USA v. Dorothy Dawkins Raines

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 11, 2010
JOHN LEY
ACTING CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-11640
Non-Argument Calendar
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D. C. Docket No. 08-00039-CR-4-RH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOROTHY DAWKINS RAINES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(January 11, 2010)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Dorothy Dawkins Raines appeals her conviction for aggravated identity

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theft, in violation of 18 U.S.C. § 1028A. Raines was also convicted of theft of
government property, namely, a $15,587 Social Security Administration (“SSA”)
benefit payment made out to Peggy Loughrin, in violation of 18 U.S.C. § 641 and
making, uttering, and possessing a forged security, in violation of 18 U.S.C.
§ 513(a). However, she does not challenge those convictions on appeal.
On appeal, Raines argues that she did not violate 18 U.S.C. § 1028A because
she had lawful authority to use Peggy Loughrin’s identification to cash her social
security check and because Congress did not intend that her conduct constitute
aggravated identity theft. Specifically, she contends that her conduct did not
constitute aggravated identity theft because she believed that Loughrin gave her
lawful authority to sign and cash her social security check.
Normally, we “review challenges to the sufficiency of the evidence de novo,
viewing the evidence in the light most favorable to the government.” United States
v. Futrell, 209 F.3d 1286, 1288 (11th Cir. 2000). However, because Raines failed
to move for a judgment of acquittal at the close of evidence, we review for plain
error to avoid a manifest miscarriage of justice, which exists “if the evidence on a
key element of the offense is so tenuous that a conviction would be shocking.”
United States v. Edwards, 526 F.3d 747, 756 (11th Cir. 2008) (quotation omitted).
“We review issues of statutory interpretation de novo.” United States v.
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Makarky, 499 F.3d 1246, 1248 (11th Cir. 2007). “The first rule in statutory
construction is to determine whether the language at issue has a plain and
unambiguous meaning with regard to the particular dispute. If the statute’s
meaning is plain and unambiguous, there is no need for further inquiry.” United
States v. Fisher, 289 F.3d 1329, 1337-38 (11th Cir. 2002) (internal quotation and
citation omitted).
The aggravated identity theft provision requires an enhanced sentence of two
years of imprisonment if a person “during and in relation to any felony violation
enumerated in subsection (c), knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another person . . . .” 18 U.S.C.
§ 1028A(a)(1). Subsection (c) includes any offense that is a felony violation of 18
U.S.C. § 641. 18 U.S.C. § 1028A(c). “[T]o support a conviction under
§ 1028A(a)(1), the government must prove that the defendant: (1) knowingly
transferred, possessed, or used; (2) the means of identification of another person;
(3) without lawful authority; (4) during and in relation to a felony enumerated in
§ 1028A(c).” United States v. Hurtado, 508 F.3d 603, 606-07 (11th Cir. 2007)
(footnote omitted), abrogated on other grounds by Flores-Figueroa v. United
States, __ U.S. __, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009).
In Hurtado, we held that the language of § 1028A was not ambiguous and
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we “need not consider the title of § 1028A (“Aggravated Identity Theft”) because
the phrase “without lawful authority” in § 1028A(a)(1) is plain and unambiguous.”
508 F.3d at 608 n.6. Further, “our reading of the plain language to prohibit the
possession or use of another person’s identification that was obtained by methods
other than stealing does not lead to absurd results.” Id.
Finally, the record reveals that the jury could have found beyond a
reasonable doubt that Raines used Peggy Loughrin’s social security number
without lawful authority to cash Loughrin’s $15,587 social security check,
believing Loughrin’s version of events.
AFFIRMED.
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