USA v. Tracy Rhine

Filing

UNPUBLISHED OPINION FILED. [09-11234 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 10/12/2010 for Appellant Tracy Jo Rhine [09-11234]

USA v. Tracy Rhine

Doc. 0

Case: 09-11234

Document: 00511238235

Page: 1

Date Filed: 09/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-11234 S u m m a r y Calendar September 20, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. T R A C Y JO RHINE, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:09-CR-133-1

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* T r a c y Jo Rhine appeals following her guilty-plea conviction for two counts o f theft of stolen mail matter in violation of 18 U.S.C. § 1708. Rhine was s e n te n c e d to 51 months of imprisonment and two years of supervised release on e a c h count to run concurrently. Rhine argues that it was reversible plain error t o impose a two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(10)(C)(i). F o llo w in g United States v. Booker, 543 U.S. 220 (2005), sentences are r e v ie w e d for procedural and substantive reasonableness. Gall v. United States,
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 09-11234

Document: 00511238235 Page: 2 No. 09-11234

Date Filed: 09/20/2010

5 5 2 U.S. 38, 51 (2007).

Improperly calculating the guidelines range is a

s ig n ific a n t procedural error. Id. B e c a u s e Rhine did not object to the alleged error in the district court, r e v ie w is for plain error. See United States v. Villegas, 404 F.3d 355, 358 (5th C ir . 2005). To show plain error, Rhine must demonstrate that the district court e r r e d , that the error is clear or obvious, and that the error affects her substantial r ig h t s . See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If Rhine m a k e s such a showing, we have the discretion to correct the error but only if it " `s e r io u s ly affect[s] the fairness, integrity, or public reputation of judicial p r o c e e d in g s .'" Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). T h e Guidelines provide for an offense-level enhancement if the offense in v o lv e d "the unauthorized transfer or use of any means of identification u n la w fu lly to produce or obtain any other means of identification." § 2B1.1(b)(10)(C)(i) (2009). "Means of identification" is defined as inter alia "any n a m e or number that may be used, alone or in conjunction with any other in fo r m a t io n , to identify a specific individual." 18 U.S.C. § 1028(d)(7); § 2B1.1, c o m m e n t. (n.9(A)) (2009). T h e undisputed evidence was that Rhine obtained a Texas driver's license in one of the victim's names, which matched the name on checks that she stole fr o m the mail. Rhine then used the license and checks to buy tools. Though t h e r e was no direct evidence that Rhine used the information on the checks to o b ta in the driver's license, the district court could have reasonably inferred that s h e did so. See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). A c c o r d in g ly , there was no error in the application of the enhancement b e c a u s e Rhine unlawfully used one means of identification, the information on t h e victim's checks, to obtain another means of identification, the false driver's lic e n s e . See § 2B1.1(b)(10)(C)(i), comment. (n.9(C)(ii)); United States v. Rhymer, 2 9 9 F. App'x 378, 379-80 (5th Cir. 2008), cert. denied, 129 S. Ct. 1638 (2009). T h e judgment of the district court is AFFIRMED. 2