On Appeal from the United States District Court for the District of New Jersey (D.C. No. 03-cr-00690) District Judge: Hon. William G. Bassler.
The opinion of the court was delivered by: Roth, Circuit Judge
Argued on January 18, 2006
BEFORE: ROTH, FUENTES and BECKER, Circuit Judges
The issue in this criminal sentencing appeal is whether the creation of forged driver's licenses and employer IDs for the purpose of making fraudulent bank withdrawals qualifies for the two-level sentencing enhancement of U.S.S.G. § 2B1.1(b)(9)(C)(i) (2003) for "the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification."*fn1 For the reasons below we hold that it does and will affirm the District Court's judgment of sentence.
I. Factual and Procedural Background
Appellant Alrahman Muhammad Newsome conspired to make fraudulent withdrawals from customer accounts at Fleet Bank, an FDIC-insured bank. One of Newsome's co-conspirators, Annur Hamilton, had obtained personal contact and account information of Fleet customers from an unidentified Fleet employee. Using this information, the conspirators produced fake driver's licenses, employee identification cards, and completed pre-printed withdrawal slips,*fn2 which were then used by two of the co-conspirators, Evelyn Rivera and Elaine Daniels,*fn3 to make withdrawals from Fleet branches. Although it is unclear who actually manufactured the fake identification cards, Newsome and Hamilton contributed to the effort by taking digital photographs of Rivera and Daniels. These photographs were then placed on forged identification cards, which contained the name and personal information of the fraud victims, but displayed the photograph of Rivera or Daniels. Newsome supplied the fake cards to Rivera and Daniels and served as their driver on the fraudulent forays to various Fleet branches. Before Newsome and his co-conspirators were apprehended, they managed to withdraw $135,340.00 that law enforcement officials were unable to recover. Newsome pled guilty to one count of conspiracy to defraud the United States (in its role as insurer of deposits at Fleet) in violation of 18 U.S.C. § 371. The District Court sentenced Newsome to a 27-month term of imprisonment and ordered restitution to Fleet.
Newsome's plea bargain included a provision that the United States Sentencing Guidelines would apply. Newsome's sentence was made within the range of 24-30 months suggested by the Sentencing Guidelines for an Offense Level of seventeen and a Category I Criminal History. Fifteen of the seventeen Offense Levels found by the District Court are undisputed.*fn4
The issue in the case stems from the District Court's determination that a two-level upward Offense Level adjustment was warranted under U.S.S.G. § 2B1.1(b)(9)(C)(i), for "the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification." Without the upward adjustment under U.S.S.G. § 2B1.1(b)(9)(C)(i), Newsome's Offense Level would be fifteen so the suggested sentencing range would have been 18-24 months.*fn5 Newsome objected to the upward adjustment as a matter of law and has appealed the District Court's ruling on that issue.*fn6
The District Court exercised subject matter jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over Newsome's appeal under 28 U.S.C. § 1291. We undertake a plenary review of the District Court's interpretation of the Sentencing Guidelines. United States v. Moorer, 383 F.3d 164, 167 (3d Cir. 2004).
The District Court held that, as a matter of law, Newsome had illegally used one means of identification to produce another. We agree.
U.S.S.G. § 2B1.1(b)(9)(C)(i) calls for a two-level enhancement for "the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification." The phrase "means of ...