USA v. Ezequiel Lopez-Hernandez

Filing

REVISED UNPUBLISHED OPINION FILED. [7648563-2] [13-40727]

Case: 13-40727

Document: 00512653285

Page: 1

Date Filed: 06/05/2014

REVISED June 5, 2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED

No. 13-40727

June 3, 2014
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff – Appellee

v.

EZEQUIEL LOPEZ-HERNANDEZ, also known as Juan Carlos Mendoza,
Defendant – Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:13-CR-21-1
Before KING, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
Ezequiel Lopez-Hernandez is a Mexican citizen who entered the United
States without authorization in 2009. In September 2011, using the alias
“Juan Carlos Mendoza,” he was arrested by the Beeville, Texas police
department for drunk driving. In June 2012, he was placed on probation for
this offense. At that time, he submitted a document to his probation officer

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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containing a false social security number that in fact belonged to a different
person. In November 2012, Lopez-Hernandez was arrested once again by the
Beeville police department, this time for assault causing bodily injury and
evading arrest. During the booking process, he orally provided the same false
social security number that he had previously used, and the booking officer
wrote the number on his fingerprint card.
Based on these incidents, Lopez-Hernandez was indicted on two counts
of using a false social security number, in violation of 42 U.S.C. § 408(a)(7)(B).
His motion to dismiss the indictment on various grounds was denied by the
district court. Following a bench trial, he was convicted on both counts and
sentenced to time served (approximately seven months) plus two years
supervised release.
On appeal, Lopez-Hernandez argues that § 408(a)(7)(B), properly
construed, does not reach his conduct. The statute, which is contained in the
subchapter of title 42 dealing with social security old-age, survivor, and
disability insurance benefits, punishes anyone who, with the intent to deceive,
falsely represents a number to be his social security number
for the purpose of causing an increase in any payment authorized
under this subchapter (or any other program financed in whole or
in part from Federal funds), or for the purpose of causing a
payment under this subchapter (or any such other program) to be
made when no payment is authorized thereunder, or for the
purpose of obtaining (for himself or any other person) any payment
or any other benefit to which he (or such other person) is not
entitled, or for the purpose of obtaining anything of value from any
person, or for any other purpose.
42 U.S.C. § 408(a)(7)(B) (emphasis added). Citing the rule of ejusdem generis,
Lopez-Hernandez argues that “reading the ‘anything of value’ and ‘for any
other purpose’ clauses to literally mean anything of value and for any other
purpose would render the specific enumerations that precede these clauses
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superfluous.” See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15
(“[W]here general words follow specific words in a statutory enumeration, the
general words are construed to embrace only objects similar in nature to those
objects enumerated by the preceding specific words.”) (quotation omitted).
Lopez-Hernandez therefore argues that the “anything of value” and “for any
other purpose” clauses “ought to be limited to things of value and other
purposes that similarly relate to payments and benefits under federal
programs or programs with a sufficient federal connection.”
We have previously rejected such a constrained reading of § 408(a)(7)(B).
There is little doubt that [§ 408(a)(7)(B) 1] was originally designed
for the sole purpose of preventing any person from obtaining
federal benefits by using a fraudulent social security number. . . .
In 1976, however, the reach of the penalty became substantially
broader; the statute was amended to include not only those who
sought unauthorized or excessive federal benefits, but also those
who misused social security numbers “for any other purpose.”
United States v. Silva-Chavez, 888 F.2d 1481, 1482 (5th Cir. 1989). We noted
the legislative history suggesting that Congress intended to prohibit the
wrongful use of social security numbers generally, and explained that the rule
of ejusdem generis “may not be used to defeat the obvious purpose of
legislation.” Id. at 1483-84. That case involved a defendant who used a false
social security number in applying for a Louisiana drivers’ license and was
issued a license containing the false social security number. See id. at 1481.
Lopez-Hernandez contends that Silva-Chavez is distinguishable because,
unlike the defendant in that case, he did not use a false social security number
to obtain an official document. However, nothing in Silva-Chavez supports
such a distinction, and we perceive no reason why § 408(a)(7)(B) should not
apply to a defendant who uses a false social security number to conceal his

1

This subsection was previously numbered 408(g)(2).

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illegal presence in the United States and avoid deportation. See also United
States v. McDow, 27 F.3d 132, 137 (5th Cir. 1994) (“Section 408 . . . requires
only the submission of the false number to any person, ‘with intent to
deceive.’”); United States v. Shivley, 927 F.2d 804, 809 (5th Cir. 1991) (“To
obtain a conviction under this statute, the government must prove that [the]
defendant (1) for any purpose, (2) with intent to deceive, (3) represented a
particular social security account number to be his or another person’s, (4)
which representation was false.”) (quotation omitted).
The judgment of the district court is AFFIRMED.

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