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United States v. Osuna-Alvarez

United States Court of Appeals, Ninth Circuit

June 10, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MIGUEL OSUNA-ALVAREZ, Defendant-Appellant

Argued and Submitted, Pasadena, California May 6, 2015.

Appeal from the United States District Court for the Southern District of California. D.C. No. 3:12-cr-04477-LAB-1. Larry A. Burns, District Judge, Presiding.

SUMMARY[*]

Criminal Law

The panel affirmed a conviction for aggravated identity theft, in violation of 18 U.S.C. § 1028A, in a case in which the defendant contended that because he had permission to use his twin brother's passport, he did not use the passport " without lawful authority," as required by the statute.

The panel rejected that contention and held that § 1028A does not require theft as an element of the offense. The panel held that regardless of whether the means of identification was stolen or obtained with the knowledge and consent of its owner, the illegal use of the means of identification alone violates § 1028.

Richard Dale Rome (argued), Law Offices of Richard D. Rome, Van Nuys, California, for Defendant-Appellant.

Laura E. Duffy, United States Attorney; Bruce R. Castetter, Chief, Appellate Section, Criminal Division; Randy K. Jones (argued), Peter Ko, and Lara Stingley, Assistant United States Attorneys, San Diego, California, for Plaintiff-Appellee.

Before: John T. Noonan, Kim McLane Wardlaw, and Mary H. Murguia, Circuit Judges.

OPINION

Page 1184

PER CURIAM:

In this opinion, we resolve Miguel Osuna-Alvarez's challenge to his conviction for aggravated identity theft, in violation of 18 U.S.C. § 1028A. Osuna-Alvarez (" Osuna" ) contends that because he had permission to use his twin brother's passport, he therefore did not use the passport " without lawful authority," as required by the statute. See 18 U.S.C. § 1028A. As set forth below, we reject this argument. The remaining issues in this appeal are resolved in a contemporaneously filed memorandum disposition.

I.

On October 13, 2012, Osuna was arrested while attempting to enter the United States from Mexico at the Otay Mesa, California Port of Entry. Osuna was the driver and sole occupant of his vehicle. At the border crossing, a canine alerted to the vehicle's dashboard. When questioned, Osuna claimed he was headed for San Ysidro and denied having anything to declare. He ...


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