AGEE, Circuit Judge:
Mohamed Adam Abdelshafi was convicted in a bench trial in the Eastern District of Virginia on fifteen counts of health care fraud, in violation of 18 U.S.C. § 1347, and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A, and sentenced to sixty-two months' imprisonment.
Although the parties vigorously contest how the law applies to the essential facts of this case, those facts are not in dispute. Virginia Premier Health Plan ("Virginia Premier"), a health maintenance organization, contracts with the Virginia Department of Medical Assistance Services to provide medical services—including medical transportation services—to Medicaid patients in Virginia.
Virginia Premier contracted with SMT to provide medical transportation to some of its members. Typically, Virginia Premier would send SMT a daily trip log, which included patients' identifying information, contact information, and trip details. Importantly, the patient's identifying information included that person's Medicaid identification number. The data in these trip logs served as SMT's direction to transport patients and to bill Virginia Premier. For example, each handwritten claim form Abdelshafi submitted on behalf of SMT included the patient's name, date of birth, Medicaid identification number, date of service, pick-up and drop-off locations, and number of miles traveled. Virginia Premier would then pay SMT based on such factors as the mileage traveled, driver's wait time, whether wheelchair transportation was provided, and whether transportation was provided outside of normal business hours, all as submitted by Abdelshafi.
SMT's billing practices came under suspicion after Virginia Premier discovered that several claim forms Abdelshafi submitted contained substantially inflated mileage amounts. The ensuing investigation by state and federal authorities revealed that Abdelshafi not only inflated mileage amounts, but also submitted claim forms for trips that did not, in fact, occur. Investigators concluded these billing practices allowed Abdelshafi to collect at least $308,329.00 in fraudulent payments.
At trial, Abdelshafi argued in a motion for acquittal that he could not be guilty of aggravated identity theft because he did not use Medicaid patients' identifying information "without lawful authority." 18 U.S.C. § 1028A(a)(1). Abdelshafi contended that since Virginia Premier specifically furnished him with patients' identifying information for use in SMT's billing, he was in lawful possession of the Medicaid identification numbers and other identifying information. In Abdelshafi's view, "excessive use" of that legitimately obtained
The district court considered the matter and ruled that the aggravated-identity-theft statute "does not require that" another's identifying information "be stolen" or misappropriated. Id. at 394. Further, the court read 18 U.S.C. § 1028A(a)(1) to proscribe the use of another "person's identity for any unlawful purpose[ ]." Id. at 395.
Id. at 394-95.
At sentencing, Abdelshafi also objected to a proposed two-level enhancement of his Guidelines offense level on the health-care-fraud counts for abusing a position of trust. See U.S.S.G. § 3B1.3. First, Abdelshafi maintained that his relationship with Virginia Premier consisted of a mere "ordinary commercial contract" and thus did not involve a position of trust. J.A. at 418. Second, focusing on the limited services SMT provided, Abdelshafi argued that he did not possess the "significant amount of discretion" necessary to support such an enhancement. Id.
The district court determined that the appropriate inquiry turned on "the total discretion" Abdelshafi possessed "with respect to the victim." Id. at 424. Abdelshafi, in the district court's view, "exercise[d] discretion" in recording "how many miles that he drove, the time of day, [and] the type of transportation" in what was "somewhat of a self-policing relationship" in regard to billing Virginia Premier. Id. at 427. In addition, Abdelshafi's discretion in this regard occurred in the context "of providing Medicaid services" and clearly involved "compensat[ion] from Medicaid funds." Id. at 426. The district court consequently overruled Abdelshafi's objection and increased his offense level by two levels for abusing a position of trust.
On appeal, Abdelshafi reasserts these arguments in contending that the district court erred in denying his motion for acquittal on the aggravated identity theft counts and in imposing a Guidelines enhancement for abuse of trust. "We review de novo a district court's denial of a motion, made pursuant to Rule 29 of the Federal Rules of Criminal Procedure, for judgment of acquittal." United States v. Perkins, 470 F.3d 150, 160 (4th Cir.2006). Similarly, we "review de novo the district court's legal interpretation of what constitutes `a position of trust' under [U.S.S.G.] § 3B.3," but our review of the district court's "factual findings" is only "for clear error." United States v. Ebersole, 411 F.3d 517, 535-36 (4th Cir.2005). We have jurisdiction over this appeal under 28 U.S.C. § 1291.
A. Aggravated Identity Theft
The aggravated-identity-theft statute, 18 U.S.C. § 1028A, in pertinent part reads as follows: "Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a
To establish a violation of § 1028A(a)(1), the Government must prove the defendant (1) knowingly transferred, possessed, or used, (2) without lawful authority, (3) a means of identification of another person, (4) during and in relation to a predicate felony offense.
The argument on appeal relates only to the second element of a § 1028A(a)(1) offense, as Abdelshafi maintains that his use of Medicaid patients' identifying information was not "without lawful authority." In order to use the identification of another without lawful authority, Abdelshafi contends that a defendant must "misappropriat[e] or "misrepresent . . . someone's identity or identifying information." Opening Brief at 16. Because he "did not steal or otherwise unlawfully obtain," id. at 20, Medicaid patients' identifying information or "misrepresent . . . his own or some other person's identity," id. at 22, Abdelshafi argues he did not commit aggravated identity theft.
When engaging in statutory interpretation, we "first and foremost strive to implement congressional intent by examining the plain language of the statute." United States v. Passaro, 577 F.3d 207, 213 (4th Cir.2009). "[A]bsent ambiguity or a clearly expressed legislative intent to the contrary," we thus give a statute its "plain meaning." United States v. Bell, 5 F.3d 64, 68 (4th Cir.1993). A statute's plain meaning is determined by reference to its words' "ordinary meaning at the time of the statute's enactment." United States v. Simmons, 247 F.3d 118, 122 (4th Cir.2001). We remain mindful that in "interpreting the plain language of a statute, we give the terms their ordinary, contemporary, common meaning, absent an indication Congress intended" the statute's language "to bear some different import." Stephens ex rel. R.E. v. Astrue, 565 F.3d 131 (4th Cir.2009) (quotations omitted).
As the Supreme Court noted in its discussion of § 1028A(a)(1) in Flores-Figueroa v. United States, ___ U.S. ___, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009), "[n]o special context is present here." 129 S.Ct. at 1891. Our analysis accordingly focuses on the statute's plain text. We agree with the Eleventh Circuit that "[n]othing in the plain language of the statute requires that the means of identification" at issue "must have been stolen"—or as Abdelshafi characterizes the point "misappropriated"— "for a § 1028A(a)(1) violation to occur." Hurtado, 508 F.3d at 607. Consequently, "strong textual reasons" support our rejection of Abdelshafi's version of the statute's meaning. Flores-Figueroa, 129 S.Ct. at 1890.
The Eleventh Circuit in Hurtado aptly stated the pertinent point: "For
Section § 1028A(a)(1)'s "broader context" further supports our conclusion that a person need not "misappropriate" another's identity to use it "without lawful authority." Passaro, 577 F.3d at 213. As noted in Hurtado, 18 U.S.C. § 1028—the section preceding § 1028A—"enumerates eight identity-fraud violations." 508 F.3d at 607-08. Two of these violations specifically require that an identification document be "stolen or produced without lawful authority." 18 U.S.C. §§ 1028(a)(2) & (6) (emphasis added); see also Hurtado, 508 F.3d at 607.
If Congress had wished to include a misappropriation element in the aggravated-identity-theft statute it stands to reason that it would have included language in § 1028A(a)(1) similar to that used in the immediately preceding section. As the Hurtado Court explained:
508 F.3d at 608. The fact that Congress did not include such language in § 1028A(a)(1) supports our conclusion that the aggravated-identity-theft statute does not contain a misappropriation element: "`[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.'" Dean v. United States, ___ U.S. ___, ___, 129 S.Ct. 1849, 1854, 173 L.Ed.2d 785 (2009) (quoting Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983)) (alteration in original); see also Hurtado, 508 F.3d at 608.
Contrary to Abdelshafi's assertions, the aggravated-identity-theft statute's use of the phrase "without lawful authority" is "broad and unambiguous."
Our conclusion in this regard is not altered by Abdelshafi's representation that "every single incident of health care fraud by a provider would also constitute aggravated identity theft" if his conduct is deemed to violate the statute.
"Even if we were more persuaded than we are by [this] policy argument, the result in this case would be unchanged. Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress." United States v. Rodgers, 466 U.S. 475, 484, 104 S.Ct. 1942, 80 L.Ed.2d 492 (1984). We adhere to the principle that "[f]ederal crimes are defined by Congress, and so long as Congress acts within its constitutional
After all, the use of another person's means of identification makes a fraudulent claim for payment much harder to detect and, therefore, more likely to succeed. It also often casts undue suspicion on the individuals whose identifying information is misused and infringes their interest in keeping personal information private and secure. These factors provide ample justification for the increased punishment of those who use another's identifying information in fraudulently billing for medical services. A literal reading of the unambiguous terms of the statute, "in light of ordinary principles of statutory interpretation," therefore, will not produce "absurd results" or "thwart the obvious purpose of the statute."
B. Abuse of Trust Enhancement
We now turn to Abdelshafi's claim that the district court erred in imposing a two-level enhancement to his Guidelines' offense level for abuse of trust. See U.S.S.G. § 3B1.3. On appeal, Abdelshafi argues that he "had no relationship with Medicaid and was given no discretion by Virginia Premier. Therefore the position of trust enhancement is inapplicable." Opening Brief at 26. For the following reasons, we disagree.
Section 3B1.3 of the United States Sentencing Guidelines provides that a defendant's offense level should be increased by two levels "[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense." Accordingly, the enhancement applies if "the defendant abused a position of trust and that abuse significantly contributed to the commission
In evaluating application of the enhancement, we generally weigh three factors to determine whether a particular defendant abused a position of trust, including (1) whether the defendant had special duties or special access to information not available to other employees, (2) the extent of the discretion the defendant possessed, and (3) whether the defendant's actions indicate that he is more culpable than others in similar positions who engage in criminal acts. See Akinkoye, 185 F.3d at 203. In this case, however, resort to the traditional balancing test proves unnecessary. Application note 2(B) to § 3B1.3 specifies that an abuse-of-trust enhancement applies, "[n]otwithstanding Application Note 1, or any other provision of this guideline," when the defendant "exceeds or abuses the authority of his or her position in order to obtain, transfer, or issue unlawfully, or use without authority, any means of identification."
The facts of this case fall plainly within the scope of application note 2(B). Abdelshafi abused the authority of his position in using Medicaid patients' identifying information, without authority, to file fraudulent claims for payment. Application note 2(B) cites as an example of an abuse of trust under the guideline "a hospital orderly who exceeds or abuses the authority of his or her position by obtaining or misusing patient identification information from a patient chart." U.S.S.G. § 3B1.3 application note 2(B)(ii). Abdelshafi, quite similarly, abused the authority of his position in misusing the patient identification information listed on trip logs he received from Virginia Premier.
Abdelshafi's arguments in regard to his lack of discretion and fiduciary relationship with Medicaid are beside the point in the face of the plain reading of application note 2.
For present purposes, it is sufficient to say that Abdelshafi enjoyed a position of trust in regard to patients' identifying information comparable to that of a hospital orderly in the application note (2)(B) example. This conclusion remains valid regardless of whether we consider the victim in this case to be Medicaid, Virginia Premier, the patients whose identifying information Abdelshafi misused, or all of them. Furthermore, Abdelshafi's abuse of trust significantly facilitated his commission of aggravated identity theft, as it granted him access to the patient identifying information necessary to file fraudulent billing claims. We accordingly uphold the district court's decision to impose an abuse-of-trust enhancement. See United States v.
For the above-stated reasons, we affirm the judgment of the district court.