Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:07-cr-62-Theresa L. Springmann, Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge.
Before EASTERBROOK, Chief Judge, and KANNE and ROVNER, Circuit Judges.
Anna LaFaive assumed the identity of her deceased sister, opened checking accounts in her name using counterfeited checks, and withdrew nearly $65,000 before being apprehended. A jury convicted her of two counts of bank fraud and two counts of aggravated identity theft. On appeal, LaFaive challenges her conviction under 18 U.S.C. § 1028A for aggravated identity theft and takes issue with the procedure used by the district court in calculating her sentence. We affirm both her conviction and sentence.
Although largely irrelevant to the legal issues LaFaive raises in this appeal, some background information may be useful. Phyllis Jean Click, LaFaive's older sister, was born in 1946. She died of cancer in 1990 at the age of 45. LaFaive was born in 1961. In May 2007, LaFaive used a counterfeit check in the amount of $48,039.16 to open a new checking account in Click's name at Star Financial Bank in Fort Wayne, Indiana. The check was drawn on an account at JP Morgan Chase Bank. LaFaive presented the bank with a social security number verification document and an Indiana identification card, both identifying her (LaFaive) as Phyllis J. Click. Using the same documents, LaFaive opened another checking account in Click's name at Fifth Third Bank in Fort Wayne, Indiana, this time with a counterfeit check in the amount of $68,920.78. The next month, LaFaive made purchases totaling nearly $5,000 at a GameStop and Best Buy from these new checking accounts. She also withdrew $60,000 in cash from a Fifth Third Bank in Ohio. Authorities eventually found LaFaive living in Harper Woods, Michigan, where she was arrested in late June 2007.
LaFaive was indicted on two counts of bank fraud in violation of 18 U.S.C. § 1344, two counts of aggravated identity theft in violation of 18 U.S.C. § 1028A, and a forfeiture allegation under 18 U.S.C. § 982. At trial, LaFaive's defense was that her sister was still alive, had deposited the counterfeit checks herself, and framed LaFaive for the crimes. The jury found this theory unbelievable and convicted her of all four counts and awarded forfeiture in the amount of $64,863.04. The district court sentenced LaFaive to an above-guidelines sentence of 70 months' imprisonment-46 months on the bank fraud counts and the mandatory 24 consecutive months on the aggravated identify theft counts. After the district court denied LaFaive's motion for judgment of acquittal under Federal Rule of Criminal Procedure 29, LaFaive filed this appeal.
LaFaive argues that she cannot be convicted of aggravated identity theft under § 1028A because that statute does not criminalize the use of a deceased person's identity. She also argues that the district court improperly considered the factors in 18 U.S.C. § 3553(a) to enhance her sentence before adding the mandatory 24-month consecutive sentence under § 1028A(a)(1) to the total guideline calculation. We consider each argument in turn.
A. Scope of 18 U.S.C. § 1028A
LaFaive argues that § 1028A criminalizes only the use of a living person's identity, and therefore her use of her deceased sister's identity falls outside the scope of the statute. Because she did not raise this argument before the district court, we will reverse her conviction only for plain error, which requires a clear or obvious error by the district court that affects the defendant's substantial rights "and seriously impugn[s] the fairness, integrity, or public reputation of judicial proceedings." United States v. Anderson, 604 F.3d 997, 1002 (7th Cir. 2010). If LaFaive's interpretation of § 1028A is correct, she would almost certainly be entitled to the relief she requests. See United States v. Groves, 470 F.3d 311, 327-28 (7th Cir. 2006) (reversing a conviction "[b]ecause allowing a conviction to stand without proof of an essential element of the crime meets the standard for plain error...").
1. Plain Text of § 1028A(a)(1)
Although this is a question of first impression for our court, we are not starting from scratch-every federal court to consider this issue has concluded that § 1028A criminalizes the use of both a living or deceased person's identification. While we are not bound by these decisions, we find their ...