Princewill Arinze Duru v. United States

Title 18, United State Code, Section 1028A imposes a mandatory two-year consecutive sentence on anyone who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person” “during and in relation to” an enumerated felony. As Dubin v. United States, 599 U.S. 110, 114 (2023), confirmed, for a conviction under that statute to stand, the government must prove that the transfer, possession, or use of the means of identification lies “at the crux of what makes the underlying offense criminal.” Despite this, a divided Ninth Circuit panel affirmed Mr. Duru’s Section 1028A conviction based his use of his own identity to open two bank accounts. And although those accounts were linked to a single attempted deposit from one individual, the panel affirmed the determination that the offense involved 10 or more victims under U.S.S.G. § 2B1.1(b)(2)(A)(I) based on individuals who suffered no actual loss. The questions presented are:

1. Whether 18 U.S.C. § 1028A, which applies to the use “without lawful authority, [of] a means of identification of another person” permits conviction based on a defendant’s consensual use and sharing of his own information.

2. Whether using a means of identification to open a bank account satisfies the requirement that that use be at the “crux of what makes the underlying offense criminal.”