Of the Seventh Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 09-1877

UNITED STATES OF AMERICA,

Appellee,

v.

MARY L. LANDRY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

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

Before

Torruella, Ripple, and Lipez, Circuit Judges. *

Tina Schneider for appellant. 

Margaret D. McGaughey, Appellate Chief, with whom Paula

D. Silsby, United States Attorney, was on brief, for appellee.

January 28, 2011
 The district court had jurisdiction pursuant to 18 U.S.C. 1

§ 3231.

This court has jurisdiction over the final decision of the 2

district court pursuant to 28 U.S.C. § 1291.

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RIPPLE, Circuit Judge. Mary L. Landry was indicted in

the United States District Court for the District of Maine on nine

counts involving wire fraud, aggravated identity theft and social

security fraud. The district court held a two-day trial, and the 1

jury returned a guilty verdict on all nine counts. After

sentencing, Ms. Landry filed a timely notice of appeal. In her 2

appeal, she claims that the district court committed reversible

error when it admitted two pieces of evidence, that the prosecutor

engaged in improper argument during closing arguments and that the

district court improperly considered the general increase in

identity theft crimes in determining the appropriate sentence. For

the reasons set forth in this opinion, we affirm the judgment of

the district court.

I

BACKGROUND

From 2001 to 2003, Ms. Landry was employed as a customer

account manager by MBNA, a credit card company. At MBNA, Ms.

Landry’s job involved the collection of past due credit card

accounts. She was granted a security clearance, which gave her

access to customers’ social security numbers and dates of birth.
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In 2003, MBNA, following its established policy, terminated Ms.

Landry’s employment for a drunk-driving conviction. Beginning in

November 2005, Ms. Landry was employed by Verizon. At Verizon, Ms.

Landry could access customer accounts, including social security

numbers and dates of birth.

Admiral Mary E. Landry (“Admiral Landry”), not the

defendant, was notified in 2007 by Discover that someone was using

her date of birth and social security number to open a credit card

account. Admiral Landry immediately placed fraud alerts on her

credit cards and enrolled in a fraud monitoring system. While Ms.

Landry was employed at MBNA, Admiral Landry had a MBNA-issued

credit card, but was never late in any of her payments. In 2000,

Admiral Landry had opened an account with Verizon for cable, phone

and DSL in her home.

In April 2007, the defendant, Ms. Landry, received preapproved offers in the mail for two credit cards, one from Chase

Bank and another from Discover Bank. Ms. Landry applied online for

both cards, providing her own name. According to Ms. Landry, she

entered her own birth date, but, because of her apprehension about

internet security, she entered all 9s as her social security

number. Chase approved Ms. Landry’s credit card application, but

Discover required further review. Ms. Landry ultimately decided

not to open a card with Discover.

In May 2007, after making a purchase at Fashion Bug, Ms.
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Landry applied for a store credit card upon the encouragement of

the sales clerk. Fashion Bug’s procedure required the sales clerk

to input the customer’s name, address and date of birth from a

driver’s license. The customer would then input her social

security number on a number pad. Ms. Landry maintains that she

again entered all 9s as her social security number. Ms. Landry’s

application was not approved.

Around June 2007, Ms. Landry was unable to access her

Chase credit card account online. When Ms. Landry called Chase, it

asked her to verify the last four digits of her social security

number. Ms. Landry provided the last four digits of her social

security number, which did not match the credit card account. Ms.

Landry also tried providing all 9s, which also did not match.

Chase closed the account.

Ms. Landry was indicted on nine counts: three counts of

wire fraud, three counts of aggravated identity theft, two counts

of social security fraud and one count of fraud in connection with

an access device or credit card. The charges were based on Ms.

Landry’s allegedly knowing and unauthorized use of another

individual’s identity to apply for three credit cards, to obtain a

credit card and to use that credit card.

The Government maintains that Ms. Landry had access to

Admiral Landry’s identification information through her employment,

and having defaulted on student loans, Ms. Landry’s poor credit
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provided her with a financial motive. Her alleged plan was to

deceive credit card companies by using the social security number

and date of birth of an individual who shared her same first and

last name. The Government maintains that Ms. Landry used Admiral

Landry’s social security number and date of birth on the Chase and

Discover applications. For the Fashion Bug credit card, however,

the Government submits that Ms. Landry used only Admiral Landry’s

social security number because, under that store’s procedure, the

store clerk enters the customer’s date of birth based on the

customer’s provided identification.

A two-day trial took place in 2009. To support its

claim, the Government provided the testimony of MBNA and Verizon

representatives. Both employers stated that Ms. Landry had the

security clearance to have accessed Admiral Landry’s social

security number and date of birth through their systems. The

Government also presented evidence that Ms. Landry was in debt, had

defaulted on her student loans of over $60,000 and was subject to

a wage garnishment order. Employees from different credit card

companies testified that an applicant must supply her own social

security number and that the computer system would not input a

social security number on its own.

We shall present additional, relevant factual background

in the course of our consideration of each of Ms. Landry’s specific

contentions.
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II

DISCUSSION

Ms. Landry submits that her conviction should be reversed

because: (1) the district court admitted evidence of a 2008

traffic stop at which she supplied false identifying information;

(2) the district court admitted evidence of the drunk-driving

conviction; (3) the Government referenced in its closing arguments

the cost and expense of bringing expert witnesses; and (4) the

district court considered the growth of identity fraud crimes

during sentencing. We consider each issue in turn.

A.

Ms. Landry first contends that the district court erred

in admitting, under Federal Rule of Evidence 404(b), evidence about

a traffic stop at which she supplied false identification

information. We review a district court’s ruling on the

admissibility of evidence under Rule 404(b) for an abuse of

discretion. United States v. Hicks, 575 F.3d 130, 141 (1st Cir.

2009), cert. denied, 130 S. Ct. 647 (2009). We conclude that the

traffic stop is admissible under Rule 404(b).

In June 2008, after Ms. Landry had filled out the credit

card applications, but prior to her indictment in this case,

Officer Steven Jordan stopped Ms. Landry for a traffic infraction.

When asked for her name, social security number and date of birth,
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Ms. Landry provided Officer Jordan with her sister’s name, a madeup social security number and a made-up date of birth. Officer

Jordan ascertained Ms. Landry’s actual identity by checking vehicle

registration, booking photographs and verifying physical traits,

and discovered that Ms. Landry had a suspended license.

Before trial, the district court initially directed the

Government not to mention evidence of the 2008 traffic stop, but

warned Ms. Landry that the evidence would be admissible if she

opened the door to it. After Ms. Landry’s opening statement

indicated a defense of good faith and computer error, the district

court ruled that the evidence of the traffic stop would be

admissible. The court explained that the evidence “goes directly

to the specific issues that are isolated in the rule.” Trial Tr.

vol. I, 81. The court pointed out that Ms. Landry was claiming “a

computer system error and a good-faith defense” and that the jury

therefore was entitled to consider evidence that she had used, in

another instance, “another name, including a social security number

that was not hers.” Id. That evidence could be used, the court

explained, “to conclude opportunity, intent, preparation, plan,

knowledge, and absence of mistake or accident.” Id. at 82.

Federal Rule of Evidence 404(b) prohibits the admission

of prior bad acts to establish an individual’s character or

propensity to commit a crime. Rule 404(b) does permit, however,

the admission of prior bad acts “for other purposes, such as proof
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of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” Fed. R. Evid.

404(b). Bad acts committed subsequent to the charged behavior are

admissible under Rule 404(b) as long as they meet the criteria set

forth in the Rule. See United States v. Tse, 375 F.3d 148, 155

(1st Cir. 2004).

Consonant with the established case law of our circuit,

a district court employs a two-part test to determine admissibility

of evidence under Rule 404(b). Udemba v. Nicoli, 237 F.3d 8, 15

(1st Cir. 2001). First, it must determine whether the evidence has

“special” relevance other than establishing propensity; with

respect to this inquiry, Rule 404(b)’s list of purposes is not

exhaustive. Id. In Udemba, we concluded that the evidence was

admissible under Rule 404(b) in part because it “was specially

relevant to a contested issue in the case, namely, the extent of

damages attributable to emotional distress.” Id. In so

concluding, we “reject[ed] the [] concept that Rule 404(b) contains

a comprehensive list of all the ways in which evidence of other bad

acts may be specially relevant.” Id. To determine whether

proffered evidence has special relevance, the court considers the

temporal relationship of the other act and the degree of similarity

to the charged crime. United States v. Varoudakis, 233 F.3d 113,

119 (1st Cir. 2000). Second, the court must consider whether Rule

403 requires exclusion of the evidence because the danger of unfair
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prejudice substantially outweighs the probative value. Id. at 121.

1. Specially Relevant

In admitting evidence of the traffic stop, the district

court said that it showed “opportunity, intent, preparation, plan,

knowledge, and absence of mistake or accident.” Trial Tr. vol. I,

81. We believe, more precisely, that the 2008 traffic stop is

relevant to show intent or knowledge because the evidence rebuts an

innocent involvement defense.

Bad acts, other than the behavior charged, can be the

basis for “inferr[ing] . . . that, after being involved in a number

of similar incidents, the defendant must have had a mental state

that is inconsistent with innocence.” 2 Jack Weinstein & Margaret

Berger, Weinstein’s Federal Evidence § 404.22[1][a] (2d ed. 2010).

This circuit, and others, have admitted evidence under Rule 404(b)

to rebut a defense of innocent involvement. The cases do not

always specify under which of the enumerated categories of Rule

404(b) the evidence is admitted, recognizing the overlapping and

non-exhaustive nature of that listing. In United States v.

Rodriguez, 215 F.3d 110, 114 (1st Cir. 2000), the defendant was

charged with conspiracy and attempt to import, with an individual

named Vega, illegal drugs at a pier. He submitted as his defense

that he was at the sea with Vega for an innocent reason. He

claimed that, as a fisherman, he occasionally would fish in those
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waters. Id. at 116. The Government introduced evidence of another

drug importation, at the same location, that involved the defendant

and Vega. Id. at 115. We determined that the district court had

not abused its discretion in admitting the evidence because the

Government had a right to counter the idea that the defendant was

just “innocently caught up” in the events. Id. at 119. Similarly,

in United States v. Wyatt, 561 F.3d 49, 53 (1st Cir. 2009), cert.

denied, 129 S. Ct. 2818 (2009), there was a suggestion that the

defendant was tricked into participating in fraudulent transactions

by others. We concluded that evidence of the prior fraudulent

transactions in which the defendant had participated “would assist

the jury in determining whether [the defendant] was ‘duped’ . . .

or whether [the defendant] fully understood the fraudulent nature

of the charged transactions.” Id. Also, in United States v. Lugo

Guerrero, 524 F.3d 5, 14 (1st Cir. 2008), we held that the district

court had not abused its discretion in admitting prior evidence of

robberies to counter the defendant’s theory that he was present

innocently in the getaway car with two bank robbers. We commented

that evidence of the prior bank robberies “makes it unlikely that

[the defendant’s] presence in the vehicle was a mere coincidence.”

Id.

Other circuits also have allowed Rule 404(b) evidence,

not always under any specific category, to counter an innocent

involvement defense. See, e.g., United States v. Howell, 231 F.3d
Even though Ms. Landry does not assert a defense of 3

mistake, her claim of innocent involvement is an adequate basis for

admitting evidence to rebut that claim. Notably, Rule 404(b)

evidence is admissible to show intent even when such evidence is

not admissible to illustrate absence of mistake on the part of the

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615, 628 (9th Cir. 2000) (holding Rule 404(b) evidence of previous

drug convictions relevant to rebut defense that the defendant was

“merely present” (quotation marks omitted)); United States v.

Huels, 31 F.3d 476, 479 (7th Cir. 1994) (allowing, on plain error

review, Rule 404(b) evidence to show absence of mistake because the

defendant had maintained that “he wandered into the marijuana

garden by chance while hunting for deer” and had never been on that

plot of land previously); United States v. Zackson, 12 F.3d 1178,

1182-83 (2d Cir. 1993) (admitting Rule 404(b) evidence of prior

drug trafficking with co-defendant to show intent because defendant

denied any participation and claimed innocent association).

Ms. Landry’s defense is one of innocent involvement. She

does not contend that she made a mistake. Rather, she claims that

she acted innocently, providing her own date of birth and a social

security number of all 9s. The culprit, according to Ms. Landry,

is the computer system, which mixed up her identity with that of

Admiral Landry. The line of cases admitting Rule 404(b) evidence

to counter a defense of innocent involvement supports the district

court’s determination that the circumstances of her encounter with

Officer Jordan at the traffic stop are relevant to show intent or

knowledge.3
defendant. See United States v. Ward, 190 F.3d 483, 489 (6th Cir.

1999) (determining evidence of prior drug conviction was not valid

to show absence of mistake because mistake was not at issue, but

evidence was valid to show the defendant had intent to distribute

cocaine).

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We also believe that the traffic stop is sufficiently

similar to be relevant. “The other bad act need not be identical

to the crime charged so long as it is sufficiently similar to allow

a juror to draw a reasonable inference probative of knowledge or

intent.” United States v. Landrau-Lopez, 444 F.3d 19, 24 (1st Cir.

2006). We have considered Ms. Landry’s contention that the traffic

stop is not sufficiently similar because she provided the officer

with a made-up social security number, not an actual one as alleged

in the charged crime. We find probative, however, her willingness

in both situations to lie when asked for personal identification

information. Because Ms. Landry’s defense was good faith and

computer error, Ms. Landry’s willingness to give a false, even if

made-up, social security number is suggestive of her intent to

provide another’s identity as her own.

The bad act also was not so distant in time from the

charged event as to be irrelevant. The submission of the credit

card applications and use of the Chase card occurred from April to

June 4, 2007; the traffic stop occurred on June 18, 2008. The

traffic stop, then, occurred a little over a year after the charged

crimes. See Lugo Guerrero, 524 F.3d at 14 (concluding that the

prior bank robberies were not too remote because they occurred
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within fifteen months of the charged robbery).

The district court therefore did not abuse its discretion

in concluding that the 2008 traffic stop was specially relevant

under Rule 404(b) to show Ms. Landry’s intent.

2. Rule 403

We now turn to the second part of the test, namely

whether the evidence meets the standard of Rule 403. Rule 403

provides that relevant evidence “may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice.” Fed. R. Evid. 403. Danger of unfair prejudice occurs

if the evidence “invites the jury to render a verdict on an

improper emotional basis.” Varoudakis, 233 F.3d at 122. Moreover,

“Rule 403 judgments are typically battlefield determinations, and

great deference is owed to the trial court’s superior coign of

vantage.” United States v. Shinderman, 515 F.3d 5, 17 (1st Cir.

2008).

The district court was entitled to conclude that it was

unlikely that the jury would be influenced emotionally by evidence

of the traffic stop. The traffic stop involved no graphic or

shocking events that might play upon a jury’s passions. The

district court was also careful in handling the traffic stop

evidence. It provided a specific limiting instruction cautioning

the jury not to consider the traffic stop as evidence of
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propensity. In addition, the district court allowed the evidence

only after verifying that Ms. Landry would be raising a defense of

good faith and computer error. Given the limiting instruction and

nature of the evidence, the danger of unfair prejudice from the

traffic stop was low. Accordingly, the district court did not

abuse its discretion in admitting evidence of the 2008 traffic stop

under Rule 404(b).

B.

Ms. Landry also seeks review of the district court’s

decision to admit evidence of her drunk-driving conviction for

which MBNA terminated her employment. We review the district

court’s admission of this evidence for abuse of discretion. Hicks,

575 F.3d at 141. The district court determined that all of Ms.

Landry’s prior convictions on her driving record were inadmissible

under Rule 609(a)(2). Specifically, the district court found that

the driving record convictions were not germane to Ms. Landry’s

credibility. Some convictions were very remote, with one at least

eight years old, and no similarity existed between the convictions

and the alleged crime. The district court also determined that,

under Rule 609(a)(1), the prejudicial effect of the driving record

convictions outweighed any probative value. In particular, the

district court observed that “[t]he plain fact of the matter is

jurors don’t tend to like people who drive drunk, and their view of
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the defendant’s two [drunk-driving] convictions might affect their

ability to view fairly the evidence in this case.” Trial Tr. vol.

II, 294.

During Ms. Landry’s testimony, however, the district

court ruled in a sidebar that it would allow evidence of the drunkdriving charge that had lead to Ms. Landry’s termination from MBNA.

Ms. Landry testified on direct examination that she had worked for

MBNA, that she had received a security clearance and that she had

left in 2003. The district court found that, without evidence of

the termination, “she’s leaving the impression with the jury . . .

that her record at MBNA is effectively unimpeachable.” Id. at 348.

Ms. Landry’s counsel countered that the Government could elicit

testimony about the termination without mentioning the specific

drunk-driving charge. The court responded that “she’s going to be

in a better position . . . to have the reason be [drunk-driving]

than have the jury speculate that the reason might be something

related to dishonesty.” Id. at 349. The district court therefore

allowed testimony about the drunk-driving charge that resulted in

Ms. Landry’s termination.

The basis of Ms. Landry’s termination could have been

handled by stipulation. The stipulation could have been crafted so

as to make it clear that her arrest had precipitated her

termination without specifically informing the jury that she had

been accused of drunk driving. Nonetheless, we conclude that the
 Relying on United States v. Hansen, 434 F.3d 92 (1st Cir. 4

2006), the Government maintains that Ms. Landry failed to preserve

this issue for appeal because she conceded in the sidebar that the

Government could ask questions about the termination. In Hansen,

the court found that the defendant had waived his right to object

to jury instructions when, after the instructions were given, the

defendant stated, “I am content.” Id. at 101. In this case, Ms.

Landry clearly objected to questioning about the drunk-driving

conviction. Ms. Landry conceded that the Government could ask

about the termination, but, unlike the defendant in Hansen, Ms.

Landry protested to questioning about the underlying drunk-driving

conviction. The existence of a termination and the underlying

drunk-driving conviction are distinct facts. We conclude that Ms.

Landry did not consent to questioning about the drunk-driving

conviction and therefore did not waive the issue.

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district court did not abuse its discretion in permitting the

evidence.4

Ms. Landry is correct that, given the court’s earlier

ruling on the prejudicial nature of evidence of a drunk-driving

conviction, Rule 609 cannot serve as an independent predicate for

the admission of the conviction. The parties agree that the drunkdriving conviction is not a specific instance of dishonesty, and

therefore Rule 608 cannot serve as the basis for admission.

Our inquiry must focus, therefore, on whether Ms. Landry

opened the door to her drunk-driving conviction. Even when, prior

to trial, a court has ruled evidence of prior convictions

inadmissible, a defendant can, in the course of her testimony, open

the door to evidence about prior convictions. Rules 402 and 403

govern in these situations. Specifically, “[p]rior convictions are

admissible under Rules 402 and 403 to contradict specific

testimony, as long as the evidence is relevant and its probative
- 17 -

value is not substantially outweighed by the danger of unfair

prejudice.” United States v. Norton, 26 F.3d 240, 244 (1st Cir.

1994).

We conclude that the district court did not abuse its

discretion in concluding that Ms. Landry’s testimony did open the

door. As Ms. Landry conceded, her testimony on direct examination

created a false impression that made the circumstances of her

termination relevant for questioning. Furthermore, although the

prejudicial effect of a drunk-driving conviction is significant,

the district court reasonably concluded that the alternative--jury

speculation--was worse. The district court acted within its

discretion in admitting evidence of the drunk-driving charge.

C.

Ms. Landry also maintains that the Government engaged in

improper argument during its closing arguments by emphasizing the

cost and expense of providing its expert witnesses for this trial.

During its initial closing argument, the Government told the jury

that, “[a]t considerable expense, the government provided testimony

from witnesses” who understood how the credit card companies’

computer systems worked. Trial Tr. vol. II, 428. The Government

also stated that it “went at great length here not just to bring a

regional investigator, not to bring someone local, but to make sure

we got the right person.” Id. at 440. The Government noted again
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that “the government, again, went to length to provide three

witnesses with specialized knowledge.” Id. at 442. 

Because Ms. Landry made no objection to the prosecutor’s

statements at trial, we review for plain error whether the

Government engaged in improper argument. Plain error requires a

showing “(1) that an error occurred (2) which was clear or obvious

and which not only (3) affected the defendant’s substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001). This type of error “will not be

recognized unless it caused a miscarriage of justice or seriously

undermined the integrity or public reputation of judicial

proceedings.” United States v. Henderson, 320 F.3d 92, 105 (1st

Cir. 2003) (internal quotation marks and citation omitted).

Reversal is necessary only if the remarks in closing

argument have “so poisoned the well that the trial’s outcome was

likely affected.” Henderson, 320 F.3d at 107 (quotation marks and

citation omitted). Factors for consideration include: “(1) the

severity of the prosecutor’s misconduct, including whether it was

deliberate or accidental; (2) the context in which the misconduct

occurred; (3) whether the judge gave curative instructions and the

likely effect of such instructions; and (4) the strength of the

evidence against the defendants.” United States v. NelsonRodriguez, 319 F.3d 12, 38 (1st Cir. 2003) (quoting United States
- 19 -

v. Whibey, 75 F.3d 761, 771-72 (1st Cir. 1996)) (quotation marks

omitted).

We do not believe there was plain error. To be sure, the

Government’s statements were improper: The reference to getting

“the right person” constituted improper bolstering of the

credibility of the Government’s expert witnesses, and the

statements regarding the time and expense in procuring those expert

witnesses were plainly irrelevant. The Government’s statements

cannot, however, fairly be characterized as a grave breach.

Moreover, Ms. Landry can point to, at most, only four objectionable

statements. All of these statements are only one to two sentences

each. Whether these statements were intentional or not is unclear,

but the offensive remarks comprise at most a small part of the

closing arguments. No curative instructions were given, but this

omission was due to Ms. Landry’s failure to object. Indeed, in

another case involving allegations of improper statements made by

the Government in closing argument, we noted our “concern[] with

the fact that there was no contemporaneous objection or request for

curative instructions, thus depriving the district judge of the

opportunity to provide special or additional instructions.” United

States v. Castro-Davis, 612 F.3d 53, 68 (1st Cir. 2010). It is

also likely that the prosecutor’s remarks had no appreciable effect

on the jury. Given the high standard for plain error and the

consideration of these factors, no plain error occurred.
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D.

Ms. Landry submits that in imposing the sentence, the

district court should not have considered the fact that identity

fraud as a crime is increasing in frequency, and, therefore,

requires additional deterrence. She notes that, even though she

was subject to a mandatory consecutive sentence of twenty-four

months under the Identity Theft Penalty Enhancement Act, 18 U.S.C.

§ 1028A, the district court considered the growing crime of

identity theft in setting her sentence at the top of the guideline

range for her convictions for wire fraud, fraud in connection with

an access device and social security fraud. Notably, however, she

does not argue that the court erred in any respect in calculating

the guideline range, in considering the statutory sentencing

factors or in understanding the facts of the case.

At the sentencing hearing, the district court imposed a

sentence at the top of the guideline range. The district court,

discussing its consideration of all the factors in 18 U.S.C. §

3553(a), stated:

Turning to deterrence, . . . identity

fraud is a growing problem in this country,

and it is as true in Maine as anywhere. Maine

has a number of businesses, like credit card

companies, where employees have access to

sensitive financial and personal information,

and the sentence should therefore take into

account the need to deter such conduct.

Sent. Tr., 31.

Both parties invite our attention to United States v.
 United States v. Booker, 543 U.S. 220 (2005). 5

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Politano, 522 F.3d 69 (1st Cir. 2008). The defendant in Politano

was convicted of dealing firearms without a license. Id. at 71.

At the sentencing hearing, the district court noted:

I think any reader of the daily newspapers is

aware that the illegal trafficking of firearms

at the street level is a significant

contributing factor in what, without

exaggeration I think, can be called an

epidemic of handgun violence in communities

within this district. . . . And so I think

[this offense] has to be punished by a

sentence which reflects the seriousness,

promotes respect for it in compliance with the

law, and has an effect both specifically but

also a general deterrence effect as advice to

others who might commit it.

Id. at 72. The defendant in Politano challenged the district court

for relying on “generalized reports.” Id. at 73 (quotation marks

omitted). In upholding the sentence, we commented that, postBooker, “the district court has the discretion to take into 5

account . . . the particular community in which the offense arose.”

Id. at 74. Additionally, “[g]eneral deterrence is about preventing

criminal behavior by the population at large and, therefore,

incorporates some consideration of persons beyond the defendant.”

Id.

The district court did not err in considering identity

fraud as a growing crime in Maine and in the Nation. At the

sentencing hearing, the district court explained extensively its

decision and consideration of the factors for sentencing. Sent.
- 22 -

Tr., 28-34. The district court discussed identity fraud in the

context of deterrence, a factor specifically identified as relevant

by the governing statute. See 18 U.S.C. § 3553(a)(2)(B). The

district court explicitly stated that this was “a growing problem

in this country, and it is as true in Maine as anywhere.” Sent.

Tr., 31 (emphasis added). Similar to the sentencing court in

Politano, the district court considered the crime of identity theft

regionally; it then noted that the situation in Maine was part of

a growing national problem. In doing so, the court was following

Congress’s explicit mandate that it consider deterrence in

adjudicating a sentence.

Nor do we believe that the court erred in considering the

widespread growth of identity theft even though Ms. Landry already

was subject to a mandatory, consecutive, two-year sentence under

the Identity Theft and Penalty Enhancement Act, 18 U.S.C. § 1028A.

Congress, in imposing the mandatory sentence, separated the

sentence for predicate offenses--that is, the crimes related to the

aggravated theft--from the mandatory two-year sentence. See 18

U.S.C. § 1028A(b)(3) (“[I]n determining any term of imprisonment to

be imposed for the felony during which the means of identification

was transferred, possessed, or used, a court shall not in any way

reduce the term to be imposed for such crime so as to compensate

for, or otherwise take into account, any separate term of

imprisonment imposed . . . for a violation of this section[.]”).
We also note that the court made clear that it imposed the 6

maximum sentence in large part because it viewed Ms. Landry as

unrepentant.

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In this case, Ms. Landry was convicted of the predicate

offenses of wire fraud, fraud in connection with an access device

and social security fraud. These predicate offenses were in part

due to her use of false identifying information, and so,

independent of the charge for aggravated identity theft, the

district court could consider the need to deter identity theft in

determining the sentence for these predicate crimes. Accordingly, 6

the district court did not err when it considered, motivated by a

concern for general deterrence, the growth of identity fraud in

Maine and beyond.

Conclusion

The district court did not abuse its discretion in

admitting evidence of the traffic stop and of Ms. Landry’s drunkdriving conviction. We also conclude that no plain error occurred

in the Government’s closing arguments and that the district court’s

consideration of identity theft as a growing crime was not

improper. For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED