United States v. Osuna-Alvarez, No. 13-50636 (9th Cir. 2015)

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Defendant appealed his conviction for aggravated identity theft in violation of 18 U.S.C. 1028A, contending that he did not use his twin brother's passport "without lawful authority" because he had permission to use it. The court held that, despite its title, section 1028A does not require theft as an element of the offense. Because the court concluded that the statutory text is unambiguous, consistent with the majority of its sister circuits, the court rejected petitioner's argument that section 1028A requires evidence that defendant stole the means of identification at issue. Accordingly, the court affirmed the judgment.

Court Description: Criminal Law. The panel affirmed a conviction for aggravated identity theft, in violation of 18 U.S.C. § 1028A, in a case in which the defendant contended that because he had permission to use his twin brother’s passport, he did not use the passport “without lawful authority,” as required by the statute. The panel rejected that contention and held that § 1028A does not require theft as an element of the offense. The panel held that regardless of whether the means of identification was stolen or obtained with the knowledge and consent of its owner, the illegal use of the means of identification alone violates § 1028.

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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 13-50636 v. D.C. No. 3:12-cr-04477-LAB-1 MIGUEL OSUNA-ALVAREZ, Defendant-Appellant. OPINION Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Argued and Submitted May 6, 2015—Pasadena, California Filed June 10, 2015 Before: John T. Noonan, Kim McLane Wardlaw, and Mary H. Murguia, Circuit Judges. Per Curiam Opinion 2 UNITED STATES V. OSUNA-ALVAREZ SUMMARY* Criminal Law The panel affirmed a conviction for aggravated identity theft, in violation of 18 U.S.C. § 1028A, in a case in which the defendant contended that because he had permission to use his twin brother’s passport, he did not use the passport “without lawful authority,” as required by the statute. The panel rejected that contention and held that § 1028A does not require theft as an element of the offense. The panel held that regardless of whether the means of identification was stolen or obtained with the knowledge and consent of its owner, the illegal use of the means of identification alone violates § 1028. COUNSEL Richard Dale Rome (argued), Law Offices of Richard D. Rome, Van Nuys, California, for Defendant-Appellant. Laura E. Duffy, United States Attorney; Bruce R. Castetter, Chief, Appellate Section, Criminal Division; Randy K. Jones (argued), Peter Ko, and Lara Stingley, Assistant United States Attorneys, San Diego, California, for Plaintiff-Appellee. * 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. OSUNA-ALVAREZ 3 OPINION PER CURIAM: In this opinion, we resolve Miguel Osuna-Alvarez’s challenge to his conviction for aggravated identity theft, in violation of 18 U.S.C. § 1028A. Osuna-Alvarez (“Osuna”) contends that because he had permission to use his twin brother’s passport, he therefore did not use the passport “without lawful authority,” as required by the statute. See 18 U.S.C. § 1028A. As set forth below, we reject this argument. The remaining issues in this appeal are resolved in a contemporaneously filed memorandum disposition. I. On October 13, 2012, Osuna was arrested while attempting to enter the United States from Mexico at the Otay Mesa, California Port of Entry. Osuna was the driver and sole occupant of his vehicle. At the border crossing, a canine alerted to the vehicle’s dashboard. When questioned, Osuna claimed he was headed for San Ysidro and denied having anything to declare. He presented a United States passport in the name of “Hector Alejandro Osuna-Alvarez.” Following inspection, Customs and Border Protection discovered ten packages containing over three kilograms of methamphetamine and two packages containing over two kilograms of cocaine, hidden inside the vehicle’s airconditioning unit. Osuna was arrested and advised of his Miranda rights. During a post-arrest interview, Osuna again identified himself as Hector Osuna, a United States citizen. When an 4 UNITED STATES V. OSUNA-ALVAREZ agent informed Osuna that his fingerprint search revealed that his claimed identification was false, Osuna admitted that his name was actually Miguel Osuna, that he was a Mexican citizen, and that he was using his twin brother Hector’s name and passport to enter the United States. Later that month, Osuna was charged by indictment with aggravated identity theft, in violation of 18 U.S.C. § 1028A, among other charges not at issue in this opinion. Osuna proceeded to a bench trial. At trial, Osuna’s twin brother Hector testified that he had lost his passport several months earlier, and denied knowing how the passport came into Osuna’s possession. Hector expressly denied giving Osuna permission to use his passport. However, the court deemed Hector’s testimony not credible, and found that Hector was “complicit in turning over the passport” to Osuna. Following trial, the district court found Osuna guilty. II. Osuna argues that he should not have been convicted of violating 18 U.S.C. § 1028A as a matter of law because he did not steal his twin brother’s passport and therefore did not use the passport “without lawful authority.” 18 U.S.C. § 1028A. This is a question of statutory interpretation, which we review de novo. See United States v. Thompson, 728 F.3d 1011, 1015 (9th Cir. 2013). III. Section 1028A, “Aggravated Identity Theft,” provides, in relevant part: UNITED STATES V. OSUNA-ALVAREZ 5 Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years. 18 U.S.C. § 1028A(a)(1) (emphasis added). Osuna argues that the phrase “without lawful authority” excludes cases where, as here, the fact finder determined that the defendant used another person’s means of identification with the other person’s consent or permission. Osuna specifically contends, and the district court agreed, that Osuna had permission to use his brother’s passport and, therefore, no violation occurred. Thus, Osuna urges the court to construe literally the section’s title, “Aggravated Identity Theft,” so as to require actual theft or misappropriation of the means of identification. Our sister circuits have universally rejected this argument. See United States v. Reynolds, 710 F.3d 434 (D.C. Cir. 2013); United States v. Lumbard, 706 F.3d 716 (6th Cir. 2013); United States v. Spears, 697 F.3d 592 (7th Cir. 2012), vacated, 729 F.3d 753 (7th Cir. 2013) (en banc); United States v. Ozuna-Cabrera, 663 F.3d 496 (1st Cir. 2011); United States v. Retana, 641 F.3d 272 (8th Cir. 2011); United States v. Abdelshafi, 592 F.3d 602 (4th Cir. 2010); United States v. Carrion-Brito, 362 F. App’x 267 (3d Cir. 2010); United States v. Hurtado, 508 F.3d 603 (11th Cir. 2007), abrogated in part on other grounds by FloresFigueroa v. United States, 556 U.S. 646 (2009); United States v. Hines, 472 F.3d 1038 (8th Cir. 2007). We agree with this authority and now hold that, despite its title, § 1028A does not require theft as an element of the offense. 6 UNITED STATES V. OSUNA-ALVAREZ “[O]ur inquiry begins with the statutory text, and ends there as well if the text is unambiguous.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009) (quoting McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th Cir. 2008)). By its terms, § 1028A explicitly covers a defendant who “uses” a means of identification “without lawful authority.” 18 U.S.C. § 1028A(a)(1). This language clearly and unambiguously encompasses situations like the present, where an individual grants the defendant permission to possess his or her means of identification, but the defendant then proceeds to use the identification unlawfully. See Reynolds, 710 F.3d at 436. Black’s Law Dictionary defines “lawful” as “[n]ot contrary to law,” and defines “authority” as “[t]he right or permission to act legally on another’s behalf.” Black’s Law Dictionary 152 & 965 (9th ed. 2009); see also Lumbard, 706 F.3d at 723; Ozuna-Cabrera, 663 F.3d at 499. “Combining these definitions, § 1028A(a)(1) reasonably proscribes the transfer, possession, or use of another person’s means of identification, absent the right or permission to act on that person’s behalf in a way that is not contrary to the law.” Ozuna-Cabrera, 663 F.3d at 499. Thus, regardless of whether the means of identification was stolen or obtained with the knowledge and consent of its owner, the illegal use of the means of identification alone violates § 1028A. Although the district court found that Hector was complicit in Osuna’s use of the passport, Osuna nonetheless made “use” of the passport to falsely identify himself as a United States citizen—hence, he used the passport “without lawful authority.” See, e.g., Reynolds, 710 F.3d at 436; Ozuna-Cabrera, 663 F.3d at 499. Because we conclude that the statutory text is unambiguous, consistent with the majority of our sister circuits, we reject Osuna’s argument that § 1028A requires UNITED STATES V. OSUNA-ALVAREZ 7 evidence that the defendant stole the means of identification at issue. AFFIRMED.

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