America OF The us, Plaintiff - Appellee, v. JONATHAN GIANNONE, Defendant - Appellant.

No. 07-4844, No. 08-5020, No. 08-8386

America COURT OF APPEALS With the FOURTH CIRCUIT

360 Fed. Appx. 473;

December two, 2009, Argued

January seven, 2010, Made a decision

In sentencing Giannone, the district court utilized an meant loss figure inside sum of $ 132,327.17 to ascertain Giannone's offense stage, applying U.S.S.G. 2B1.one(b)(one). The court also utilized a two-level sentencing enhancement on the wire fraud counts pursuant to U.S.S.G. 2B1.one(b)(10)(B) because the offenses involved the trafficking of unauthorized accessibility gadgets.

Concerns:

No matter if the district court gave an erroneous instruction for the jury on the meaning of "knowingly" in 18 U.S.C. 1028A, the aggravated identification theft statute

No matter if the district court erred by imposing a two-level sentencing enhancement underneath U.S.S.G. 2B1.one(b)(10)

Although the govt concedes that the failure to provide an instruction constant with Flores-Figueroa was plain error that affected Giannone's substantial rights, it urges that we not get observe with the error due to the fact enabling the conviction to stand will not "seriously have an effect on the fairness, integrity, or public track record of judicial proceedings." It argues that the proceedings overwhelmingly demonstrated that Giannone understood the means of identification he offered to Johnson belonged to other people. The predicament here is just not as opposed to that in Cedelle the place we declined to discover plain error when overwhelming proof indicated that a defendant understood he was obtaining depictions of real minors engaged in sexually explicit conduct, even though the jury wasn't instructed around the necessary understanding element. Cedelle, 89 F.3d at 185-86. The proof right here obviously demonstrates that Giannone not just trafficked inside the implies of identification of some others but understood that the signifies of identification belonged to true individuals. More info on Legal Information is available by following this link

Matter two:

Whether the district court erred by imposing a two-level sentencing enhancement beneath U.S.S.G. 2B1.one(b)(10)

The court held that "The software notes to the Suggestions governing aggravated identity theft state that this enhancement must not utilize to a defendant convicted of aggravated identity theft if the defendant can also be convicted in the offense underlying the aggravated identity offense, during this scenario the wire fraud. See U.S.S.G. 2B1.six, App. Notice 2. The good reason is apparent. The aggravated identity theft charge by itself imposes an additional, consecutive two-year sentence for that unauthorized use or transfer of your account quantities, and for that reason the enhancement in 2B1.one(b)(10) would amount to double counting. Even if Giannone did not object towards the enhancement down below, we take notice in the plain error, vacate Giannone's sentence, and remand for resentencing." If you'd like to know more about Criminal Defense Lawyer follow this link

This court affirm Giannone's convictions and vacate his sentence, remanding for resentencing not having the two-level enhancement under U.S.S.G. 2B1.one(b)(ten).