Federal Criminal Defense Lawyer Virginia Aggravated Identity Theft Wire Fraud

Federal Criminal Defense Lawyer Virginia Aggravated Identity Theft Wire Fraud

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JONATHAN GIANNONE, Defendant - Appellant.

No. 07-4844, No. 08-5020, No. 08-8386

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

360 Fed. Appx. 473;

December 2, 2009, Argued

January 7, 2010, Decided

In sentencing Giannone, the district court applied an intended loss figure in the amount of $ 132,327.17 to determine Giannone's offense level, applying U.S.S.G. 2B1.1(b)(1). The court also applied a two-level sentencing enhancement on the wire fraud counts pursuant to U.S.S.G. 2B1.1(b)(10)(B) because the offenses involved the trafficking of unauthorized access devices.

Issues:

Whether the district court gave an erroneous instruction to the jury on the meaning of "knowingly" in 18 U.S.C. 1028A, the aggravated identity theft statute?

Whether the district court erred by imposing a two-level sentencing enhancement under U.S.S.G. 2B1.1(b)(10)?

While the government concedes that the failure to give an instruction consistent with Flores-Figueroa was plain error that affected Giannone's substantial rights, it urges that we not take notice of the error because allowing the conviction to stand will not "seriously affect the fairness, integrity, or public reputation of judicial proceedings." It argues that the proceedings overwhelmingly demonstrated that Giannone knew that the means of identification he sold to Johnson belonged to other people. The situation here is not unlike that in Cedelle where we declined to notice plain error when overwhelming evidence indicated that a defendant knew he was receiving depictions of actual minors engaged in sexually explicit conduct, even though the jury was not instructed on the required knowledge element. Cedelle, 89 F.3d at 185-86. The evidence here clearly demonstrates that Giannone not only trafficked in the means of identification of others but knew that the means of identification belonged to real persons.

Issue 2:

Whether the district court erred by imposing a two-level sentencing enhancement under U.S.S.G. 2B1.1(b)(10)?

The court held that "The application notes to the Guidelines governing aggravated identity theft state that this enhancement should not apply to a defendant convicted of aggravated identity theft when the defendant is also convicted of the offense underlying the aggravated identity offense, in this case the wire fraud. See U.S.S.G. 2B1.6, App. Note 2. The reason is obvious. The aggravated identity theft charge itself imposes an additional, consecutive two-year sentence for the unauthorized use or transfer of the account numbers, and therefore the enhancement in 2B1.1(b)(10) would amount to double counting. Even though Giannone did not object to the enhancement below, we take notice of the plain error, vacate Giannone's sentence, and remand for resentencing."

This court affirm Giannone's convictions and vacate his sentence, remanding for resentencing without the two-level enhancement under U.S.S.G. 2B1.1(b)(10).

POST COMMENT

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