By: WISCONSIN LAW JOURNAL STAFF//August 15, 2014//
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.
Appeal from the United States District Court for the Northern District of Illinois, Dow, J., Sykes, J.