NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 20 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50192

Plaintiff-Appellee, D.C. Nos. 2:17-cr-00505-RGK-1 v. 2:17-cr-00505-RGK

TURHAN LEMONT ARMSTRONG, AKA

Jameel Jamal, AKA Bob Jimenez, AKA MEMORANDUM* Hassan Karakra, AKA Emmett Louis, AKA Frank Masari, AKA Carlos Mata, AKA Carlos Rivera, AKA Emilio Sanchez, AKA Jose Soto, AKA T, AKA Terrence, AKA Turhan Lemont Walker, AKA Kent Warden,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted October 8, 2021 San Francisco, California

Before: HAWKINS and FRIEDLAND, Circuit Judges, and McSHANE,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael J. McShane, United States District Judge for the District of Oregon, sitting by designation. Defendant Turhan Armstrong appeals his convictions and sentence for his

involvement in a scheme to defraud banks, credit card companies, and other

lenders by using stolen identities to apply for loans. A jury found Armstrong

guilty of three conspiracy offenses and several associated substantive crimes,

including aggravated identity theft. The district court sentenced him to 259

months in prison, the low end of the applicable Guidelines Range, based on a total

offense level that included a 4-level aggravating role adjustment for Armstrong’s

involvement in the offense and an 18-level loss enhancement based on a total

intended loss calculation exceeding $3.5 million.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We

affirm Armstrong’s convictions, vacate his sentence, and remand this case to the

district court for resentencing.

1. The district court did not plainly err by failing to give a limiting

instruction sua sponte regarding evidence of the alleged co-conspirators’ guilty

pleas. The Government did not introduce the pleas as substantive evidence of

Armstrong’s guilt or for some other wrongful purpose, and defense counsel did

not object to the Government’s mention of them. The defense made its own use

of the pleas as impeachment evidence. Any suggestion of unfair prejudice from a

lack of a specific limiting instruction is undercut by the general cautionary

instruction given by the district court, and the substantial direct evidence of

2 Armstrong’s guilt. While the Government’s use of the pleas may well have

required a limiting instruction upon proper objection, see United States v. Halbert,

640 F.2d 1000, 1006-07 (9th Cir. 1981), these circumstances cannot establish

plain error, see United States v. Garcia-Guizar, 160 F.3d 511, 524 (9th Cir. 1998);

United States v. Tamura, 694 F.2d 591, 601-02 (9th Cir. 1982).

2. The district court did not plainly err by giving the jury a Pinkerton

instruction for conspiracies charged under 18 U.S.C. §§ 1029(b), 1349, and

1956(h). Federal courts have widely understood Pinkerton to apply to all

conspiracy offenses in the criminal code, and Armstrong has cited no cases to the

contrary. An error cannot be clear or obvious if there is no authority on point.

United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011).

Armstrong’s separation of powers argument likewise fails. His assertion that

Pinkerton violates separation of powers principles boils down to an assertion that

Pinkerton was wrongly decided, but we are bound to apply Pinkerton unless and

until the Supreme Court overrules it, Nunez-Reyes v. Holder, 646 F.3d 684, 692

(9th Cir. 2011) (en banc).

3. Sufficient evidence supported Armstrong’s conviction for aggravated

identity theft under 18 U.S.C. § 1028A, based on his use of the alias “Jameel

Jamal.” Section 1028A requires the Government to prove “that the defendant

knew that the ‘means of identification’ he or she unlawfully transferred,

3 possessed, or used, in fact, belonged to ‘another person.’” Flores-Figueroa v.

United States, 556 U.S. 646, 647 (2009). The Government introduced evidence

from the Social Security Administration (“SSA”) that a person named Jameel

Jamal had applied for and obtained a Social Security Number (“SSN”) about a

decade before the start of the charged conspiracy, and that an SSA employee had

verified the applicant’s identity. The Government introduced evidence that

Armstrong’s co-conspirator would obtain real SSNs and pass them on to him.

Finally, the Government offered evidence that Armstrong repeatedly and

successfully tested the authenticity of the Jameel Jamal identity in applications to

government agencies, banks, and other lenders. See United States v. Doe, 842

F.3d 1117, 1121 (9th Cir. 2016). Viewing this evidence in the light most

favorable to the prosecution, a rational jury could have concluded that Armstrong

knew that the “means of identification” associated with his alias “Jameel Jamal”

belonged to a real person.

4. The district court erred by failing to follow Application Note 2(C) to

United States Sentencing Guidelines Manual (“U.S.S.G.”) § 2S1.1. Although

Armstrong did not frame his objection at sentencing in the same terms he

currently does, he did object to the imposition of the aggravating role adjustment,

and the substance of his claim on appeal remains the same. See United States v.

Lloyd, 807 F.3d 1128, 1174-75 (9th Cir. 2015) (“[I]t is claims that are deemed

4 waived or forfeited, not arguments.”) (quoting United States v. Pallares-Galan,

359 F.3d 1088, 1095 (9th Cir. 2004)). We therefore review the district court’s

interpretation of the Guidelines de novo. United States v. Gasca-Ruiz, 852 F.3d

1167, 1170 (9th Cir. 2017) (en banc).

Application Note 2(C) requires the district court to determine the

applicability of the aggravating role adjustment based on the defendant’s role in

the money laundering offense, and not on the underlying offense from which the

laundered funds were derived. U.S.S.G. § 2S1.1 cmt. n.2(C). Here, the district

court adopted the analysis in the Presentence Report, which analyzed Armstrong’s

leadership role solely based on his conduct in the underlying fraud conspiracy,

directly contravening Application Note 2(C). We cannot be sure that this error

was harmless, and we therefore must vacate Armstrong’s sentence. United States

v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir. 2011).

Because we vacate Armstrong’s sentence on this ground, we need not and

do not address Armstrong’s contention that the loss enhancement was erroneous

because the district court failed to make adequate factual findings that he

“purposely sought to inflict” the full extent of the intended loss attributed to him,

as Armstrong argues is required by Application Note 3(A)(ii) to U.S.S.G. § 2B1.1.

This provision’s interaction with Guidelines General Application Principle

§ 1B1.3(a)(1)(B), which allows a court to attribute to a defendant the reasonably

5 foreseeable losses of his co-conspirators, presents a novel and challenging legal

issue. The district court may address this question in the first instance on remand.

Similarly, we do not address Armstrong’s claim that the district court failed to

properly consider the § 3553(a) sentencing factors. On remand, the district court

will have another opportunity to carefully weigh those factors in light of the

recalculated Guidelines Range to ensure that the new sentence is “sufficient, but

not greater than necessary, to comply with the purposes” of § 3553. 18 U.S.C.

3553(a).

Accordingly, we affirm Armstrong’s convictions, vacate his sentence, and

remand this case for resentencing consistent with this disposition.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.

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