14

‐ 1348

‐ cv(L)

United States v. Naranjo

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY

ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE

F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ). A

PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED

BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 6 th day of April, two thousand sixteen.

PRESENT: CHESTER J. STRAUB,

DENNY CHIN,

SUSAN L. CARNEY,

Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

UNITED STATES OF AMERICA,

Appellee

,

v. 14

‐ 1348

‐ cr(L),

14

‐ 1406

‐ cr(CON),

LUPERIO NARANJO, SR., JOVER NARANJO, 14

‐ 2503

‐ cr(CON)

Defendants

‐ Appellants

.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

FOR APPELLEE: ANDREW BEATY, Margaret Garnett, Assistant

United States Attorneys, for Preet Bharara,

United States Attorney for the Southern

District of New York, New York, New York.‐ 2

‐ FOR DEFENDANT

‐ APPELLANT JOHN BURKE, Law Office of John Burke,

LUPERIO NARANJO, SR.: Brooklyn, New York.

FOR DEFENDANT

‐ APPELLANT LLOYD EPSTEIN, Epstein & Weil, LLC, New

JOVER NARANJO: York, New York.

Appeal from the United States District Court for the Southern District of

New York (Rakoff, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

.

Following a jury trial in the district court, defendants

‐ appellants Luperio

Naranjo, Sr., and Jover Naranjo were convicted of conspiracy to commit mail fraud,

mail fraud, conspiracy to commit witness tampering, witness tampering, and

aggravated identity theft, in violation of 18 U.S.C. §§ 1349, 1341, 1512(k), 1512(b), and

1028A(a)(1), respectively. Jover Naranjo was also convicted of making false statements

to the government, in violation of 18 U.S.C. § 1001. Luperio Naranjo, Sr., appeals a

judgment entered April 23, 2014, sentencing him principally to 48 months ʹ

imprisonment. Jover Naranjo appeals a judgment sentencing him principally to 72

months ʹ imprisonment, entered the same day. We assume the parties ʹ familiarity with

the underlying facts, procedural history, and issues on appeal.

Defendants principally argue that they did not commit aggravated

identity theft under 18 U.S.C. § 1028A and their convictions should be reversed because

the government failed to prove that 1) they used another person ʹ s identity by‐ 3

‐ pretending to be that person or received benefits otherwise intended for that person,

and 2) they used another person ʹ s identity without that individual ʹ s consent to the

unlawful use. ʺ [W]hile cast in terms of a challenge to the sufficiency of the evidence, ʺ

this argument ʺ is in essence a claim that the District Court erred by failing to instruct

the jury ʺ that the government was required to prove additional elements. United States

v. Whab

, 355 F.3d 155, 158 (2d Cir. 2004).

Titled ʺ Aggravated identity theft, ʺ 18 U.S.C. § 1028A provides as follows:

Whoever, during and in relation to any felony violation

enumerated in subsection (c), knowingly transfers, possesses, or

uses, without lawful authority, a means of identification of

another person shall, in addition to the punishment provided for

such felony, be sentenced to a term of imprisonment of 2 years.

Subsection (c) includes mail fraud as a predicate offense. 18 U.S.C. § 1028A(c)(5).

Defendants ran a demolition company that systematically underpaid its

workers

‐‐ primarily undocumented immigrants

‐‐ in violation of federal law. Their

scheme to avoid detection involved filing false payroll documents that used the names

of friends and family members instead of the workers ʹ real names. The district court

instructed the jury that, to find defendants guilty under § 1028A, the government had to

prove that they ʺ used, transferred or possessed the means of identification in

connection ʺ with the substantive offense, and that defendants acted ʺ without lawful

authority, ʺ that is, used the identification ʺ without the consent or knowledge of the

person ʺ or used ʺ the identification in furtherance of a crime even with the person ʹ s‐ 4

‐ consent. ʺ SJA 227. Defendants did not object to this instruction, nor did they argue

that their conduct was not covered by the statute or that it was ambiguous.

The government contends, and we agree, that defendants failed to

preserve this error for review by not objecting to the jury instructions or otherwise

challenging the applicability of the statute. Therefore, we review for plain error. See

United States v. Nouri

, 711 F.3d 129, 138 (2d Cir. 2013). ʺ For plain error, we must find (1)

error, (2) that is plain, and (3) that affects substantial rights; if these three conditions are

met, we have discretion to notice the forfeited error only if (4) the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings. ʺ United States v.

Dorvee

, 616 F.3d 174, 180 n.2 (2d Cir. 2010).

For an error to be ʺ plain ʺ it must be ʺ clear or obvious, rather than subject

to reasonable dispute. ʺ Puckett v. United States

, 556 U.S. 129, 135 (2009). An error is not

clear or obvious ʺ in the absence of binding precedent, where there is a genuine dispute

among the other circuits. ʺ Whab

, 355 F.3d at 158. 1

In this circuit, there is no binding precedent governing the issue of how

§ 1028A should be interpreted, or whether the government is required to prove that the

individuals did not consent to the unlawful use of their identities. The majority of other

circuits that have considered the questions raised by defendants have adopted the

1 Contrary to defendants ʹ contention, United States v. Draper

, 553 F.3d 174 (2d Cir.

2009), does not suggest otherwise. In Draper

, we recognized plain error where the jury

instructions ʺ failed to set out what the statute and this Circuit ʹ s case law clearly require the

government to also prove. ʺ Id. at 180

‐ 81 (emphasis added).‐ 5

‐ government ʹ s interpretation. 2 Only the Sixth and Seventh Circuits have held

‐‐ on

different grounds

‐‐ that § 1028A is ambiguous when applied to similar conduct. United

States v. Miller

, 734 F.3d 530, 542 (6th Cir. 2013); United States v. Spears

, 729 F.3d 753,

757

‐ 58 (7th Cir. 2013) ( en banc ).

While in the rare case we may find plain error ʺ where this circuit has not

previously spoken on an issue and there is no discernible consensus among other

circuits, ʺ United States v. Brown

, 352 F.3d 654, 665 n.10 (2d Cir. 2003), such circumstances

are not present here. Because the majority of other circuits have concluded that § 1028A

unambiguously includes the conduct at issue here, we cannot say that that any error

was ʺ so egregious and obvious as to make the trial judge and prosecutor derelict in

permitting it, despite the defendant ʹ s failure to object. ʺ Brown

, 352 F.3d at 664

‐ 665

(quoting United States v. Gore

, 154 F.3d 34, 42

‐ 43 (2d Cir. 1998)). The district court ʹ s

decision to instruct the jury in a way that conforms with most circuits ʹ interpretation of

the statute was not plainly erroneous.

Therefore, without reaching the merits of whether the district court erred

in its instructions, we affirm because the error ‐‐ if there was one ‐‐ was not ʺ clear or

2 See United States v. Osuna

‐ Alvarez

, 788 F.3d 1183, 1185 (9th Cir. 2015), cert. denied

136 S. Ct. 283 (Oct. 5, 2015); United States v. Reynolds

, 710 F.3d 434, 436 (D.C. Cir. 2013); United

States v. Lumbard

, 706 F.3d 716, 725 (6th Cir. 2013); United States v. Ozuna

‐ Cabrera

, 663 F.3d 496,

498

‐ 99 (1st Cir. 2011); United States v. Retana

, 641 F.3d 272, 274 (8th Cir. 2011); United States v.

Abdelshafi

, 592 F.3d 602, 605

‐ 07 (4th Cir. 2010); United States v. Hurtado

, 508 F.3d 603, 607 (11th

Cir. 2007) abrogated on other grounds by Flores

‐ Figueroa v. United States

, 556 U.S. 646 (2009); see also

United States v. Carrion

‐ Brito

, 362 F. App ʹ x 267, 273 (3d Cir. 2010).‐ 6

‐ obvious, rather than subject to reasonable dispute. ʺ Puckett

, 556 U.S. at 135; see also

Whab

, 355 F.3d at 158; Brown

, 352 F.3d at 664

‐ 65.

We have considered all of defendants ʹ additional arguments and find

them to be without merit. For the reasons stated herein, the judgment of the district

court is AFFIRMED

.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk