PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JASONN GONZALES, Defendant - Appellant. No. 16-2022

________________ _________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:14-CR-00922-JB-1)

________________ _________________ Brian A. Pori, Federal Public Defender, Albuquerque, New Mexico, for DefendantAppellant. James R.W. Braun, Assistant United States Attorney, (Damon P. Martinez, United States Attorney, with him on the brief ), Albuquerque, New Mexico, for Plaintiff-Appellee.

________________ _________________ Before HARTZ , MURPHY , and HOLMES , Circuit Judges.

________________ _________________ HARTZ , Circuit Judge.

________________ _________________ Defendant Jasonn Gonzales pl eaded guilty in the United States District Court for the District of New Mexico to four counts of mail fraud, see 18 U.S.C. § 1341, one count of conspiracy to commit mail fraud, see 18 U.S.C. §§ 1341 and 1349, and one count of aggravated id entity theft, see 18 U.S.C. § 1028A, arising out of his fraudulent scheme to FILED United States Court of Appeals Tenth Circuit 

### December 29, 2016
Elisabeth A. Shumaker Clerk of Court2 obtain unemployment benefits from three state ag encies. On appeal his sole argument is that the district court erred in calculati ng his sentencing-guidelines offense level by including as victims those pe rsons whose identities had been stolen even though they suffered no financial loss. Exercising jurisd iction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND From January 2009 through May 2012, Defendant and Gerald Archuleta tricked unemployment agencies in Texas, Colorado, and New Mexico into sending them prepaid debit cards for unemployment benefits for unqualified people. They registered fake companies with the agencies and paid unemployment taxes for them, listing real people (with correct social se curity numbers and othe r personal information 1 ) as employees of the companies. They then submitted unemployment-benefit cl aims on behalf of those people. The unemployment agencies mailed th e debit cards to post office boxes rented by the two men, who used the cards for their personal benefit. Law-enforcement officers searched De fendant’s home on May 22, 2012, and found substantial evidence of the scheme. For reasons not apparent in the record on appeal, Defendant was not indicted until almost two years later, on March 26, 2014. He pleaded guilty on August 18, 2014, to all charges w ithout the benefit of a plea agreement. When calculating Defendant’s offense le vel for the mail-fraud and conspiracy charges, the probation office’s presentence re port (PSR) started with a base level of 7.

1 Apparently, Defendant obtain ed at least some of the information from people he assisted with tax returns and from personnel files of employees at businesses where he worked as an accountant.3 See USSG § 2B1.1(a)(1) (2014) ( guideline for theft offenses). 2 It raised the level because of three special offense characteristics, a dding 16 levels for an intended loss over $1 million, see id. § 2B1.1(b)(1)(I), two levels for Defend ant’s use of sophisticated means, see id. § 2B1.1(b)(10)(C), and four levels beca use the number of victims exceeded 50, see id. § 2B1.1(b)(2)(B). The PSR then added f our levels because Defendant was an organizer or leader, see id. § 3B1.1(a), and subtracted three levels for acceptance of responsibility, resulting in an offense level of 30. With Defendant’s criminal-history category of II, his guidelines sentencing rang e was 108 to 135 months’ imprisonment. For Defendant’s aggravated-identity-theft conviction, the PSR added the mandatory consecutive two-year prison term. See 18 U.S.C. § 1028A; see also USSG § 2B1.6 (guideline for aggravat ed identity theft). Defendant objected to the number-of-victims enhancement on the ground that the only financial losses from the scheme were su ffered by the three state agencies. The PSR counted 107 victims, however, because app lication note 4(E)(ii) to USSG § 2B1.1 defines victim to include “any individual whose means of identification was used unlawfully or without au thority.” Defendant argued that the application not e could not be used in calculating his sentence because he was also being sentenced for aggravated identity theft under 18 U.S.C. § 1028A, and for someone so se ntenced application note 2 to USSG § 2B1.6 prohibits a pplying any enhancement “for the transfer, possession, or use of a means of identification.” At senten cing on December 4, 20 14, the district court

2 Throughout the op inion we refer to the November 1, 2014 version of the guidelines, which was the version used for Mr. Gonzales ’s sentencing. The parties do not dispute that this was the correct version to apply.4 overruled the objection, adopted the PSR’s gu idelines calculation, and varied downward for an ultimate sentence of 111 months’ imprisonment.
II. DISCUSSION Several guidelines provisions are central to our discussion. Section 2B1.1(b)(2) states: “If the offense . . . involved 50 or mo re victims, increase [the offense level] by 4 levels.” USSG § 2B1.1(b)(2). Applica tion note 4(E) to that section defines victim where, as here, the case “involve[s] means of identific ation.” The note incorporates the general definition in application note 1 3 but also includes within the definition of victim “(ii) any individual whose means of identification wa s used unlawfully or without authority.” 4 These are the provisions used by the district court. Defendant’s arguments rest on an appli cation note to the guidelines provision concerning his conviction for aggravated id entity theft under 18 U.S.C. § 1028A. The guideline states: “If the defendant was conv icted of violating 18 U.S.C. § 1028A, the guideline sentence is the term of imprisonm ent required by statute [two years].” Id. § 2B1.6; see 18 U.S.C. § 1028A. Application note 2 to that section provides: If a sentence under this guideline is imposed in conjunction with a sentence for any underlying offense, do not apply any specific offense characteristic for the transfer, possession, or use of a means of identification when determining the sentence for the underl ying offense. A sentence under this

3 Application note 1 to § 2B1.1 defines victim as “(A) any person wh o sustained any part of the actual loss determined under subsection (b )(1) [which refers to monetary harm]; or (B) any individual who sustained bodily injury as a result of the offense.” Id. § 2B1.1 cmt. n.1. 4 Application note 4(E) states in full: “C ases Involving Means of Identification.—For purposes of subsection (b)(2), in a case invol ving means of identification ‘victim’ means (i) any victim as defined in Application Note 1; or (ii) any individual whose means of identification was used unlawfully or without authority.”5 guideline accounts for this factor for th e underlying offense of conviction, including any such enhancement that would apply base d on conduct for which the defendant is accountable un der § 1B1.3 (Relevant Conduct). USSG § 2B1.6, cmt. n.2. (emphasis added) Defendant contends that this provision forbids use of application note 4(E) to enhance his sentence. He argues that there were only three victims of his scheme—the three state unemployment ag encies—because they are the only ones who suffered monetary loss. The other “victims” counted by the PSR were counted only because they were “individual[s] whose means of identif ication was used unlawfully or without authority.” USSG § 2B1.1 cmt. n.4(E). But, the argument continues, counting them would be a prohibited applicati on of a “special offense char acteristic for the transfer, possession, or use of means of identification. ” Therefore, he says, the four-level 50- victim enhancement was improper. Defendant focuses on the gui delines’ use of the word any in application note 2, arguing that the word requires a broad reading, “proscrib[ing] application of all [special offense characteristics] of whatev er kind ‘for the use of a mean s of identification.’” Aplt. Op. Br. at 19. Noting that the express purpose of note 2 is to prevent double-punishing a defendant who improperly uses another person’s identifying information, he suggests that his conduct was double-punished because he received both th e two-year consecutive term under § 1028A and the victim en hancement for the same conduct. He contends that the application note is unambiguous, but that even if it were unclear, the rule of lenity directs us to interpret it in his— the defendant’s—favor.6 This argument, however, appears to be fo reclosed by circuit precedent. In United
States v. Manatau , 647 F.3d 1048, 1048–49 (10th Ci r. 2011), the defendant pleaded guilty to bank fraud and aggr avated identity theft arisi ng from his stealing and using social security numbers, credit cards, and chec ks. In calculating the defendant’s offense level, the court counted the number of vic tims based on application note 4(C) to § 2B1.1 (2009), which at that time defined victim “[i]n a case in which und elivered United States mail was taken.” The definitio n included “any person who wa s the intended recipient, or addressee, of the undelivered United States mail.” USSG § 2B1.1 cmt. n.4(C) (2009). Almost none of these “victims” su stained actual monetary harm. Mr. Manatau contended on appeal that it was error to apply this enhancement, raising the same argument advanced by Defendant here—that the enhancement was forbidden by § 2B1.6 application note 2 be cause of his convic tion under 18 U.S.C. § 1028A. We agreed with him that “the guidelines tell courts not to apply an enhancement based on a ‘specific offense char acteristic for the transfer, possession, or use of a means of identification,’ where . . . a defendant has been co nvicted of aggravated identity theft and bank fraud.” Manatau , 647 F.3d at 1057 n.4 (quoting USSG § 2B1.6 app. n.2). But we held that “t he number of victims is not such an offense characteristic.” Id. Defendant argues that Manatau is not controlling because “[n]owhere in the . . . opinion or in the briefs in that cas e is there any mention of § 2B1.1’s application note 4(E)(ii).” Aplt. Op. Br. at 21–22. He adds that “[i]t is not even apparent the district court in that case applied that note since th e defendant’s offenses occurred before the note7 went into effect on November 1, 2009.” Id. at 22. Therefore, he says, this court has not yet addressed the implications of note 4(E)(ii). Defendant is correct that note 4(E)(ii) was not in effect when Mr. Manatau was sentenced. But our broad language in Manatau did not restrict itsel f to any particular definition of victim in the number-of-victims enha ncement. We said without qualification that “the number of victims” is not an offense characteristic encompassed by application note 2 to § 2B1.6. Even if Manatau is not strictly controlling, we agree with it and apply it here. Defendant conflates the nature of the crime and the extent of the crime. Application note 2 states that a guidelines enhancement based on the nature of the crime—“the transfer, possession, or use of a means of identificati on”—cannot be applied to a defendant who is also being sentenced under 18 U.S.C. § 1028A. But it does not restrict an enhancement based on the extent of such a crime. In that circumstance there is no double counting. In particular, using the definition of victim applied in this case does not lead to any double counting. The aggravated-identity-theft statute, 18 U.S.C. § 1028A, imposes a mandatory two-year consecutive sentence if a person “during and in relation to any felony violation enumerated in [the statut e], knowingly transfers, possesses, or uses without lawful authority, a means of identific ation of another person.” The two-year mandatory sentence does not depend on the number of pe rsons whose identities have been stolen. (Of course, a defendant may be convicted on multip le counts charging violations of § 1028A, but the sentence s on those counts may run concurrently. See id. § 1028A(b)(4); USSG § 2B1.6, cmt. n.1(B).) Thus, the sentence imposed for aggravated8 identity theft does not necessa rily reflect the number of victims. For example, Defendant’s sentence on the charge was going to be two years’ imprisonment no matter how many identities he stole. Yet it is re asonable to treat criminal conduct more seriously as the number of stolen identities in creases, and application note 4(E)(ii) to USSG § 2B1.1 accomplishes that. Certainly it was advantageous to Defendant that his multiple identity thefts were ta ken into account under the app lication note rather than his being charged with more than 100 coun ts of aggravated identity theft. A proper occasion for using application note 2 to § 2B1.6 would be when the sentencing court would otherw ise apply USSG § 2B1.1(b)(1 1)(C), which increases the offense level if an offense in volved “the unauthorized transfer or use of any means of identification unlawfully to produce or obt ain any other means of identification.” See United States v. Anderson , 532 Fed. App’x 373, 378 (4 th Cir. 2013) (offering this provision as an example of an enhancem ent prohibited by § 2B1.6, app. n.2); United States v. Lyles , 506 F. App’x 440, 447 (6 th Cir. 2012) (same). We are not aware of any other guideline that would come under ap plication note 2; but the Sentencing Commission may well have decided to speak in general language that could cover future guidelines amendments. Finally, we note that our fellow circuits ag ree with our reading of the guidelines. Every circuit to have ruled on this issue has allowed the enhancement. See United States v. Ford , 784 F.3d 1386, 1397–98 (11th Cir. 2015); Anderson , 532 F. App’x 373; Lyles , 506 F. App’x 440; United States v. Yummi , 408 F. App’x 537, 5 41 (3d Cir. 2010). We join this consensus.9 III. CONCLUSION
We AFFIRM the district court’s judgment and sentence.