Sammour: Affirming Identity Theft Convictions

In U.S. v. Sammour, No. 13-13962 (March 16, 2016), the Court affirmed the convictions and 115-month sentence of a defendant charged with stealing persons’ identities in order to recover fraudulent tax refunds from the Internal Revenue Service. Sammour pled guilty to the theft of public money charges, but went to trial on the aggravated identity theft charges. At sentencing, the district court denied an acceptance of responsibility sentence reduction, and departed upward from a Criminal History Category II to Category V. The Court rejected a challenge to the sufficiency of the evidence, finding evidence that showed that Sammour knew he was stealing the identity of real persons. On plain error review, the Court rejected the argument that the district court constructively amended the indictment, when it instructed the jury that a means of identification was a “date of birth” when the indictment had only charged “name and social security number” as the means of identification. The Court found no precedent in the Eleventh Circuit, or in sister circuits, squarely holding that an amendment of the “means” of committing a crime was a constructive amendment. Hence any error was not “plain.” The Court found no abuse of discretion in the district court’s decision to keep on the jury a juror who sent out a note stating: “Will we be offered the jury protection program? This reeks of Alquaida and honestly have concerns for our safety.” Turning to sentencing, the Court found no error in the district court’s decision to deny an acceptance of responsibility sentence reduction. Though Sammour pled guilty to some counts, he went to trial on others. Further, the district court found that his belated apology was entitled to little weight. The Court also affirmed the upward departure from Category II to V. A district court is authorized to assign criminal history points to unscored prior convictions and extrapolate the criminal history category that would have applied.