Another Federal Sentencing Provision –Identity Theft

This blog will focus on U.S.S.G. Section 2B1.1(b)(2)(C) as a specific sentencing provision of the United States Sentencing Guidelines. In this age serious identity theft crimes (the Target Store), this one provision can substantially increase a federal sentencing guideline recommendation.

A recent case discussing this provision is U.S. v Ballard,, 551 Fed. Appx. 33 (3rd Cir. May 2014). In this matter Ballard is accused of federal identity theft crimes after a legal search of her personal storage unit revealed numerous Apple iPods, cellular phones, and Apple laptop computer, all possessing numerous other people’s privacy data. Ballard was federally charged with, and convicted of, possessing other persons’ ID cards, Social Security documents, drivers licenses health insurance cards, school IDs and library cards. Ballard was found guilty of utilizing all of the information to obtain credit cards and other bank related documents in other people’s name with her picture and address. Identify theft and mail fraud charges were also included.

At sentencing, an FBI officer testified that Ballard possessed 1312 individuals’ information for which Ballard purchased items on behalf of at least 600 of those people. The total monetary loss was $111,000.

The government moved for an 8 level enhancement under section 2B 1.11.1(b)(1(E) for the monetary loss and a 6 level increase under 2B1.1(b)(2)(C) because Ballard’s crime involved 250 or more victims. Accordingly, the guideline sentence on one count of mail fraud required a 37-46 month sentence consecutive to the mandatory minimum 24 month sentence for identity theft.

The sentencing issue was what evidence was permissible to establish proof of both financial loss and the identity of a victim to establish over 250 victims. The court found that merely an FBI officer’s testimony that a defendant possessed the names and corroborating identifiers (dates of birth, social security numbers, government issued cards) not of the defendant is sufficient evidence to trigger the sentencing enhancement. Simply possessing another persons’ identifying financial data, whether or not that person suffered financial loss, will be the basis for aggravating a sentence under section 2B1.1(b)(2)(C) and 18 U.S.C Section 1028(d)(7).

This is a huge problem for any person accused of identity theft. Regardless of whether an individual’s credit card was used, social security number was used, or date of birth copied, mere possession of another person’s personal information and data will be sufficient for activation of this sentencing provision.

Please call me to discuss your case.

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