USA v. David Martinez, No. 10-13787 (11th Cir. 2011)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT AUG 16, 2011 JOHN LEY CLERK No. 10-13787 Non-Argument Calendar ________________________ D.C. Docket No. 1:10-cr-20140-MGC-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DAVID MARTINEZ, Defendant-Appellant. __________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (August 16, 2011) Before TJOFLAT, CARNES and PRYOR, Circuit Judges. PER CURIAM: David Martinez appeals his sentence of 48 months of imprisonment for conspiring to use unauthorized access devices, 18 U.S.C. § 1029(b)(2), possessing device-making equipment, id. § 1029(a)(4), and aggravated identity theft, id. § 1028A(a)(1). Martinez argues that the district court could not enhance by two points his base offense level for possessing device-making equipment, see United States Sentencing Guidelines Manual § 2B1.1(b)(10)(A)(i) (2009), because that misconduct was accounted for in his sentence for aggravated identity theft. We affirm. The district court did not err by adding two points to Martinez s base offense level. A defendant convicted of aggravated identity theft cannot be sentenced for that offense and a specific offense characteristic for the transfer, possession, or use of a means of identification, id. § 2B1.6 cmt. n.2, which includes any telecommunication identifying information or access device (as defined in section 1029(e)[(1) and (11)]), 18 U.S.C. § 1028(d)(7). Martinez possessed a piece of device-making equipment called a scanning receiver, U.S.S.G. § 2B1.1(b)(10)(A)(i) & cmt. n.9(A). The aggravated identity theft statute punishes the transfer[], possess[ion], or use[], without lawful authority, [of] a means of identification of another. 18 U.S.C. § 1028A(a)(1). Because neither a piece of device-making equipment nor a scanning receiver constitute a means of identification, the district court could enhance Martinez s sentence for possessing a credit card skimming device. We AFFIRM Martinez s sentence. 2
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