USA v. Martinez

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUG 16, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-13787
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-20140-MGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Florida
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(August 16, 2011)
Before TJOFLAT, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
David Martinez appeals his sentence of 48 months of imprisonment for
conspiring to use unauthorized access devices, 18 U.S.C. § 1029(b)(2), possessing
device-making equipment, id. § 1029(a)(4), and aggravated identity theft, id.

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§ 1028A(a)(1). Martinez argues that the district court could not enhance by two
points his base offense level for possessing device-making equipment, see United
States Sentencing Guidelines Manual § 2B1.1(b)(10)(A)(i) (2009), because that
misconduct was accounted for in his sentence for aggravated identity theft. We
affirm.
The district court did not err by adding two points to Martinez’s base
offense level. A defendant convicted of aggravated identity theft cannot be
sentenced for that offense and a “specific offense characteristic for the transfer,
possession, or use of a means of identification,” id. § 2B1.6 cmt. n.2, which
includes any “telecommunication identifying information or access device (as
defined in section 1029(e)[(1) and (11)]),” 18 U.S.C. § 1028(d)(7). Martinez
possessed a piece of “device-making equipment” called a “scanning receiver,”
U.S.S.G. § 2B1.1(b)(10)(A)(i) & cmt. n.9(A). The aggravated identity theft statute
punishes the “transfer[], possess[ion], or use[], without lawful authority, [of] a
means of identification of another.” 18 U.S.C. § 1028A(a)(1). Because neither a
piece of “device-making equipment” nor a “scanning receiver” constitute a means
of identification, the district court could enhance Martinez’s sentence for
possessing a credit card skimming device.
We AFFIRM Martinez’s sentence.
2

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