FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

October 6, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-15642

Non-Argument Calendar

________________________

D. C. Docket No. 04-60148-CR-JIC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JUAN CARLOS CASTILLO-HERNANDEZ, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 6, 2005)

Before ANDERSON, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

Juan Carlos Castillo-Hernandez appeals his eight-month sentence for
2

possession of a false social security number, in violation of 42 U.S.C.

§ 408(a)(7)(B). Castillo-Hernandez argues that the district court erred when it

applied a six-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(9)(C)(i) because

the social security number that he attempted to use to obtain a port access clearance

badge did not belong to an “actual individual” as that term is used by the

guidelines, because the number was assigned to a person who died almost 30 years

before Castillo-Hernandez committed the criminal offense. Castillo-Hernandez

contends that there is no ambiguity in the word “actual,” which means existing and

not merely potential or possible. Thus, he argues that an actual individual could

not include a person who died almost 30 years ago. Castillo-Hernandez further

argues that his reading of the term “actual individual” is supported by the reasons

underlying the enhancement, which is designed to punish the defendant for harm,

such as a damaged credit rating, damage to an individual’s reputation,

inconvenience, and other difficulties, that a victim of identity theft may face. 

Castillo-Hernandez argues that these harms, and thus the reason for applying the

sentencing enhancement, are not present where the means of identification used

belonged to a deceased person. 

We review de novo whether the district court properly applied

§ 2B1.1(b)(9)(C)(i) to Castillo-Hernandez’s underlying conduct. See United States
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v. Spell, 44 F.3d 936, 938 (11th Cir. 1995). Section 2B1.1 states that if “the

offense involved . . . the unauthorized transfer or use of any means of identification

unlawfully to produce or obtain any other means of identification . . . increase by 2

levels. If the resulting offense level is less than level 12, increase to level 12.” 

U.S.S.G. § 2B1.1(b)(9)(C)(i) (2003). “‘Means of identification’ has the meaning

given that term in 18 U.S.C. § 1028(d)(7), except that such means of identification

shall be an actual (i.e., not fictitious) individual, other than the defendant[.]” 

U.S.S.G. § 2B1.1, cmt. n.8 (emphasis added); see also United States v. Auguste,

392 F.3d 1266, 167-68 (11th Cir. 2004) (affirming the enhancement where the

defendant had used her own name on the credit cards that she obtained by using the

living victim’s existing lines of credit and did not open new lines of credit). 

We have held that the language in the sentencing guidelines is to be given its

plain and ordinary meaning. United States v. Pompey, 17 F.3d 351, 354 (11th Cir.

1994). Thus, because “i.e.” is an abbreviation for “that is” or “that is to say,” the

plain meaning of the language used by Congress was that “not fictitious” was the

exclusive definition for “actual.” See Black’s Law Dictionary 511 (6th ed. 1991). 

See also United States v. Bush, 404 F.3d 263, 267 (4th Cir. 2005) (affirming the

defendant’s conviction for using a false social security number to obtain a car loan,

in violation of 42 U.S.C. § 408(a)(7)(B), where the social security number used
 Castillo-Hernandez’s request for oral argument is denied. 1

4

was assigned to a deceased person). Accordingly, in light of the plain meaning of

the phrase “actual (i.e., not fictitious),” we affirm. 

In addition, we reject Castillo-Hernandez’s’s argument that the enhancement

should not apply because he did not actually obtain a port access clearance badge. 

The policy of the guidelines is to provide a lesser punishment for an attempt,

“unless the defendant completed all the acts the defendant believed necessary for

successful completion of the substantive offense or the circumstances demonstrate

that the defendant was about to complete all such acts but for apprehension or

interruption by some similar event beyond the defendant's control.” U.S.S.G.

2X1.1(b)(1) (emphasis added). In this case, Appellant was apprehended just before

he completed all of the acts and so under the guidelines, his actions do not

constitute an attempt.

AFFIRMED.1