Eleventh Circuit Sends Back Identity Fraud Case That Used Wrong Sentencing Guideline – U.S. v. Hall
I was interested to read a recent case in which the federal appeals court covering Florida sent back a case for re-sentencing after the trial court may have used the wrong sentence enhancement. In United States v. Hall, Erica Hall was convicted of conspiracy to commit bank fraud and identity theft for her part in an identity theft ring. Hall worked at a obstetric and gynecological office, where she had access to patients’ names, Social Security numbers and birth dates. She provided numerous patients’ identities to her sister-in-law and another conspirator who agreed to pay her for the information, which they intended to use for identity theft. Hall disputed a sentence enhancement for the number of victims, and the Eleventh held that the wrong enhancement was used, and sent her case back for a new sentence.
Hall texted information on 65 to 141 people to her sister-in-law, Bianca Cook, or co-conspirator Rufus Bethea (who paid her, though considerably less than agreed). Using it, co-conspirators used at least 12 of the patients’ information to get fraudulent credit cards. After being caught, Hall pleaded guilty to conspiracy to commit bank fraud, conspiracy to commit identity theft and access device fraud, and health care privacy law violations. Her base offense level at sentencing was seven, but a probation officer recommended enhancements, including one for having more than 50 but fewer than 250 victims. Hall objected to this, arguing that she should be sentenced based on the 12 victims whose information led to false credit cards, not the 141 total whose information was stolen. The district court disagreed, concluding that stealing information for money constituted “actual use” under the law. This appeal followed.
The Eleventh Circuit noted that this issue is novel: does stealing personal information in itself involve actual use for fraud? The court ultimately decided it does not. Application Notes in the Guidelines Manual say that “victim” means anyone whose identification was used unlawfully. Thus, it’s clear that the 12 people whose information was used to get fraudulent credit cards are victims, but it’s not clear that the other people whose identities were stolen qualify as victims for this purpose. The plain meaning of “use” requires action and implementation, it said, which is more than just transferring the item. Thus, the co-conspirators would have had to act on the information Hall provided before it could be said to be “used.” Thus, it found that Hall should have received a lesser sentence enhancement for only 12 victims. Because it wasn’t clear whether Hall’s sentence would have been different, it remanded the case for re-sentencing.
It’s interesting that this case turned on nothing more exotic than the dictionary definition of “use.” Prosecutors can be expected to ask for the longest sentence they believe they can get, but of course, judges should balance those requests with the phrasing of the law. As the Eleventh Circuit notes, Hall’s sentence may not be different on remand, but the decision means that the court will have to apply a two-level enhancement instead of a four-level enhancement, making a shorter sentence likely. In other cases, sentence enhancements can substantially increase a sentence, making their proper application an important matter for criminal defense lawyers like me.
If you’re facing criminal charges in South Florida, you need the advice of an experienced defense attorney right away. You can call Seltzer Law, P.A., for a free consultation 24 hours a day and seven days a week. You can reach us through our website or toll-free at 1-888-THE-DEFENSE (1-888-843-3333).
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