FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN DOE,

Defendant-Appellant.

No. 15-10063

D.C. No.

3:14-cr-00042-

MMD-VPC-1

OPINION

Appeal from the United States District Court

For the District of Nevada

Miranda M. Du, District Judge, Presiding

Submitted July 5, 2016*

San Francisco, California

Filed November 29, 2016

Before: Barry G. Silverman and Jacqueline H. Nguyen, 

Circuit Judges, and Marvin J. Garbis, Senior District 

Judge.

**

 * The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

** The Honorable Marvin J. Garbis, Senior United States District 

Judge for the District of Maryland, sitting by designation.
2 UNITED STATES V. DOE

Opinion by Judge Garbis

SUMMARY***

Criminal Law

The panel affirmed a criminal judgment in a case in 

which the defendant was convicted of, among other offenses, 

aggravated identity theft in violation of 18 U.S.C. § 1028A.

The panel held that evidence of a defendant’s repeated 

submission of false identifying information as part of 

successful applications to a government agency is sufficient 

to permit a reasonable jury to find that the defendant knew 

that the information belonged to a real person, as required to 

prove a violation of § 1028A.

The panel held that the 78-month sentence, imposed after 

an upward variance from the 18-to-24 month Guidelines 

range, was not substantively unreasonable.

 *** 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. DOE 3

COUNSEL

Robert W. Story, Reno, Nevada, for Defendant-Appellant.

Shannon M. Bryant, Assistant United States Attorney; 

Elizabeth O. White, Appellate Chief; Daniel G. Bogden, 

United States Attorney; United States Attorney’s Office, 

Reno, Nevada; for Plaintiff-Appellee.

OPINION

GARBIS, Senior District Judge:

Appellant John Doe1 appeals from his convictions of 

aggravated identity theft under 18 U.S.C. § 1028A, for 

knowingly possessing and using the name, birth date, and 

social security number of another person when he applied to 

renew a Nevada driver’s license and when he submitted a 

Form I-9 Employment Eligibility Verification form to his 

employer.

Doe contends that the Government failed to prove an 

element of the offense – specifically that he knew that the 

false identity he used belonged to a real person. He also 

challenges the reasonableness of his 78-month sentence.

This case presents the question, not previously addressed 

by this Court, of whether evidence of a defendant’s repeated 

submission of false identifying information as part of 

successful applications to a government agency is sufficient 

 1 To the date of this writing the Defendant, who has refused to 

provide his name, has not been affirmatively identified and is referred to 

as “John Doe.”
4 UNITED STATES V. DOE

to permit a reasonable jury to find that the defendant knew 

that the information belonged to a real person. We hold that 

it is and that Doe’s convictions were thus based upon 

sufficient evidence. We also hold that the district court did 

not abuse its discretion with regard to Doe’s sentence.

I. Background

The victim of Doe’s identity theft, referred to herein as 

“V,” was born in San Jose, California in 1963 and, in or 

about 1977, was assigned a social security number and card. 

No later than 1987, V’s uncle sold V’s birth certificate and 

provided his social security number to a man, not identified 

at trial. In 1987, someone, most likely Doe, used V’s birth 

certificate, name, and social security number to obtain a 

“replacement” social security card from the Social Security 

Administration. For some 27 years, until Doe’s arrest in 

2014, V’s identification was used without his authorization, 

most likely by Doe. In this regard, V received notices from 

the Social Security Administration (approximately every 

three years) that his name and social security number were 

being used in connection with multiple jobs in different 

places, including Nevada, with which V had no connection.

The evidence establishes that Doe’s use of V’s identity 

began no later than 2002 when Doe obtained a driver’s 

license upon an application to the Nevada Department of 

Motor Vehicles (“DMV”) that contained Doe’s photograph 

but V’s name and birth date. Doe renewed this license 

multiple times by resubmitting V’s identifying information 

and had such a license in his possession when arrested in 

2014.

On or around May 15, 2013, Doe submitted such a 

driver’s license together with a social security card with V’s 
UNITED STATES V. DOE 5

number to Doe’s employer with a Form I-9 Employment 

Eligibility Verification.

The unauthorized use of V’s identity caused him 

problems for approximately three decades. In the 1990s, his 

driver’s license was suspended twice—including once while 

he was employed as a truck driver—because of DUIs 

committed in a different state by another person using his 

social security number. Tax refund checks due to him from 

the IRS were sent to a person in Nevada using his social 

security number. His wages were garnished three times to 

pay child support for children that were not his. More likely 

than not, these problems were caused by Doe’s misuse of 

V’s identity. In any event, it is clear that in 2013 V’s 

unemployment benefits were halted because of child support 

payments owed (and not made) by Doe. V contacted Doe’s 

employer to notify it that an employee was unlawfully using 

his identity.

On or around June 4, 2014, Doe was arrested in 

connection with a fraud investigation conducted by the 

Nevada DMV and the Department of Homeland Security. 

At that time, he was found to be in possession of a Nevada 

driver’s license bearing his photo and V’s identification 

information.

In this case, Doe was charged with two counts of 

aggravated identity theft under 18 U.S.C. § 1028A, unlawful 

production of an identification document under 18 U.S.C. 

§ 1028(a)(1), and false attestation in an immigration matter 

in violation of 18 U.S.C. § 1546(b)(3). At trial, he was 

convicted on all charges. The district court sentenced Doe 

to 78 months of incarceration.

Doe appeals, challenging (1) the sufficiency of the 

evidence upon which his aggravated identity theft 
6 UNITED STATES V. DOE

convictions were based, and (2) the reasonableness of his 

sentence.

We have jurisdiction under 28 U.S.C. § 1291.

II. Discussion

A. Sufficiency of the Evidence

1. Standard of Review

This Court reviews the sufficiency of evidence 

supporting a defendant’s conviction de novo. We must 

construe the evidence “in the light most favorable to the 

prosecution” and must affirm the conviction if “any rational 

trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.” United States v. Nevils, 

598 F.3d 1158, 1161 (9th Cir. 2010) (en banc) (quoting 

Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

2. The Evidence Was Sufficient

Title 18 U.S.C. § 1028(A) provides that a person who 

“knowingly transfers, possesses, or uses, without lawful 

authority, a means of identification of another person” in 

connection with an enumerated felony shall be sentenced to 

two years imprisonment. 18 U.S.C. § 1028A (2012).

To prove a violation of § 1028A, the Government must 

prove beyond a reasonable doubt that:

1. The defendant knowingly transferred or 

used a means of identification of another 

person without legal authority;
UNITED STATES V. DOE 7

2. The defendant knew the means of 

identification belonged to a real person; and

3. The defendant did so in relation to one of 

the crimes enumerated in 18 U.S.C. 

§ 1028A(c).

See Flores-Figueroa v. United States, 556 U.S. 646, 647, 

655–56 (2009); United States v. Miranda-Lopez, 532 F.3d 

1034, 1037, 1040 (9th Cir. 2008).

Doe does not debate the Government’s proof of the first 

and third elements. Doe was proven to have used V’s means 

of identification without legal authority. And the use was 

proven to be in relation to crimes enumerated in 18 U.S.C. 

§ 1028A(c), i.e., the violations of 18 U.S.C. §§ 1028(a)(1) 

and 1546(b)(3) for which he was convicted in the instant 

case.2

Doe acknowledges that the Government proved that V 

was a real person.3 Doe contends however, that, without 

direct proof of his knowledge (such as proof that he knew V 

or had any connection to the sale of V’s birth certificate and 

identifying information), the evidence was insufficient to 

 2 The felonies enumerated in § 1028A(c) include violation of “any 

provision contained in this chapter (relating to fraud and false 

statements).” 18 U.S.C. § 1028A(c)(4). 18 U.S.C. §§ 1028(a)(1) & 

1546(b)(3) are provisions contained in the chapter.

3 In United States v. Cardenas, 408 F. App’x 106 (9th Cir. 2011), 

the defendant’s conviction under § 1028A was reversed because no 

evidence was presented proving that a real person actually existed with 

the name and birth date given by the defendant to Border Patrol.
8 UNITED STATES V. DOE

establish his knowledge that V was a real person. The Court 

does not agree.

While direct evidence of the knowledge element is often 

presented in § 1028A prosecutions,4 this Court has 

recognized that the element can be proven by circumstantial 

evidence. See Miranda-Lopez, 532 F.3d at 1040 (citing 

United States v. Villanueva–Sotelo, 515 F.3d 1234, 1249 

(D.C. Cir. 2008) (“[P]roving the defendant knew the stolen 

identification belonged to another person should present no 

major obstacle, as such knowledge will often be 

demonstrated by the circumstances of the case.”)). Thus, the 

issue here presented is whether the circumstantial evidence 

was sufficient to establish Doe’s knowledge that the identity 

of V was that of a real person.

When “determining the sufficiency of circumstantial 

evidence, the question is not whether the evidence excludes 

every hypothesis except that of guilt but rather whether the 

trier of fact could reasonably arrive at its conclusion.” 

Nevils, 598 F.3d at 1165 (quoting United States v. Eaglin,

571 F.2d 1069, 1076 (1977)).

 4 As noted in Flores-Figueroa, 556 U.S. at 656, in “the classic case 

of identity theft, intent is generally not difficult to prove. For example, 

where a defendant has used another person’s identification information 

to get access to that person’s bank account, the Government can prove 

knowledge with little difficulty. The same is true when the defendant 

has gone through someone else’s trash to find discarded credit card and 

bank statements, or pretends to be from the victim’s bank and requests 

personal identifying information. Indeed, the examples of identity theft 

in the legislative history (dumpster diving, computer hacking, and the 

like) are all examples of the types of classic identity theft where intent 

should be relatively easy to prove, and there will be no practical 

enforcement problem.”
UNITED STATES V. DOE 9

The Government presented ample circumstantial 

evidence to establish Doe’s knowledge that V was a real 

person. Most persuasive was proof of Doe’s repeated 

success in obtaining renewed Nevada driver’s licenses 

bearing Doe’s photograph and V’s name, date of birth, and 

social security number. In this regard, the Government 

introduced copies of applications to the DMV for Nevada 

driver’s licenses and state identity cards in V’s name. The 

“image history” associated with the applications dating back 

to 20025 showed photographs of Doe taken when he applied 

for reissuances of the driver’s license and/or identity cards 

in V’s name. Denise Riggleman, a DMV Compliance 

Enforcement Investigator, described the process involved in 

obtaining a new license or identity card through the Nevada 

DMV. Ms. Riggleman testified that new applicants must 

present proof of identity documents, such as a social security 

card or birth certificate, along with their applications to a 

DMV technician in person. This information is input into 

the DMV computer system, and the actual license is mailed 

to the applicant seven to ten days later.

In addition, the Government proved that Doe had 

submitted such a Nevada driver’s license and a social 

security card in V’s name as proof of identity in connection 

with an I-9 Employment Verification Form that he submitted 

to his employer.

In regard to the knowledge element of the § 1028A 

charge, the district court instructed the jury:

Repeated and successful testing of the 

authenticity of a victim’s identifying 

information by submitting it to a government 

 5 Prior to 2002, the Nevada DMV did not maintain image histories.
10 UNITED STATES V. DOE

agency, bank or other lender is circumstantial 

evidence that you may consider in deciding 

whether the defendant knew the identifying 

information belonged to a real person as 

opposed to a fictitious one. It is up to you to 

decide whether to consider any such evidence 

and how much weight to give it.

The jury found Doe guilty on both § 1028A charges.

This Court holds that the evidence of Doe’s repeated 

successful use of V’s identity in applications subject to 

scrutiny was sufficient to permit the jury to find that he knew 

that V was a real person. The Court’s holding is consistent 

with decisions issued by its sister Circuits. E.g., United 

States v. Valerio, 676 F.3d 237, 244–45 (1st Cir. 2012) 

(“‘[W]illingness to subject [a] social security number 

repeatedly to government scrutiny’ is evidence that allows a 

reasonable jury to find that a defendant knew that a stolen 

identity belonged to a real person.”); United States v. Doe, 

661 F.3d 550, 562–63 (11th Cir. 2011) (“[A] defendant’s 

repeated and successful testing of the authenticity of a 

victim’s identifying information prior to the crime at issue is 

powerful circumstantial evidence that the defendant knew 

the identifying information belonged to a real person as 

opposed to a fictitious one.”); United States v. GomezCastro, 605 F.3d 1245, 1249 (11th Cir. 2010) (concluding 

that “repeatedly and successfully test[ing] the authenticity of 

the birth certificate and social security card” to obtain a 

license, benefit card, and passport was sufficient to show that 

the identity belonged to a real person); United States v. 

Holmes, 595 F.3d 1255, 1258 (11th Cir. 2010) (“A 

reasonable jury also could have found that Holmes’s 

willingness to subject the social security card repeatedly to 

government scrutiny established that she knew, all along, 
UNITED STATES V. DOE 11

that the social security card belonged to a real person and 

was not a forgery.”); United States v. Foster, 740 F.3d 1202, 

1207 (8th Cir. 2014) (“[R]epeated subjection of [a victim’s] 

identity to a lender’s scrutiny provides strong circumstantial 

evidence that the [defendant] knew the identity was real.”).

Doe, asserting that he is a Mexican national, contends 

that it was unreasonable for the jury to find that he knew how 

U.S. government agencies and their verification procedures 

worked. His not being a citizen, although a resident, of the 

United States is a fact that the jury could have considered 

relevant but does not render the jury’s finding unreasonable. 

As stated in Gomez-Castro, 605 F.3d at 1249 (affirming the 

conviction of a citizen of the Dominican Republic), 

“[K]nowledge [of verification processes] can be inferred 

reasonably based on ordinary human experience for which 

no special proof is required; a trier of fact can rely on 

common sense.” See also Holmes, 595 F.3d at 1258 

(concluding that a reasonable jury could infer that a 

defendant (not a United States citizen) knew that the 

government “requested and sometimes retained for many 

weeks” the submitted personal information to verify 

authenticity).

In sum, the Court holds that the circumstantial evidence 

presented, establishing Doe’s repeated successful use of V’s 

identification information, sufficed to permit the jury to find 

that he knew that V was a real person. Hence, he was 

properly convicted on two counts charging aggravated 

identity theft in violation of 18 U.S.C. § 1028A.
12 UNITED STATES V. DOE

B. Reasonableness of Sentence

1. Standard of Review

A district court’s sentencing determination—whether 

inside or outside of the determined Sentencing Guidelines 

range—is reviewed for abuse of discretion. A sentence will 

be set aside only if it is substantively unreasonable or the 

result of a procedural error. See Gall v. United States, 

552 U.S. 38, 51 (2007); United States v. Autery, 555 F.3d 

864, 872–73 (9th Cir. 2009). In reviewing the substantive 

reasonableness of a sentence, we consider whether the 

district court identified the correct legal standard and 

whether its findings were illogical, implausible, or without 

support in the record. United States v. Hinkson, 585 F.3d 

1247, 1251 (9th Cir. 2009). Our review is deferential, and 

relief is appropriate only in rare cases when the appellate 

court possesses “a definite and firm conviction that the 

district court committed a clear error of judgment.” United 

States v. Ressam, 679 F.3d 1069, 1087–88 (9th Cir. 2012) 

(en banc) (quoting United States v. Amezcua-Vasquez, 

567 F.3d 1050, 1055 (9th Cir. 2009)).

2. The Sentence Was Not Substantively 

Unreasonable

The district court determined that Doe’s Offense Level 

was 14 and his Criminal History Category was II, yielding a 

Guideline range of 18 to 24 months.6 However, the district 

court varied upward and imposed a sentence of 78 months.

 6 The Court reduced Doe’s recommended Offense Level from 16 to 

14 after finding that there should not be a two-level obstruction of justice 

adjustment by virtue of Doe’s refusal to admit his identity, an action 

intertwined with his constitutional right to deny his guilt.
UNITED STATES V. DOE 13

Doe contends that his 78-month sentence is substantively 

unreasonable in light of the factors set forth in 18 U.S.C. 

§ 3553(a). Specifically, he claims the sentence is of greater 

duration than necessary to comply with the purposes of 

sentencing and is unsupported by credible evidence.

At sentencing, the district court stated:

The Guideline sentence, I think, does not 

adequately reflect the seriousness of the 

defendant’s conduct in terms of the length, 

the nature of his conduct, and the profound 

effect on the victim. The defendant did not 

just steal the victim’s identity and use it for a 

few years, he stole and utilized the victim’s 

identity for about 27 years, which is more 

than half of the victim’s life.

. . . .

And, as I noted, defendant didn’t just live 

a normal, law-abiding life. He committed 

offenses under the victim’s identity and 

further perpetuated the harm to the victim, 

having these offenses reflect under the 

victim’s identity. And, as noted, defendant’s 

conduct caused terrible disruptions to the 

victim and his family.

The Court finds that the district court properly 

considered, and stated the reasons for, the upward variance 

to the sentence imposed. In particular, the district court 

emphasized the substantial harm done to V over many years, 

as well as the criminal offenses committed by Doe in V’s 

name, as revealed by Nevada public records. The district 
14 UNITED STATES V. DOE

court’s decision was within a range of reasonableness. We 

hold that the district court’s imposition of a 78-month 

sentence was neither illogical, implausible, nor without 

support in the record. Hinkson, 585 F.3d at 1251.

III.Conclusion

For the foregoing reasons, we affirm Doe’s convictions 

and sentence.