United States v. Etenyi

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT December 21, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 16-3364 (D.C. No. 6:15-CR-10102-JTM-1) HUMPHREY EZEKIEL ETENYI, (D. Kansas) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* ________________________________ Before BRISCOE, McHUGH, and MORITZ, Circuit Judges. _________________________________ A jury convicted Humphrey Ezekiel Etenyi of unlawfully producing an identification document, aggravated identity theft, and hindering deportation from the United States. Mr. Etenyi appeals all three convictions. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I. BACKGROUND A. Factual History Mr. Etenyi was born and raised in Kenya. He arrived in the United States on a non-immigrant student visa in 2006 to attend Wichita State University, from which * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. he graduated in 2011 with a degree in international business. Wishing to stay in America, Mr. Etenyi began putting down roots. He bought a house in Wichita, earned an advanced degree in healthcare leadership from Friends University, and applied for a change of status to become a permanent resident. In the course of investigating that change of status request, the government discovered a 2009 employment form which appeared to show that Mr. Etenyi, under penalty of perjury, attested that he was a citizen of the United States and eligible to work on that basis. As a result, his application was denied. And, in 2012, he was placed in removal proceedings for violating the terms of his student visa and for making a false claim of United States citizenship. In August 2013, an immigration judge found Mr. Etenyi deportable. Mr. Etenyi filed an appeal, which was denied in September 2014. He moved for reconsideration, but that motion too was denied, thus exhausting Mr. Etenyi’s administrative appeals and subjecting him to immediate removal from the United States as of February 9, 2015. Meanwhile, on January 15, 2015, Mr. Etenyi walked into an office of the Kansas Department of Revenue (“KDOR”) with his brother’s employment identification card and walked out with a temporary paper Kansas driver’s license (the “Driver’s License”) bearing Mr. Etenyi’s photograph but his brother’s name, apparent signature, date of birth, address, and license number. Mr. Etenyi and his 2 brother, Samson Etenyi Sievisa,1 contend this was an honest mistake. Mr. Sievisa, a permanent resident of the United States, testified at trial that he received a temporary Kansas driver’s license in early December 2014, with the expectation that he would receive a permanent plastic license in the mail within two to three weeks. After the card did not arrive within the expected timeframe, Mr. Sievisa lent Mr. Etenyi his Employment Authorization Card and asked him to “give me a favor and go get the driver’s license ...

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