United States v. 2020-01-06 | 18-50159 | USA V. DANIEL USHER | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANIEL JERMAINE USHER, AKA Baby,
AKA Baby Toast Face, AKA Babytoast,
AKA Toast Face, AKA Toast-Face, AKA
Toastface, AKA Daniel Jamaine Usher, AKA
Daniel Jermain Usher, AKA Daniel Jermane
Usher, AKA Daniel Jermiane Usher,

Defendant-Appellant.

No. 18-50159

D.C. No.
CR 17-82-CJC

MEMORANDUM
*

Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding

Argued and Submitted December 13, 2019
Pasadena, California

Before: N.R. SMITH and WATFORD, Circuit Judges, and KORMAN,
**
District
Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
FILED

JAN 6 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Daniel Usher appeals his conviction and sentence for three counts of
aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We vacate three
unconstitutional conditions of supervised release and remand to correct the same,
and otherwise affirm.
1. Usher contends that the evidence presented at trial was legally
insufficient to establish, beyond a reasonable doubt, that he used Bank of America
(“BOA”) customers’ personal identification numbers, known as “PINs,” to access
their accounts on BOA ATMs and withdraw cash. We disagree. “Evidence is
sufficient to support a conviction unless, viewing the evidence in the light most
favorable to sustaining the verdict, no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” United States v.
Overton, 573 F.3d 679, 685 (9th Cir. 2009). At trial, BOA representatives testified
that BOA’s ATMs required customers’ PINs to be entered before each cash
withdrawal. Bank records showed the exact time of each cash withdrawal from the
customers’ accounts, and time-stamped surveillance footage showed precisely when
Usher and the customers stood at the ATMs. Together, this evidence sufficiently
supported the conclusion, beyond a reasonable doubt, that Usher must have used the
customers’ PINs to withdraw cash from their accounts.
2. Usher also argues that, even if the evidence proved that he used the

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PINs, he is still not liable for aggravated identity theft because the PINs are not
covered by the definition of “means of identification” set forth in 18 U.S.C. §
1028(d)(7). This argument is without merit. The PINs are unambiguously
“number[s] that may be used, alone or in conjunction with any other information, to
identify a specific individual.” Id.
3. Turning to his sentencing, Usher argues that the district court erred by
interpreting 18 U.S.C. § 1028A(b)(2) to require Usher’s three concurrent sentences
for aggravated identify theft to run consecutively to all of his sentences for state-law
offenses. Applying de novo review, see United States v. Blixt, 548 F.3d 882, 886
(9th Cir. 2008), we hold that the district court was correct. Section 1028A explicitly
states that, “[n]otwithstanding any other provision of law,” sentences imposed under
this provision may not run “concurrently with any other term of imprisonment
imposed on the person under any other provision of law.” 18 U.S.C. 1028A(b). We
see no reason to exclude state sentences from the ambit of this provision. See United
States v. Gonzales, 520 U.S. 1, 4–5 (1997) (interpreting the phrase “any other term
of imprisonment” in a similar statute to include “those imposed by state courts”).
4. Finally, following United States v. Ped, 943 F.3d 427, 432–34 (9th Cir.
2019), we vacate conditions five, six, and fourteen of Usher’s supervised release,
which are unconstitutional under United States v. Evans, 883 F.3d 1154, 1162–64
(9th Cir. 2018), and remand to the district court with instructions to impose any

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alternative conditions it deems appropriate.
AFFIRMED in part, VACATED in part, and REMANDED for the
limited purpose of modifying the conditions of supervised release.