2010 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

11-29-2010 

# U S A v . An thon y S mith

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 10-1512

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2010

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2010 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" U SA v . An thon y S mith " (2010). 2010 D e cisio n s . P a pe r 192. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2010/1921 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 10

- 1512

____________ UNITED STATES OF AMERICA

v. ANTHONY SMITH,

Appellant

____________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DI STRICT OF PENNSYLVANIA

(D.C. Crim

. No. 2

- 09

- cr - 00293

- 001 ) District Judge: Honorable Mitchell S. Goldberg

____________ Submitted Under Third Circuit L.A.R. 34.1(a)

November 16, 2010 Before: AMBRO, FISHER and WEIS, Circuit Judges

.

( File d : November 29, 2010)

____________ OPINION

____________
WEIS, Circuit Judge

.

Defendant used false identification to fraudulently gain access to money
from five separate accounts at various banks and to open a credit account with an2

electronic s store , which he used to secure substantial quantities of goods. He pleaded guilty to four counts of bank fraud and aiding and abetting , in violation of 18 U.S.C. § §
1344 and 2; one count of access device fraud , a violation of 18 U.S.C. § 1029(a); five
counts of aggravated identi t y theft and aiding and abetting , in violation of 18 U.S.C. § §
102 8A and 2 ; and one count of conspiracy , a violation of 18 U.S.C. § 371.

The District Court imposed a sentence of 21 months on all counts except those for aggravated identi ty theft ; 48 months were added for the identity theft offenses

.

Defendant appeals only his sentence, contending that the total 69

- month
term of im

prisonment was unreasonable and, particularly , that the District Court erred by imposing consecutive 24

- month sentences for two of the five § 1028A violations. We
will affirm. Sentences for aggravated identity theft are governed by a mandatory minimum regimen under 18 U.S.C. § 1028A. Specifically, a person convicted of improperly using a means of identificat ion of another person “in relation to” certain
enumerated felonies , 1 including bank fraud, “shall , in addition to the punishment provided

1 

### These felony violations include theft of public property, money or rewards; theft, embezzlement or misapplication by a bank officer or employee; theft from employee benefit plans; false personation of citizenship; mail, bank and wire fraud; violatio ns of the Immigration and Nationality Act; and similar offenses. 18 U.S.C. §1028A(c).3

for such [listed] felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).
To forest all a term of incarceration that might be excessive in a particular case, the statute grants the court discretion to determine whether , after the first sentence imposed under § 1028A (which must be consecutive to the enumerated felony), any remaining viola tions shall run concurrently or consecutively

.

“[A ] term of imprisonment imposed on a person for a violation of this section may, in the discretion of the court, run concurrently, in whole or in part, only with another term of imprisonment that is impose d by the court at the same time on that person for an additional violation of this section, provided that such discretion shall be exercised in accordance with any applicable g uidelines and policy statements . . . .” 18 U.S.C. § 10 28A(b)(4).

Thus , after imposing one m andatory two

- year consecutive period of incarceration, the d istrict c ourt must decide whether the sentences for additional violations of § 1028A are to ru n consecutively or concurrently. In e xercising its discretion, the court should consid er “applicable g uidelines and policy statements issued by the Sentencing Commission” and make a record of the factors considered. See
U.S.S.G. § 5G1.2 cmt. 2(B); United States v. Lee , 545 F.3d 678, 681 (8th Cir. 2008).

We have closely reviewed the comme nts of the district ju dge at the sentencing hearing. The Court found that, although the defendant’s mental health problems were real and significant, the crime was serious, the risk of recidivism was4

substantial, and the needs for deterrence and protectio n of the public were great. Accordingly, the district judge imposed a sentence of 21 months (at the low end of the Guideline range) for the conspiracy, bank fraud, and access device fraud charges. In addition, he ordered that two of the five sentences un der § 1028A would run concurrently.

Because the District Court reviewed the pertinent factors in reaching the latter decision and made an appropriate record of its findings, we are persuaded that the Court properly exercised its discretion. See Lee , 54 5 F.3d at 681. Furthermore, f inding

no error in the record, we defer to “the district court ’s determination that the [18 U.S.C. ] § 3553(a) factors , on a whole , justify the sentence. ” United States v. Tom k o , 562 F.3d 558, 568 (3d Cir. 2009) (en banc) (int ernal quotations omitted).

In addition to the term of imprisonment, the Court also directed supervised release and restitution. Defendant does not challenge these provisions, and we need not
comment on them.

Accordingly, the judgment will be affirme d.