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September 23, 2008

Ninth Circuit covers new guideline issues in identity theft case

A (partially split) Ninth Circuit panel today covers a lot of notable guidelines ground in the identity theft context in US v. Phan, No. 06-30469 (9th Cir. Sept 23, 2008) (available here).  Here is the first paragraph of the majority opinion in Phan:

This case illustrates the dangers of an identity theft scheme whereby many persons and financial institutions are impacted when criminals steal identities. Lam Thanh Pham (“Pham”) appeals the 78-month sentence and $1 million restitution order imposed on him after he pled guilty to one count of bank fraud in violation of 18 U.S.C. § 1344. Pham and five other individuals were indicted on forty-four counts of bank fraud in connection with a massive identity theft scheme that compromised the bank accounts of ninety-five people held by fourteen different financial institutions and resulted in more than $1.6 million in loss.  Pham’s guilty plea followed.  Pham contends that it was error for the district court to apply a four-level enhancement to his sentence for a property crime involving fifty or more victims where the shortfalls in the accounts of the ninety-five individuals whose identities were stolen were fully reimbursed by their banks. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we vacate Pham’s sentence and remand for resentencing on an open record.

September 23, 2008 at 01:07 PM | Permalink


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Tracked on Sep 24, 2008 6:06:14 PM


The circuits are now officially all over the place on the definition of "victims." Will the Supreme Court grant cert. on one of these cases to add some clarity to the law?

Posted by: Hypocrit | Sep 23, 2008 4:54:15 PM

Hopefully they will soon. At first the interpretation was rational. Now the courts are bending over backwards to find a victim and ratchet up the sentences. OMG I had some sleepless nights and I'll never get over it.

Posted by: babalu | Sep 23, 2008 10:01:15 PM

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