The Supreme Court has agreed to define what proof the federal prosecutors must provide in order to obtain an aggravated sentence for criminal identity theft under a 2004 federal statute. The granted eighth circuit case, Flores-Figueroa v. U.S. (08-108) is one whose facts have split the lower district courts on the issue of whether there must be proof that illegal aliens ‘knowingly’ use phony Social Security cards and phoney alien registration cards whose numbers belong to actual individuals.
Flores pled guilty to two counts of misuse of immigration documents in violation of 18 U.S.C. § 1546(a), and one count of entry without inspection under 8 U.S.C. § 1325(a). He pled not guilty to two counts of aggravated identity theft. At his bench trial, Flores argued that he could not be convicted because the Government did not prove that he knew that the identification he possessed belonged to other people, which he claims is required to convict him under 18 U.S.C. § 1028A(a)(1). After rejecting this argument and finding him guilty of two counts of aggravated identity theft, the district court sentenced Flores to 51 months’ imprisonment for the misuse of immigration documents and entry without inspection offenses and a consecutive 24 months’ imprisonment for the aggravated identity theft offenses, resulting in a total sentence of 75 months’ imprisonment.
The 9th , 1st and D.C. circuits have supported the defendant’s belief that the sentences should not be enhanced 24 months if the defendants did not know the numbers on those phony cards had been assigned to someone else. The eighth circuit has joined with the 4th and 11th circuits in agreeing that these convictions are justified because it makes no difference to the victims whether the defendants knew the identity cards belonged to someone else and because it may be ‘impossible’ for the government to assume the burden of proof.
Once again the government’s argument is related more to being lazy and not conducting a due diligence to sustain their burden of proof. Just as plea agreements have preempted the need for prosecutors to diligently determine loss and resitution amounts in fraud cases, so is their willingness to ignore specifics and refuse to consider individual facts that would support such an aggravation as this.