United States v. Dubin

United States v. Dubin

Opinion

 [*1021]  Per Curiam joined by Owen, Chief Judge, and Smith, Barksdale, Stewart, Dennis, Southwick, Graves, Higginson, and Ho, Circuit Judges:

William Joseph Dubin and his son David Fox Dubin were convicted of several offenses  [*1022]  related to Medicaid fraud. They appealed, [**2]  and a panel of this court affirmed the district court's judgment.¹

The court granted rehearing en banc² to consider whether there was sufficient evidence to support David Dubin's conviction under 18 U.S.C. § 1028A(a)(1). We now affirm the district court's judgment for the reasons set forth in the panel's majority opinion.

We need not resolve whether our review of the § 1028A issue is de novo or for plain error because the conviction stands regardless of which standard of review applies.

Accordingly, the district court's judgment is AFFIRMED.

Concur by: PRISCILLA R. OWEN; ANDREW S. OLDHAM

Concur

Priscilla R. Owen, Chief Judge, joined by Smith, Barksdale, Higginson, and Ho, Circuit Judges, concurring:

Much ink has been spilled about "identity theft" in dissenting opinions in today's case.³ However, the text of 18 U.S.C. § 1028A(a)(1) does not contain the words "identity theft" or even "theft." The text of the statute instead imposes a sentencing enhancement for the commission of enumerated federal felonies when the criminal "knowingly . . . uses, without lawful authority, a means of identification of another person."⁴ Our focus must be on the actual text of the statute and not the meaning or scope of "identity theft."

David Dubin was [**3]  convicted under 18 U.S.C. § 1347(a) of "defraud[ing] a[] health care benefit program" or "obtain[ing], by means of false or fraudulent pretenses [or] representations . . . money . . . owned by, or under the custody or control of, a[] health care benefit program" (in this case Medicaid), "in connection with the delivery of or payment for health care benefits, items, or services."⁵ He was also convicted under 18 U.S.C. § 1349 of conspiracy to commit a § 1347(a) offense. The en banc court has held that these felony convictions stand.

The principal issue that has divided our court is the proper construction of § 1028A(a)(1), which sets forth a sentencing enhancement. That section provides "[w]hoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person" shall receive an additional two years of imprisonment.⁶ The health care fraud and conspiracy offenses of which Dubin was convicted are felony violations enumerated in subsection (c)(5) of § 1028A.⁷

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