U.s. OF The united states, Plaintiff - Appellee, v. JONATHAN GIANNONE, Defendant - Appellant.

No. 07-4844, No. 08-5020, No. 08-8386


360 Fed. Appx. 473;

December two, 2009, Argued

January 7, 2010, Made a decision

In sentencing Giannone, the district court applied an meant loss figure inside quantity of $ 132,327.17 to find out Giannone's offense level, applying U.S.S.G. 2B1.1(b)(one). The court also applied a two-level sentencing enhancement for the wire fraud counts pursuant to U.S.S.G. 2B1.1(b)(10)(B) since the offenses concerned the trafficking of unauthorized access gadgets.


Whether the district court gave an erroneous instruction to your jury to the which means of "knowingly" in 18 U.S.C. 1028A, the aggravated identity theft statute

Whether the district court erred by imposing a two-level sentencing enhancement beneath U.S.S.G. 2B1.1(b)(10)

When the government concedes that the failure to grant an instruction constant with Flores-Figueroa was plain error that impacted Giannone's substantial rights, it urges that we not get recognize of your error for the reason that allowing the conviction to stand is not going to "seriously have an effect on the fairness, integrity, or public reputation of judicial proceedings." It argues the proceedings overwhelmingly demonstrated that Giannone knew that the usually means of identification he offered to Johnson belonged to others. The situation right here is not really not like that in Cedelle exactly where we declined to observe plain error when mind-boggling evidence indicated that a defendant realized he was receiving depictions of actual minors engaged in sexually explicit conduct, while the jury was not instructed within the expected information component. Cedelle, 89 F.3d at 185-86. The evidence right here clearly demonstrates that Giannone not only trafficked within the usually means of identification of other people but understood that the usually means of identification belonged to actual individuals. Get more information about Legal Article

Problem 2:

No matter if the district court erred by imposing a two-level sentencing enhancement underneath U.S.S.G. 2B1.one(b)(10)

The court held that "The software notes towards the Guidelines governing aggravated identification theft state that this enhancement really should not apply to a defendant convicted of aggravated identity theft if the defendant can be convicted of the offense underlying the aggravated identity offense, in this particular case the wire fraud. See U.S.S.G. 2B1.6, App. Note 2. The cause is clear. The aggravated identity theft cost by itself imposes an additional, consecutive two-year sentence to the unauthorized use or transfer with the account amounts, and therefore the enhancement in 2B1.1(b)(10) would total to double counting. While Giannone did not object to the enhancement beneath, we consider notice with the plain error, vacate Giannone's sentence, and remand for resentencing."

This court affirm Giannone's convictions and vacate his sentence, remanding for resentencing with out the two-level enhancement beneath U.S.S.G. 2B1.1(b)(ten).