United states of america OF The united states, Plaintiff - Appellee, v. JONATHAN GIANNONE, Defendant - Appellant.
No. 07-4844, No. 08-5020, No. 08-8386
United states of america COURT OF APPEALS With the FOURTH CIRCUIT
360 Fed. Appx. 473;
December two, 2009, Argued
January seven, 2010, Made the decision
In sentencing Giannone, the district court utilized an meant reduction figure while in the quantity of $ 132,327.17 to find out Giannone's offense level, applying U.S.S.G. 2B1.1(b)(one). The court
also utilized a two-level sentencing enhancement to the wire fraud counts pursuant to U.S.S.G. 2B1.1(b)(10)(B) as the offenses involved the trafficking of unauthorized accessibility units.
Whether the district court gave an erroneous instruction for the jury within the that means of "knowingly" in eighteen U.S.C. 1028A, the aggravated identity theft statute
Regardless of whether the district court erred by imposing a two-level sentencing enhancement beneath U.S.S.G. 2B1.1(b)(10)
Though the govt concedes the failure to grant an instruction regular with Flores-Figueroa was plain error that impacted Giannone's significant rights, it urges that we not take recognize from the
error for the reason that allowing the conviction to stand will never "seriously influence the fairness, integrity, or public reputation of judicial proceedings." It argues the proceedings
overwhelmingly demonstrated that Giannone knew the indicates of identification he marketed to Johnson belonged to other people. The condition right here is not contrary to that in Cedelle where we
declined to observe plain error when mind-boggling evidence indicated that a defendant understood he was getting depictions of actual minors engaged in sexually explicit conduct, even if the jury
wasn't instructed within the demanded understanding factor. Cedelle, 89 F.3d at 185-86. The proof right here evidently demonstrates that Giannone not just trafficked in the indicates of
identification of others but understood which the signifies of identification belonged to real individuals. Click here to read more about Legal
Whether the district court erred by imposing a two-level sentencing enhancement below U.S.S.G. 2B1.1(b)(ten)
The court held that "The software notes to your Guidelines governing aggravated identity theft state that this enhancement ought to not use to some defendant convicted of aggravated identity theft if
the defendant can be convicted on the offense underlying the aggravated identification offense, in this particular circumstance the wire fraud. See U.S.S.G. 2B1.6, App. Be aware 2. The cause is
obvious. The aggravated identification theft charge itself imposes an extra, consecutive two-year sentence for the unauthorized use or transfer from the account amounts, and thus the enhancement in
2B1.1(b)(10) would volume to double counting. Even though Giannone did not object into the enhancement below, we take become aware of of your plain error, vacate Giannone's sentence, and remand for
This court affirm Giannone's convictions and vacate his sentence, remanding for resentencing with out the two-level enhancement beneath U.S.S.G. 2B1.1(b)(10).