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.