`
`IN THE UNITED STATES COURT OF APPEALS
`
`FOR THE ELEVENTH CIRCUIT
`________________________
`
`No. 04-15642
`Non-Argument Calendar
`________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
`October 6, 2005
`THOMAS K. KAHN
`CLERK
`
`D. C. Docket No. 04-60148-CR-JIC
`
`UNITED STATES OF AMERICA,
`
`
`
`
`
`
`JUAN CARLOS CASTILLO-HERNANDEZ,
`
`
`versus
`
`Plaintiff-Appellee,
`
`Defendant-Appellant.
`
`________________________
`
`Appeal from the United States District Court
`for the Southern District of Florida
`_________________________
`(October 6, 2005)
`
`Before ANDERSON, BLACK and PRYOR, Circuit Judges.
`
`PER CURIAM:
`
`Juan Carlos Castillo-Hernandez appeals his eight-month sentence for
`
`
`
`possession of a false social security number, in violation of 42 U.S.C.
`
`§ 408(a)(7)(B). Castillo-Hernandez argues that the district court erred when it
`
`applied a six-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(9)(C)(i) because
`
`the social security number that he attempted to use to obtain a port access clearance
`
`badge did not belong to an “actual individual” as that term is used by the
`
`guidelines, because the number was assigned to a person who died almost 30 years
`
`before Castillo-Hernandez committed the criminal offense. Castillo-Hernandez
`
`contends that there is no ambiguity in the word “actual,” which means existing and
`
`not merely potential or possible. Thus, he argues that an actual individual could
`
`not include a person who died almost 30 years ago. Castillo-Hernandez further
`
`argues that his reading of the term “actual individual” is supported by the reasons
`
`underlying the enhancement, which is designed to punish the defendant for harm,
`
`such as a damaged credit rating, damage to an individual’s reputation,
`
`inconvenience, and other difficulties, that a victim of identity theft may face.
`
`Castillo-Hernandez argues that these harms, and thus the reason for applying the
`
`sentencing enhancement, are not present where the means of identification used
`
`belonged to a deceased person.
`
`We review de novo whether the district court properly applied
`
`§ 2B1.1(b)(9)(C)(i) to Castillo-Hernandez’s underlying conduct. See United States
`
`2
`
`
`
`v. Spell, 44 F.3d 936, 938 (11th Cir. 1995). Section 2B1.1 states that if “the
`
`offense involved . . . the unauthorized transfer or use of any means of identification
`
`unlawfully to produce or obtain any other means of identification . . . increase by 2
`
`levels. If the resulting offense level is less than level 12, increase to level 12.”
`
`U.S.S.G. § 2B1.1(b)(9)(C)(i) (2003). “‘Means of identification’ has the meaning
`
`given that term in 18 U.S.C. § 1028(d)(7), except that such means of identification
`
`shall be an actual (i.e., not fictitious) individual, other than the defendant[.]”
`
`U.S.S.G. § 2B1.1, cmt. n.8 (emphasis added); see also United States v. Auguste,
`
`392 F.3d 1266, 167-68 (11th Cir. 2004) (affirming the enhancement where the
`
`defendant had used her own name on the credit cards that she obtained by using the
`
`living victim’s existing lines of credit and did not open new lines of credit).
`
`We have held that the language in the sentencing guidelines is to be given its
`
`plain and ordinary meaning. United States v. Pompey, 17 F.3d 351, 354 (11th Cir.
`
`1994). Thus, because “i.e.” is an abbreviation for “that is” or “that is to say,” the
`
`plain meaning of the language used by Congress was that “not fictitious” was the
`
`exclusive definition for “actual.” See Black’s Law Dictionary 511 (6th ed. 1991).
`
`See also United States v. Bush, 404 F.3d 263, 267 (4th Cir. 2005) (affirming the
`
`defendant’s conviction for using a false social security number to obtain a car loan,
`
`in violation of 42 U.S.C. § 408(a)(7)(B), where the social security number used
`
`3
`
`
`
`was assigned to a deceased person). Accordingly, in light of the plain meaning of
`
`the phrase “actual (i.e., not fictitious),” we affirm.
`
`In addition, we reject Castillo-Hernandez’s’s argument that the enhancement
`
`should not apply because he did not actually obtain a port access clearance badge.
`
`The policy of the guidelines is to provide a lesser punishment for an attempt,
`
`“unless the defendant completed all the acts the defendant believed necessary for
`
`successful completion of the substantive offense or the circumstances demonstrate
`
`that the defendant was about to complete all such acts but for apprehension or
`
`interruption by some similar event beyond the defendant's control.” U.S.S.G.
`
`2X1.1(b)(1) (emphasis added). In this case, Appellant was apprehended just before
`
`he completed all of the acts and so under the guidelines, his actions do not
`
`constitute an attempt.
`
`AFFIRMED.1
`
`1
`
` Castillo-Hernandez’s request for oral argument is denied.
`
`4
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
