12/22/25: Case on 2B1.1(b)(11)(A) authentication features

In United States v. Rodriguez, --- F.4th ---, No. 24-593 (9th Cir. 2025), the Court affirmed a sentence imposed on Michelle Rodriguez, who pled guilty to possession of at least 15 unauthorized access devices under 18 U.S.C. § 1029(a)(3). 

Rodriguez argued that the district court erred when it applied a four-level enhancement for possession of two California driver’s licenses under U.S.S.G. § 2B1.1(b)(11)(A)(ii), which applies if “the offense involved [] the possession or use of any . . . authentication feature.”  Her claim was that the enhancement does not apply because the prosecution did not prove that she had the requisite mens rea—that is, that she knowingly possessed the authentication features with the intent to defraud.

The Court concluded there was no error because "section 2B1.1(b)(11)(A)(ii) does not include a mens rea requirement, and thus the district court properly applied the authentication feature enhancement to Rodriguez’s sentence."

On its face, section 2B1.1(b)(11)(A) does not include a mens rea requirement. The enhancement increases a defendant’s offense level if “the offense involved [] the possession or use of any . . . authentication feature.” U.S.S.G. § 2B1.1(b)(11)(A). It does not say that the offense must involve the knowing possession of an authentication feature, or that the offense must involve the possession of an authentication feature with the intent to defraud. See id. The plain text of the enhancement requires only that the offense involve “possession,” unqualified by any descriptor of the defendant’s state of mind. 

In the end, the plain text of section 2B1.1(b)(11)(A) requires that the offense at issue involved “the possession” of an “authentication feature.” Whether Rodriguez knew she possessed the driver’s licenses bearing the authentication features or not, the authentication feature enhancement applies

We hold that section 2B1.1(b)(11)(A) applies to the simple possession of an authentication feature and does not require proof of a particular mens rea. Because Rodriguez concedes that she possessed two California driver’s licenses and that the driver’s licenses bore “authentication features,” the district court did not abuse its discretion by applying the enhancement to her sentence.