PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 06-5169

DWIGHT JOSE MITCHELL, a/k/a

Marcus Jackson,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Greenville.

Henry F. Floyd, District Judge.

(6:05-cr-01167-HFF)

Argued: December 6, 2007

Decided: March 6, 2008

Before MICHAEL and KING, Circuit Judges,

and Catherine C. BLAKE, United States District Judge for the

District of Maryland, sitting by designation.

Reversed by published opinion. Judge Michael wrote the opinion, in

which Judge King and Judge Blake joined. 

COUNSEL

ARGUED: Thomas Edward Vanderbloemen, GALLIVAN, WHITE

& BOYD, P.A., Greenville, South Carolina, for Appellant. W. Walter

Wilkins, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee. ON BRIEF: James Barlow Loggins, Assistant Federal

Public Defender, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Greenville, South Carolina, for Appellant. Reginald I.

Lloyd, United States Attorney, Columbia, South Carolina, for Appellee. 

OPINION

MICHAEL, Circuit Judge: 

Dwight Jose Mitchell used a false driver’s license and counterfeit

checks in the name of Marcus Jackson to buy merchandise and return

it for cash refunds. Section 1028A(a)(1) of Title 18 makes it a crime,

called aggravated identity theft, to use a means of identification of

another person (a specific person) in the commission of certain felonies, including bank fraud. Mitchell pled guilty to bank fraud, but he

appeals his conviction, rendered in a bench trial, for aggravated identity theft. Although there are real persons named Marcus Jackson,

Mitchell did not couple his use of that name with a sufficient amount

of correct, distinguishing information to identify a specific Marcus

Jackson, as required by the statute. We therefore reverse Mitchell’s

conviction for aggravated identity theft. 

I.

Mitchell was charged in a three-count superseding indictment with

bank fraud in violation of 18 U.S.C. § 1344 (count I), transporting

counterfeit securities in interstate commerce in violation of 18 U.S.C.

§ 2314 (count II), and aggravated identity theft in violation of 18

U.S.C. § 1028A(a)(1) (count III). He pled guilty to count I and not

guilty to count III; the government dismissed count II. Mitchell was

tried by the court without a jury on count III’s charge of aggravated

identity theft. Count III alleged that on or about October 3, 2005, in

the District of South Carolina Mitchell used, without lawful authority,

a means of identification of another person. Specifically, this count

alleged that Mitchell used a Georgia driver’s license in the name of

Marcus Jackson, to commit bank fraud by passing counterfeit checks

drawn on Wachovia Bank. Stipulated facts, which we recount first,

made up much of the evidence at trial. 

2 UNITED STATES v. MITCHELL
Around January 2002 Mitchell, who was a legal alien, embarked

on a scheme to defraud banks and retailers. Using a computer and

check writing software, Mitchell printed counterfeit personal checks.

The checks showed a targeted bank as drawee and listed Marcus Jackson as drawer. As an identification document Mitchell used a false

Georgia driver’s license featuring his own photograph but bearing the

name Marcus Jackson. Using the counterfeit checks and the false

identification, Mitchell would buy merchandise from a retailer at one

store and return it for a cash refund at another store operated by the

same retailer.

Mitchell pursued this scheme until October 4, 2005, when he was

arrested by city police in Greenville, South Carolina, after passing

counterfeit checks drawn on Wachovia Bank in the name of Marcus

Jackson. Mitchell passed the checks at Marshall’s, a local retail store,

using as identification the false Georgia driver’s license in the name

of Marcus Jackson. When Mitchell was arrested, he had in his possession the false license and blank counterfeit checks, all in the name of

Marcus Jackson. The driver’s license number on the false license does

not exist in the database of the Georgia Department of Driver Services. The department has, however, issued licenses in the name of

Marcus Jackson. 

The government introduced the false driver’s license in the name

of Marcus Jackson, 2446 New Hope Dr., East Point, GA, DOB: 10-

19-77. Two additional government exhibits from the Georgia Department of Driver Services showed that valid driver’s licenses had been

issued to (1) Marcus Deyone Jackson, 2133 Stanton Rd., #B1, East

Point, GA, DOB: 2-18-1977; and (2) Marcus Jackson, 100 Morrow

Rd., Apt. B2, Forest Park, GA, DOB: 2-24-1976. 

Mitchell, who was the only witness, testified in his own defense.

He said that he did not know anyone named Marcus Jackson when he

used the false driver’s license and counterfeit checks in that name.

According to Mitchell, he "just went in the phone book," because

"when [he] couldn’t think [of] a name," he "went and found [one]."

J.A. 43. Mitchell further testified that he "ma[d]e up" the name Marcus Jackson. Id. This testimony, taken in the light most favorable to

the government, is sufficient to establish that Mitchell got the name

Marcus Jackson from a telephone book. 

UNITED STATES v. MITCHELL 3
At the close of all the evidence Mitchell moved for a judgment of

acquittal, arguing that the name Marcus Jackson was not sufficiently

unique to identify a specific person. According to Mitchell, other

identifiers were needed to identify a specific Marcus Jackson, and

thus he did not use the means of identification of a specific person.

The government argued that it only had to prove that a real person

named Marcus Jackson existed, and the evidence showed there were

at least two such persons. The district court agreed with the government, denied Mitchell’s motion for acquittal, and found him guilty of

aggravated identity theft. 

The district court sentenced Mitchell to forty months in prison on

the bank fraud count and a consecutive twenty-four months in prison

on the aggravated identity theft count. Mitchell appeals only his conviction for aggravated identity theft. 

II.

The question in this appeal is whether Mitchell, while engaging in

bank fraud, committed aggravated identity theft by using "a means of

identification of another person." 18 U.S.C. § 1028A(a)(1). The

answer turns on the meaning of the phrase "a means of identification

of another person" and the sufficiency of the evidence. The meaning

of the statute is a legal question that we review de novo. United States

v. Montejo, 442 F.3d 213, 215 (4th Cir. 2006). In reviewing the sufficiency of the evidence, we must sustain a guilty verdict "if there is

substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80 (1942).

Substantial evidence "is evidence that a reasonable [trier] of fact

could accept as adequate and sufficient to support a [finding of] a

defendant’s guilt beyond a reasonable doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). 

A.

The aggravated identity theft statute, 18 U.S.C. § 1028A, was

enacted to "provide[ ] enhanced penalties for persons who steal identities to commit terrorist acts, immigration violations, firearms

offenses, and other serious crimes." H.R. Rep. No. 108-528 at 3

(2004), 2004 U.S.C.C.A.N. at 779. An offense occurs under subsec4 UNITED STATES v. MITCHELL
tion (a)(1) of the statute when a person "during and in relation to any

[enumerated] felony violation . . . knowingly transfers, possesses, or

uses, without lawful authority, a means of identification of another

person." 18 U.S.C. § 1028A(a)(1). The enumerated companion felonies include mail, bank, and wire fraud, acquisition of customer information by false pretenses, theft of public money or property, and

violations relating to alien registration, immigration, and citizenship.

Id. § 1028A(c). Conviction under § 1028A(a)(1) triggers a mandatory

two-year prison term that must run consecutively to any other term

imposed. Id. § 1028A(b). 

In considering the meaning of § 1028A(a)(1)’s phrase "a means of

identification of another person," our starting point is the language of

the statute. When "the statute’s language is plain, the sole function of

the courts is to enforce it according to its terms," except in the rare

case in which "the literal application . . . will produce a result demonstrably at odds with the intentions of its drafters." United States v.

Ron Pair Enters., Inc., 489 U.S. 235, 241-42 (1989) (citations and

internal quotation marks omitted). In assessing for plain meaning,

"[w]e do not . . . [consider] statutory phrases in isolation; we read

statutes as a whole." United States v. Morton, 467 U.S. 822, 828

(1984); Ayes v. United States Dep’t of Veterans Affairs, 473 F.3d 104,

108 (4th Cir. 2006). 

Here, the statute provides a definition that plainly clarifies the

meaning of "a means of identification of another person." "Means of

identification" is defined as

any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual, including any — 

(A) name, social security number, date of birth, official

State or government issued driver’s license or identification

number, alien registration number, government passport

number, employer or taxpayer identification number; 

(B) unique biometric data, such as fingerprint, voice

print, retina or iris image, or other unique physical representation; 

UNITED STATES v. MITCHELL 5
(C) unique electronic identification number, address, or

routing code; or 

(D) telecommunication identifying information or

access device (as defined in section 1029(e)).

18 U.S.C. § 1028(d)(7) (emphasis added). The definition’s overriding

requirement is that a means of identification — that is, an identifier

or identifiers — must be sufficient "to identify a specific individual."

More particularly, the definition of a means of identification encompasses "any name or number that may be used, alone or in conjunction with any other information, to identify a specific individual." 18

U.S.C. § 1028(d)(7) (emphasis added). The definition, in other words,

allows for an identifier, taken alone or together with other information, to qualify as a means of identification so long as the sum total

of information identifies a specific individual. Many of the identifiers

listed as examples in the definition, such as a social security number,

an alien registration number, or a fingerprint, are unique and therefore

sufficient alone to identify a specific individual. The definition, however, also lists non-unique identifiers that are not sufficient to identify

a specific individual. A name alone, for example, would likely not be

sufficiently unique to identify a specific individual because many persons have the same name. Likewise, a date of birth by itself would

not be sufficient because multitudes of persons are born on the same

day. When, however, a non-unique identifier is coupled with other

information to identify a specific individual, "a means of identification of another person" is created. 

When we examine § 1028A as a whole, we see that Congress distinguishes between a means of identification of a specific (or actual)

person and a false identification document. Section 1028A also makes

it a crime to use a false identification document in connection with

a terrorism offense. 18 U.S.C. § 1028A(a)(2). A false identification

document is "a document of a type commonly intended or commonly

accepted for the purposes of identification of individuals" that (a) "is

not issued by or under the authority of a governmental entity" or, if

it was so issued, it "was subsequently altered for purposes of deceit"

and (b) "appears to be issued by or under the authority" of a specified

governmental or quasi-governmental entity or organization. 18 U.S.C.

6 UNITED STATES v. MITCHELL
§ 1028(d)(4).1

 This definition reveals that a false identification document may, but need not, include "a means of identification of another

person" (a specific individual). Although a false identification document as defined by § 1028(d)(4) will include identifiers such as a

name, only a false identification document that includes one or more

identifiers sufficient to identify a specific individual may involve use

of "a means of identification of another person" under the statute. The

examination of § 1028A as a whole thus confirms that the distinguishing feature of a means of identification of another person is that it

must identify a specific individual. 

The statutory definition of "means of identification" gives plain

meaning to the phrase "means of identification of another person."

The phrase means simply a means of identification (an identifier or

combination of identifiers) that may be used to identify a specific

individual. This plain meaning is conclusive because it does not contravene Congress’s intent to create a separate offense that provides

enhanced penalties for persons who steal or use the identities of others to commit certain crimes. 

B.

Mitchell argues that the district court erred when it held as a matter

of law that the use of another person’s name by itself constitutes the

use of a means of identification of another person (a specific individual) under § 1028A. Mitchell is correct. As we have said, a bare name

may not be sufficiently unique — indeed, it is not likely to be sufficiently unique — to identify a specific person. That is the case here,

as the undisputed evidence confirms. Two persons named Marcus

Jackson have a driver’s license issued by the Georgia Department of

Driver Services. The false Georgia driver’s license used by Mitchell

bore the name Marcus Jackson, but that name used alone did not identify one of the real Marcus Jacksons. In other words, the name alone

was not sufficient to identify a specific Marcus Jackson, as required

by the statute. 

1The false Georgia driver’s license used by Mitchell meets the definition of a false identification document. Mitchell, however, was not

charged with a crime that has as an element the use of a false identification document. 

UNITED STATES v. MITCHELL 7
The government argues that we may still affirm the guilty verdict

because other identifiers in the false driver’s license were sufficient,

in conjunction with the name Marcus Jackson, to identify the real

Marcus Jackson who lived in East Point, Georgia. This argument centers on whether the evidence is sufficient to permit a finding that

Mitchell, in presenting the false driver’s license as identification to

pass counterfeit checks at the retail store, used a means of identification of a specific Marcus Jackson. The government relies on three

non-unique identifiers on the false license, first and last name, city of

residence, and year of birth, that match identifiers on the license of

Marcus Deyone Jackson. An examination of the two documents, however, reveals substantial differences in the more specific details of the

non-unique identifiers. To begin with, the names were not exactly the

same. The false license bore the name Marcus Jackson, but the real

license bore the name Marcus Deyone Jackson. Both licenses listed

East Point, Georgia, as the city of residence. The false license, however, did not have anything close to the correct street name and

address of the real Marcus Deyone Jackson. The false license had the

same year of birth as that of Marcus Deyone Jackson, but the month

and day of birth did not match. In addition, the driver’s license numbers on the two documents did not match, and the false license had

a number that had never been issued by the Georgia Department of

Driver Services. In other words, the one unique identifier on the false

license, the license number, was wholly fictional.2

In sum, there was no (valid) unique identifier on the false license

that could be used by itself to identify Marcus Deyone Jackson. Moreover, the many particulars of the non-unique identifiers, the particulars of name, address, and date of birth, were a hopeless muddle of

non-matching and matching information. The non-matching identifi2A unique identifier belonging to a real person, such as a governmentissued driver’s license number, identifies "a specific individual" for purposes of § 1028A(a)(1). See 18 U.S.C. § 1028(d)(7)(A)-(D); United

States v. Montejo, 442 F.3d at 214 (stating, in affirming a conviction for

aggravated identity theft, that social security numbers and alien registration numbers are unique identifiers); see also United States v. Melendrez,

389 F.3d 829, 834 (9th Cir. 2004) (explaining, in applying U.S.S.G.

§ 2B1.1(b)(9)(C) (2002), that a real social security number identifies a

specific individual, even when paired with an incorrect name). 

8 UNITED STATES v. MITCHELL
ers (middle name treatment, street name and address, and month and

date of birth) were much more specific. The matching identifiers (first

and last name only, city of residence, and year of birth) were too general to identify a specific person in the circumstances here. The false

driver’s license that Mitchell tendered simply could not be used to

identify a specific Marcus Deyone Jackson. Accordingly, the evidence does not establish that Mitchell used a means of identification

of another person when he presented the false license at the retail

store. More to the point, a reasonable trier of fact could not conclude

that the evidence was sufficient to find Mitchell guilty of aggravated

identity theft beyond a reasonable doubt. His conviction under 18

U.S.C. § 1028A(a)(1) (count III) is therefore

REVERSED.

UNITED STATES v. MITCHELL 9