* Pursuant to 5 TH C IR
. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. R. 47.5.4.

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10127 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. BARBARA ANN DAVIS, Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas No. 3:07-CR-90-ALL

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges. PER CURIAM: *

Barbara Davisappeals the fourteen-month sentence she received following her guilty-plea conviction for violations of 20 U.S.C. § 1097(a) and 18 U.S.C. United States Court of Appeals

Fifth Circuit 

### F I L E D October 7, 2008 Charles R. Fulbruge III ClerkNo. 08-10127

2 § 1029(a)(2). For the first time on appeal, she challenges the enhancement under U.S.S.G. § 2B1.1(b)(10)(C)(i) for the unauthorized use ofher niece’s identifying information toproduce or obtain other meansofidentification, to-wit: a debit card containing $10,000offinancial aid, which she used for her own personal expenses. The enhancement is reviewed for plain error only. United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000). Davis contends that the subsection does not apply to her, because the use of her niece’s identification was not unauthorized within the meaning of the guideline, for the reason that the niece consented toher assisting in applying for financial aid and, in so doing, either explicitly or implicitly gave her authorization to obtain a debit card for that purpose. Davis alternatively argues that, even if the niece did not authorize her to create the debit card, the enhancement is inappropriate, because the niece authorized her to use the identifying information for some purpose (to obtain financial aid); Davis reasons that the enhancement applies only where the defendant has no right to use the identifying information at all. The record demonstrates that the victim did not consent, explicitly or implicitly, to the acquisition of the debit card and did not otherwise give Davis blanket authorization touse identifying information beyond completing her Free Application for Financial Student Aid. Rather, the victim told agents she was never advised that she had been approved for financial aid, never completed or authorized the completion of the required Promissory Note and Verification Form, and specifically did not authorize Davis to obtain a debit card on her behalf. Because Davis unauthorizedly used the victim’s identifying information to obtain the card, the enhancement applies on its f ace. See § 2B1.1(b)(10)(C)(i) and comment. (n.9(C)(i), (ii)(I), (II)). Davis provides no support for the argument that the enhancement can never apply ifthevictim consents tosome authorized use ofidentifying information. The argument is controverted by the plain text of the subsection, which re-No. 08-10127

3 quires“the unauthorized transfer or use ofany meansofidentification unlawfully to produce or obtain other means of identification.” See § 2B1.1(b)(10)(C)(i). There is no requirement that the victim’s information be obtained unlawfully, as Davis suggests. See id. Davis has not demonstrated any plain error, see United States v. Olano, 507 U.S. 725, 734 (1993), so the judgment is AFFIRMED.