Eleventh Circuit Court of Appeals - Published Opinions

Thursday, January 17, 2013

Hall: Transfer of identity is not "use"

In U.S. v. Hall, No. 11-14698 (Jan. 16, 2013), the Court held that the district court erroneously found that the offense involved more than 50 victims and therefore erroneously applied the four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B).

Hall, an office assistant in a doctor’s office, unlawfully sold to accomplices identifying information of approximately 65 to 141 patients, for the purpose of misusing their identity. However, only 12 of these patients’ personal information was actually used to obtain fraudulent credit cards.

The Court noted that the additional individuals were not “victims” for purposes of Application Note 1 of the Guideline, because they did not sustain “any part of the actual loss.” The Court found that the individuals did not qualify as victims under Application Note 4E because their identification was not “used.” The Court found that while the identities were “transferred” they were not “used.” “Transfer means something distinctly different than use.” The Court stated:

The purpose of the conspiracy in this case was to obtain cash advances and purchase items by using fraudulent credit cards. Hall’s sale of the unauthorized identifying information to her co-conspirators did not implement the purpose of the conspiracy. Hall’s mere transfer of the personal identifying information, without more action, did not employ that information for the purpose for which the conspiracy was intended . . . the personal information was not used, as that term is ordinarily understood, until Hall’s co-conspirators secured the fraudulent credit cards. At that point, the 12 individuals whose personal information was compromised became victims.

Because it was unclear whether the district court’s misapplication of the Guidelines might have affected the sentence, the Court vacated the sentence and remanded the case for resentencing.