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United States v. Nolte

United States Court of Appeals, First Circuit

December 20, 2016

UNITED STATES OF AMERICA, Appellee,
v.
STEVEN NOLTE, a/k/a George France, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Denise Jefferson Casper, U.S. District Judge]

          Elizabeth L. Prevett, Federal Public Defender Office, on brief for appellant.

          Robert E. Richardson, Assistant United States Attorney, and Carmen M. Ortiz, United States Attorney, on brief for appellee.

          Before Howard, Chief Judge, Torruella and Lynch, Circuit Judges.

          TORRUELLA, Circuit Judge.

         A jury convicted Steven Nolte of making false statements in a passport application, in violation of 18 U.S.C. § 1542 (Count I), aggravated identity theft, in violation of 18 U.S.C. § 1028A (Count II), and use of a falsely-obtained Social Security account number to obtain benefits, in violation of 42 U.S.C. § 408(a)(7)(A) (Count III). At sentencing, the district court enhanced by four levels the Sentencing Guidelines range for Nolte's conviction for Count I pursuant to U.S.S.G. § 2L2.2(b)(3)(A) and ultimately sentenced him to twelve months for Counts I and III, [1] and to the mandatory consecutive twenty-four months imprisonment term for his conviction for Count II, resulting in an aggregated sentence of thirty-six months of imprisonment. Nolte challenges the application of the four-level enhancement as to Count I, as well as his conviction for aggravated identity theft. Because we find that the four-level enhancement was correctly applied, and Nolte's argument challenging his conviction for aggravated identity theft is foreclosed by binding circuit precedent, we affirm.

         I. Background

         A. Factual Background

         Nolte was born in 1963 in Arizona, and lived there through approximately 1997. He worked in real estate in Arizona during the early 1990s, where he befriended Steve France. Steve France had, in addition to other siblings, a brother named George who passed away in 1966, at the age of four days.

         After his time working in real estate, Nolte set up a business for computer consulting named Etlon Communications. Nolte, through Etlon Communications, worked as an information technology consultant to a company named Fulton Homes in the mid-1990s. In 1997, approximately $571, 000 was drawn from Fulton Homes' bank account through five checks addressed to Etlon Communications. These checks featured Fulton Homes' president's forged signature. Most of these funds were transferred to a bank located in Costa Rica, to the receipt of Nolte.

         On May 13, 1997, Nolte obtained an Arizona driver's license using the name of George France and a birth date in 1966. Nolte maintained this identity for nearly two decades. On May 15, 1997, Nolte used that license to apply for a United States Passport, under the name George France. In that application, he stated that he was born in 1966 in Phoenix, Arizona, and he provided a Social Security number ending in 7622. This Social Security number actually belonged to a different person, who was from Arizona. The United States issued the passport on May 16, 1997. The issuance of this passport was expedited, due to travel plans to San José, Costa Rica.

         Shortly afterwards, on May 30, 1997, Nolte -- under the identity of George France -- applied for a replacement passport at the United States embassy in Costa Rica, stating that his passport had been stolen. In the application, he provided a Social Security number that differed by one number -- but that also ended in 7622 -- which actually belonged to a different person, who was from Hawaii. The application also listed 1966 as his year of birth, and was obtained by using the George France Arizona license and by referencing the other, recently-obtained George France passport.

         On June 9, 1999, Nolte -- as George France -- submitted an application for a Social Security number, indicating that he had never received one. He listed his birth year as 1966, and identified himself using the May 30, 1997 passport and a birth certificate he had acquired for George France, which had been issued on May 13, 1997. He was subsequently issued a Social Security number for George France, which ended in 8253. On April 19, 2007, Nolte filed for a renewal of the May 30, 1997 George France passport. In the renewal application, he provided the Social Security number for George France ending in 8253. The renewed passport issued on April 30, 2007.

         On May 11, 2012, Nolte went to the office of the Boston Passport Agency seeking a replacement passport. He claimed that he had accidentally put his April 30, 2007 passport through the washer and dryer, which had damaged it. He completed an application for a replacement in which he again listed his name as George France and provided personal information for George France, including the Social Security number ending in 8253. He provided the Arizona driver's license, the birth certificate, and the damaged 2007 passport as proof of his identity.

         The application was approved by the first passport specialist, who dealt with Nolte in person, but required further vetting before the passport was actually issued. During that process, the application was flagged and sent to a fraud prevention manager because the Social Security number used -- the one ending in 8253, issued in 1999 -- had been assigned when the applicant was thirty-three years old, which is an unusually late age for receiving a Social Security number. The fraud prevention manager called Nolte (as George France) and inquired why his Social Security number had been issued so late in his life; he responded that his mother had given her sons the same Social Security number, that he had mistakenly used his brother's Social Security number earlier in life, and that he had applied for a new number after learning of the issue.

         Shortly thereafter, special agents in the Department of State began an investigation into the application. During that investigation, on May 22, 2012, Nolte returned to the Boston Passport Agency to inquire about the status of the replacement passport. While there, two agents advised him of his rights and conducted an interview. As he had listed in the passport application, he told the agents that his name was George France; he was born in Phoenix, Arizona in 1966; both of his parents had passed away; his Social Security number was the one ending in 8253; and other personal details relating to the France family. He provided the agents with the same explanation about his use of varying Social Security numbers that he had given to the fraud prevention specialist -- that he and his brothers had been issued the same Social Security numbers, and that he had used that number until he learned of the mistake after his brother Steve died in 1997. Much of this information was incorrect, however; for example, as testified at trial, the actual George France had two sisters, and his mother, Anna France, was indeed alive.

         B. Procedural Background

         On August 20, 2013, a federal grand jury indicted Nolte on Counts I, II, and III. He was arrested in Las Vegas, Nevada on September 3, 2013, and the case went to trial on March 2, 2015. The evidence presented at trial included fingerprint matches, DNA evidence, and the testimony of two witnesses who knew Nolte from Arizona to show that the defendant was in fact Steven Nolte. On March 6, 2015, the jury returned a guilty verdict on all three counts.

         The Presentence Investigation Report ("PSR") calculated Nolte's total offense level as 12; this included a four-level enhancement because of the fraudulent use of a United States passport pursuant to U.S.S.G. § 2L2.2(b)(3). Nolte objected to this enhancement, claiming that he did not "use" a passport since the 2007 passport was damaged, and that Application Note 2 to U.S.S.G. § 2B1.6 precluded applying an enhancement to Count I for using a means of identification because he was also charged with a count of aggravated identity theft related to that ...


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