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New sentencing hearing ordered for evidence to support identity theft enhancement

In U.S. v Wright the defendant Wright pled guilty to conspiracy to commit wire fraud and aggravated identity theft by filing fraudulent tax returns in the name of identity theft victims in order to obtain the refunds in violation of 18 USC §1349 and possessing 15 or more counterfeit and unauthorized access devised with the intent to defrauds in violation of 18 USC §1029. Other counts involved possession of names and social security number of five different people. The factual proffer of the plea agreement revealed that the IRS discovered fraudulent returns coming from the same Interne Protocol (IP) address what turned out to belong to a Florida apartment that was rented by Wright. The IRS agents executed a search warrant at the apartment where they found person identifying information PII for thousands of people in a number of places in the apartment. After seizing and analyzing the documents, the IRS determined there were 12,124 identities, 331 debit of credit cards containing account information and 2,090 identities found on the computers and flash drive.

The district court sentenced Wright to 84 months. Because the intended loss on all the tax returns totaled $868,472 plus an additional $6,905,500 representing $500 for each of the 13,811 remaining compromised identities found in the apartment. The issue on appeal was whether the loss amount calculated for determining Wright’s sentencing should the $500 amount for each of the remaining 13,811 compromised identities. The appeals court refined the issued by asking whether the 13,311 compromised identities qualified as “access devises” under any part of the definition for access devices as given in the sentencing guidelines. While the court of appeals found the 331 debit or credit cards and numerous social security number are access devises, the question became whether the other thousands of compromised identities which were described only as “personal identifying information.”

The court recognized that at personal identification number qualified as an access device, but neither the PSI or the factual proffer defined or described the term personal identifying information or otherwise specified what types of information that term included. Therefore, the court agreed with Wright that the record did no show what types of personal information (PII) were in the thousands of other PII found in the defendant’s apartment. The court required at least some evidence on which to base a reasonable estimate of how many remaining PII fell within the definition of access device in order to trigger the $500 multiplier and to exceed the threshold for an enhanced sentence. The lack of description or definition for PII in the factual proffer or PSI means there was insufficient evidence to trigger that multiplier and make a reasonable estimate.

The court of appeals remanded the case to the Miami federal district court to make fact findings about the loss amount and allow the government and Wright an opportunity to submit additional evidence as to what types of personal information were in the PII found in the defendant’s apartment. Federal criminal defense attorneys commonly raise the loss amount issue in identity theft cases at sentencing.

The court also upheld the sentencing court’s denial of acceptance of responsibility because the defendant was convicted of using marijuana during her pretrial release.

Finally, the court of appeals found that the defendant’s multiple traffic citations for driving with a suspended license were not separated by intervening arrests because the court found that a citation was not an arrest as required for the enhancement under the sentencing guidelines.