argues that the district court failed to examine the underlying conduct and erroneously used § 2F1.1, when
the facts of this case and the language used in the Guidelines makes § 2L2.2 more appropriate.
We reject this argument.
First, under the statutory index of the 1990 Guidelines, § 2F1.1 is the only referenced provision for
violations of 42 U.S.C. § 408. Moreover, 2F1.1 is available as a relevant provision to 18 U.S.C. § 1028
violations, while § 2L2.2 is not listed as one of the available provisions. See U.S.S.G.App. A (1990).
on this index, the district court correctly applied § 2F1.1.
Second, there is a critical difference between this case and Kuku.
In Kuku, the case involved
trafficking false identification documents for the purpose of violating, or assisting others to violate, the laws
relating to naturalization, citizenship, or legal resident status, which made § 2L2.1 a natural fit. In this case,
the record is devoid of any evidence that suggests Magluta possessed the false documents to violate laws
relating to naturalization, citizenship, or resident status. Magluta did not use the false identifications to
portray that he was an American citizen; Magluta was already a naturalized citizen. Instead, the record
reflects that Magluta provided false information to various government agencies to fraudulently obtain false
identifications to use in evading law enforcement officials. Thus, when we look at the "conduct which formed
the basis of the underlying conviction" as Magluta suggests, we find that § 2F1.1 (fraud and deceit) better
suits the facts of this case. See also U.S.S.G. § 2F1.1 comment. (n.11) (1990) ("Offenses involving fraudulent
identification documents ... in violation of 18 U.S.C. §§ 1028 and 1029, are also covered by this guideline.")
Although the statutory index may not be conclusive as to the propriety of a certain Guideline, see,
e.g., United States v. Velez, 113 F.3d 1035, 1037 (9th Cir.1997), we find that it is an important starting
point for determining the correct guideline.
In Kuku, this Court relied in part on the language in Commentary 11 of § 2F1.1, which reads in
Where the primary purpose of the offense involved the unlawful production, transfer,
possession, or use of identification documents for the purpose of violating, or assisting
another to violate, the laws relating to naturalization, citizenship, or legal resident
status, apply § 2L2.1 or § 2L2.2, as appropriate, rather than § 2F1.1.
U.S.S.G. § 2F1.1 comment. (n.11), as amended by U.S.S.G.App. C, Amendment 483. [Emphasis