In the United States Court of Appeals for the Second Circuit

AUGUST TERM 2019

No. 19-1486-cr

UNITED STATES OF AMERICA, Appellee,

v.

ANDREEA DUMITRU, AKA ANDREEA DUMITRU PARCALABOIU, Defendant-Appellant.

On Appeal from the United States District Court for the Southern District of New York

ARGUED: MAY 12, 2020 DECIDED: MARCH 22, 2021 Before: NEWMAN and CABRANES, Circuit Judges. 1

Defendant-appellant Andreea Dumitru (“Dumitru”) appeals from a judgment of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge) convicting her of asylum fraud in violation of 18 U.S.C. § 1546(a), making false statements in violation of 18 U.S.C. §§ 1001(a)(2) and (3), and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). This case presents two questions: (1) whether the evidence at trial was sufficient to sustain a conviction for aggravated identity theft, even under the narrow view of the aggravated identity theft statute promoted by Dumitru; and (2) whether the District Court erred in applying a sentencing enhancement for the involvement of 100 or more documents in the relevant offense. We answer the first question in the affirmative and the second question in the negative and AFFIRM the judgment of the District Court.

Judge Newman concurs in a separate opinion.

SUSAN C. WOLFE, Law Office of Susan C. Wolfe, New York, NY (Diane M. Fischer, Brooklyn, NY, on the brief), for Appellant.

1 Judge Hall, originally assigned to the panel, was unavailable to participate in the consideration of this matter and died on March 11, 2021. The two remaining members of the panel, who are in agreement, have decided this case in accordance with Second Circuit Internal Operating Procedure E(b). See 28 U.S.C. § 46(d); cf. United States v. Desimone, 140 F.3d 457, 458 (2d Cir. 1998).

2 ROBERT B. SOBELMAN (Nicholas W. Chiuchiolo, Alison G. Moe, David Abramowicz, Assistant United States Attorneys on the brief), for Audrey Strauss, United States Attorney, Southern District of New York, New York, NY, for Appellee.

PER CURIAM:

Appellant Andreea Dumitru (“Dumitru”) was convicted, following a jury trial, of one count each of: asylum fraud in violation of 18 U.S.C. § 1546(a), making false statements in violation of 18 U.S.C. §§ 1001(a)(2) and (3), and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). Dumitru was then sentenced to a below- guidelines aggregate term of imprisonment of 60 months, to be followed by one year of supervised release. On appeal, she challenges her conviction for aggravated identity theft and the application of a sentencing enhancement. For the reasons stated herein, we AFFIRM the judgment of the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge).

3 I. BACKGROUND

Dumitru owned and operated a law practice, Andreea Dumitru & Associates, in Sunnyside, Queens. Over time, Dumitru’s practice grew to include an increasing number of immigration cases, including applications for asylum.

Between 2012 and 2017, Dumitru submitted applications to the United States Citizenship and Immigration Services (“USCIS”), an agency of the United States Department of Homeland Security, seeking asylum on behalf of h