United States v. Menelik Zeleke , 491 F. App'x 377 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5132
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MENELIK ZELEKE, a/k/a Minilik Zeleke, a/k/a Elijah Ayele,
a/k/a Minilik Nix, a/k/a Sheth M. Zeleke, a/k/a Melvin Paul
Haywood, a/k/a Jimmy Spellman, a/k/a Melvin Paul Nix,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:11-cr-00248-TSE-1)
Submitted: July 31, 2012 Decided: August 8, 2012
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John S. Davis, V, WILLIAMS MULLEN, Richmond, Virginia;
Garrick A. Sevilla, WILLIAMS MULLEN, Raleigh, North Carolina,
for Appellant. Neil H. MacBride, United States Attorney,
Brian D. Harrison, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Menelik Zeleke was convicted by a jury of using his
infant son’s social security number to obtain an apartment lease
(Count One), using his three-year-old son’s social security
number to conduct a banking transaction (Count Two), and using a
social security number that had been issued to him under an
alias to obtain a second, fraudulent passport (Count Three).
Zeleke was sentenced to a term of twenty-four months’
imprisonment. He appeals his sentence, contending that the
district court erred in imposing a 6-level enhancement for
identity breeding under U.S. Sentencing Guidelines Manual
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§ 2B1.1(b)(11)(C)(i) (2011). We affirm.
In the presentence report, with respect to Count One,
the probation officer recommended a 6-level increase under USSG
§ 2B1.1(b)(11)(C)(i), which applies when the offense involved
“the unauthorized transfer or use of any means of identification
unlawfully to produce or obtain any other means of
identification[.]” 2 Zeleke objected to the enhancement,
1
Citations are to the 2011 Guidelines Manual, which was in
effect at Zeleke’s sentencing on November 18, 2011.
2
The background commentary to § 2B1.1 states that
“[s]ubsection (b)(11)(C) . . . focuses principally on an
aggravated form of identity theft known as ‘affirmative identity
theft’ or ‘breeding’, in which a defendant uses another
individual’s name, social security number, or some other form of
identification (the ‘means of identification’) to ‘breed’ (i.e.,
(Continued)
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asserting that the rental account he opened with his son’s
social security number should not be considered a means of
identification. Zeleke argued in his sentencing memorandum that
his conduct did not qualify for the enhancement because he did
not use the rental application as a means of identification or
to create any other means of identification, but only to obtain
the immediate benefit of renting an apartment. The government
responded that the enhancement was correctly applied, relying on
United States v. Allen, 491 F.3d 178 (4th Cir. 2007).
In Allen, we stated that the enhancement “applies
where a defendant, without authorization, uses an individual’s
name and social security number or address to obtain a bank loan
or credit card.” Id. at 193. We further noted, citing with
approval United States v. Samet, 200 F. App'x 15, 23 (2d Cir.
2006), that “[t]he subsection has also been held to apply where
a defendant, without authorization, uses an individual’s
information to obtain a lease or open a bank account.” 491 F.3d
at 193. Thus, we held that the enhancement applied in a case
where the defendant knowingly processed a lease ostensibly for
produce or obtain) new or additional forms of identification.”
Application Note 1 to § 2B1.1 explains that the term “means of
identification” is defined in 18 U.S.C. § 1028(d)(7), except
that the means of identification for purposes of the Guidelines
provision must be that of a real, not fictional, person.
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computer equipment using an individual’s name and social
security number without authorization. Id. at 194.
In Samet, two defendants “used names, dates of birth,
and social security numbers of other individuals to obtain
leases.” 200 F. App’x at 23. Addressing whether a lease
constitutes a “means of identification” as defined in the
Guidelines, Samet held that it does, for the following reasons:
The Application Notes . . . define “means of
identification” by reference to [18 U.S.C.
§ 1028(d)(7)], which in turn defines the term as “any
name or number that may be used, alone or in
conjunction with any other information, to identify a
specific individual.” Id. (emphasis added). The Note
then describes the use of names and social security
numbers to obtain a bank loan or a credit card as
conduct to which the Guideline should apply,
explaining that the bank loan account number or credit
card number is the “means of identification.” Both
the statute and the Note focus on the generation of a
unique identifying number different than any number
used to obtain it, not on whether a document would be
proffered as a form of identification, as [defendants]
contend. Like the account number of a bank loan, the
account number of the leases thus constitute “means of
identification,” and because they were obtained
unlawfully, [defendants’] base offense levels were
appropriately enhanced.
200 F. App’x at 23.
At Zeleke’s sentencing hearing, the district court
overruled his objection to the enhancement, finding that “the
[Samet] and Allen courts both conclude that . . . the focus [of]
the enhancement is on the generation of a unique identifying
number different from any number used to obtain it, not on
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whether a document would be proffered as a form of
identification, which was the thrust of [Zeleke’s] argument.”
The district court adopted the Guidelines calculation in the
presentence report and imposed a sentence of twenty-four months
imprisonment.
Zeleke argues that the district court misinterpreted
the Guideline when it concluded that a means of identification
need not be used to prove a person’s identity, and that the
broader interpretation in Samet, cited approvingly in Allen,
would lead to absurd results. However, Zeleke provides no
authority which is on point and contrary to either Allen or
Samet. Moreover, the background commentary to § 2B1.1 states
that “18 U.S.C. § 1028(d) broadly defines ‘means of
identification[.]’” Because Allen and Samet provided a reasoned
basis for the district court’s application of the enhancement in
§ 2B1.1(b)(11)(C)(i) in Zeleke’s case, we conclude that the
district court did not err in making the enhancement. We need
not address the alternative grounds for affirmance put forward
by the government and contested by Zeleke.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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