Sentencing — identity theft

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U.S. Court of Appeals for the 7th Circuit

Criminal

Sentencing — identity theft

In sentencing a defendant for aggravated identity theft, it was erroneous double-counting to apply a two-level enhancement for fraudulent use of a foreign passport.

“In short, the point of Application Note 2 is to avoid counting the same offense conduct twice for purposes of sentence enhancement when a conviction for aggravated identity theft is in the mix. The mandatory two-year consecutive sentence under § 1028A already accounts for conduct involving misuse of a means of identification, so the Sentencing Commission instructs judges not to apply Chapter Two enhancements to the predicate offense for the same offense conduct. Because a passport is a means of identification, Application Note 2 to § 2B1.6 precludes application of the two-level enhancement for Zheng’s fraudulent use of a foreign passport.”

Vacated and Remanded.

12-2739 U.S. v. Zheng

Appeal from the United States District Court for the Northern District of Illinois, Dow, J., Sykes, J.