United States v. Barrogo

Requiring the authentication feature to be physically “on . . . [a] means of identification” would be inconsistent with § 1028(d)(7). The statute includes both physical and non-physical “means of identification,” therefore “used...on” in §1028(d)(1) includes non- physical authentication features that are naturally associated with a physical or non-physical “means of identification.” Here, that is a PIN “on” an account or associated card.

Defendant purchased Supplemental Nutrition Assistance Program (SNAP) benefits from individuals to purchase food items for her restaurant, totaling $15,625 in charges. Defendant was indicted by a grand jury on two counts of unauthorized use of SNAP benefits and one count of conspiracy to use, transfer, acquire, alter SNAP benefits without authorization. Defendant pled guilty to the conspiracy and stipulated to a two-level authentication feature enhancement under U.S.S.G. § 2B1.1(b)(11)(A)(ii). Defendant was sentenced to ten months in prison and was ordered to pay $18,752.30. Defendant appealed whether the district court properly applied the two-level authentication feature and the restitution order. The Court held the district court properly imposed a two-level sentencing enhancement under U.S.S.G. § 2B1.1(b)(11)(A)(ii) for the defendant’s misuse of an “authentication feature” and upheld the restitution order. Requiring the authentication feature to be physically “on . . . [a] means of identification” would be inconsistent with § 1028(d)(7). The statute includes both physical and non-physical “means of identification,” therefore “used...on” in §1028(d)(1) includes non- physical authentication features that are naturally associated with a physical or non-physical “means of identification.” The Court reasoned that the “authentication feature” was the PIN used by DPHSS “on” the EBT card or account number to determine that EBT card was counterfeit, altered, or otherwise falsified.  Additionally, the court finds that Defendant did not demonstrate error in the district court’s determination of restitution fines. AFFIRMED.