts but for apprehension or
interruption by some similar event beyond the defendant's control.” U.S.S.G.
2X1.1(b)(1) (emphasis added). In this case, Appellant was apprehended just before
he completed all of the acts and so under the guidelines, his actions do not
constitute an attempt.
AFFIRMED.1
1
Castillo-Hernandez’s request for oral argument is denied.
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