Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 07-1624

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT ALFANO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

 Lynch, Lipez and Howard,

Circuit Judges.

David Shaughnessy on brief for appellant.

Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,

United States Attorney, on brief for appellee.

April 2, 2008
With the challenged enhancement, defendant's guidelines 1

sentencing range was 24 to 30 months, and the court sentenced

defendant to the bottom of that range. Without the enhancement,

the range would be 9 to 15 months. 

The government argues that defendant not merely forfeited 2

this argument but affirmatively waived it by not objecting to the

enhancement at sentencing and assuming that it applied in arguing

for a below-guidelines sentence. Such conduct, however, amounts to

a forfeiture, not a waiver. See United States v. Rivera, 448 F.3d

82, 86 n.1 (1st Cir. 2006).

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Per Curiam. This sentencing appeal raises a single

issue--whether the district court plainly erred in concluding that,

in committing bank fraud, defendant "used a[] means of

identification unlawfully to produce or obtain any other means of

identification" within the meaning of USSG § 2B1.1(b)(10)(C)(i),

and therefore increasing his offense level and resulting guidelines

sentencing range. As defendant acknowledges, because he did not 1

raise this issue below, our review is for plain error only.2

Finding none, we affirm.

Defendant makes a three-pronged attack on the

enhancement. Only the first prong is developed in any depth in

defendant's opening brief. Assuming that the second two prongs

nevertheless warrant appellate review, but see United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding that undeveloped

arguments are waived), they do not rise to the level of plain

error.

Defendant's first argument is that he used the name of a

fictitious person to cash one of the counterfeit checks that was
The indictment, to which defendant pled guilty, charged him 3

with obtaining money in the custody of a federally insured bank,

the Bank of New York, by means of false and fraudulent pretenses,

and aiding and abetting his wife to do so, all in violation of 18

U.S.C. § 1344. Those pretenses, which defendant admitted to,

involved creating and using counterfeit checks bearing the account

number of Toys R Us and the payor name of Atlantic Coast

Construction. 

Bank account numbers are clearly "means of identification." 4

See USSG § 2B1.1, comment. (n.9(A)) (incorporating the definition

contained in § 1028(d)(7)); 18 U.S.C. § 1028(d)(7)(C) (defining

means of identification to include "any . . . unique electronic

identification number . . . or routing code"); see also United

States v. Scott, 448 F.3d 1040, 1045 (8th Cir. 2006). 

In his reply brief, defendant argues, for the first time, 5

that those entities were not "individuals" within the meaning of

application note 9(A) or 18 U.S.C. § 1028(d)(7). We therefore do

not consider that question here. See United States v. Eirby, 515

F.3d 31,37 n.4 (1st Cir. 2008) (deeming arguments raised for the

first time in appellant's reply brief to be waived). 

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the subject of the indictment. It is true that the phrase "means 3

of identification" as used in section 2B1.1(b)(10)(C)(i) includes

only means of identification of "an actual (i.e., not fictitious)

individual." USSG § 2B1.1., comment. (n.9(A)). However, the means

used here included not only the fictitious name of one of the

payees, but also the account number of Toys R Us and the payor 4

name of Atlantic Coast Contractors, both actual entities. The 5

fact that the name of a fictitious person was also used on one of

the checks is immaterial since the applicable definition of "means

of identification" includes "any name or number that may be used,

alone or in conjunction with any other information." 18 U.S.C. §

1028(d)(7) (emphasis added). Similarly, the fact that defendant
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also used a fake driver's license purporting to identify him as

Steven Chapman, is equally immaterial. In fact, at the change of

plea hearing, the prosecution expressly disavowed any reliance on

defendant's production or use of that license.

Defendant's second argument focuses on the requirement

that the means of identification used must be of persons "other

than the defendant" himself. USSG § 2B1.1, comment. (n.9(A)). As

already indicated, the means of identification used here were of

two entities--Toys R Us and Atlantic Coast Contractors--other than

the defendant himself. So that argument clearly fails. 

Defendant's third argument--if preserved and further

developed--might have presented a closer question. That argument--

in enhanced form--appears to be that section 2B1.1(b)(10)(C)(i)

requires that two means of identification be used, one to create

the other, and that, here, the second means is absent. In other

words, even if defendant used "means of identification" to produce

the counterfeit checks, those checks were not "another means of

identification," like a credit card, a driver's license, or a bank

loan, the examples used in the background note to section 2B1.1. 

What constitutes "another means of identification" for

this purpose is far from clear under the guidelines themselves or

existing caselaw. This court has never considered the question.

In a case factually similar to this one, one circuit concluded that

the enhancement applied to using other names and account numbers to
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produce counterfeit checks. Scott, 448 F.2d at 1045. Other

jurists have reached differing conclusions while agreeing that the

"convoluted language" of the guideline and commentary is difficult

to parse. See United States v. Melendrez, 389 F.3d 829, 831-37

(9th Cir. 2004); id. (dissenting opinion) at 837-40; see also

United States v. Newsome, 439 F.3d 181, 187 n.7 (3d Cir. 2006)

(declining to follow Melendrez). Given that state of the law, we

cannot say that any error in applying that enhancement here was

sufficiently "plain" to warrant correction in the absence of

preservation. United States v. Goodhue, 486 F.3d 52, 58 (1st Cir.

2007). As we have previously explained, "[t]he plain error

doctrine is premised on the assumption that parties must take

responsibility for protecting their legal rights and, accordingly,

that only the clearest and most serious of forfeited errors should

be corrected on appellate review." United States v. Padilla, 415

F.3d 211, 223-24 (1st Cir. 2005) (en banc). The errors alleged

here are not of that clarity or caliber.

Affirmed.