2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-29-2010

USA v. Anthony Smith

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1512

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Recommended Citation

"USA v. Anthony Smith" (2010). 2010 Decisions. Paper 192.

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NOT PRECEDENTIAL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 DISTRICT 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.

 (Filed: 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 an 
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electronics 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 identity theft and aiding and abetting, in violation of 18 U.S.C. §§ 

1028A 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 identity theft; 48 months were added for the identity theft offenses.

Defendant appeals only his sentence, contending that the total 69-month 

term of imprisonment 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 identification of another person “in relation to” certain 

enumerated felonies,

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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; 

violations of the Immigration and Nationality Act; and similar offenses. 18 U.S.C. 

§1028A(c).
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for such [listed] felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 

1028A(a)(1).

To forestall 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 violations 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 imposed 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 guidelines and policy statements . . . .” 

18 U.S.C. § 1028A(b)(4).

Thus, after imposing one mandatory two-year consecutive period of 

incarceration, the district court must decide whether the sentences for additional 

violations of § 1028A are to run consecutively or concurrently. In exercising its 

discretion, the court should consider “applicable guidelines 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 comments of the district judge 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 was 
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substantial, and the needs for deterrence and protection 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 under § 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, 545 F.3d at 681. Furthermore, finding 

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. Tomko, 562 F.3d 

558, 568 (3d Cir. 2009) (en banc) (internal 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 affirmed.