United States v. Dvorak

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-3463
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Douglas P. Dvorak, *
*
Appellant. *
___________

Submitted: June 18, 2010
Filed: August 20, 2010
___________

Before WOLLMAN, EBEL, 1 and COLLOTON, Circuit Judges.
___________

EBEL, Circuit Judge.

Defendant-Appellant Douglas Dvorak was convicted of multiple counts
of mail fraud, aggravated identity theft, and money laundering. The
indictment alleged that Dvorak, a chiropractor, submitted false Medicaid
claims in the names of children for whom he did not provide treatment. He
would then deposit the Medicaid reimbursement checks he received into a
checking account and, within a few days, withdraw the entire amount of the
check, in cash, from the account.

1
The Honorable David M. Ebel, United States Circuit Judge for the
Tenth Circuit, sitting by designation.
 After a jury trial, Dvorak was found guilty on all thirty-nine counts in
the indictment, which charged him with mail fraud, aggravated identity theft,
and money laundering. On appeal, Dvorak argues 1) that the evidence
presented at trial does not support his convictions for money laundering; 2)
that the jury was not properly instructed as to the elements of aggravated
identity theft in light of the Supreme Court’s decision in Flores-Figueroa v.
United States, 129 S. Ct. 1886 (2009); and 3) that the district court 2 abused its
discretion when it ordered the sentences for two of his aggravated identity
theft convictions to run consecutively. We affirm.

I.

Dvorak was a licensed chiropractor in Cedar Rapids, Iowa, who, in
November 2003, became an authorized Medicaid service provider. Medicaid
providers in Iowa submit their reimbursement claims either through an
electronic submission to Iowa Medicaid Enterprise (IME) or by mailing a
claim form to IME. The claim must include the patient’s name and birth date,
the patient’s unique Medicaid Identification Number, the diagnosis and
treatment of the patient, and the amount billed to Medicaid.

From 2005 through 2007, Dvorak obtained the names and birth dates of
numerous children in the Cedar Rapids area. One of his methods for obtaining
this information was to pay one of his patients to seek out Medicaid-eligible
children and give the children $5 in exchange for their names and birthdays,
as well as the names and birthdays of other children they knew. Dvorak

2
The Honorable Linda R. Reade, Chief Judge for the Northern District
of Iowa, presiding.

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would then contact IME with the name and birthday information, and IME
would provide him with the Medicaid Identification Numbers for those
children. Armed with that information, Dvorak then created Medicaid claims
for chiropractic services for the children without actually treating them—and
in most cases, without actually meeting them—and submitted the claims
through the mail to IME for reimbursement. 3 Two of the children in whose
name Dvorak falsely filed a claim were ten-day old Medicaid-eligible babies
who were, at the time, held in the Newborn Intensive Care Unit at St. Luke’s
Hospital in Cedar Rapids.

After submitting these claims to IME, Dvorak would receive a
reimbursement check in the mail from IME. Through this mail fraud scheme,
Dvorak received at least $71,375.82 from Medicaid; the district court
ultimately concluded that the intended loss was $120,000.

Dvorak would take the Medicaid remittance checks to a Wells Fargo
bank, which would cash the checks for him. Benita Messer, the service
manager at the bank, testified that she found Dvorak’s behavior odd, and she
even called Medicaid to verify that the checks were authentic. Ms. Messer
recommended that he open a checking account with the bank to make it easier
to process the checks, and Dvorak did so. He then would deposit the Medicaid
check into the account, and within a few days withdraw the entire amount of
the check from his account, usually bringing his balance in the account back
to zero. The amount of these deposits and subsequent withdrawals was large,
ranging from $8,274.36 to $19,865.72. Ms. Messer testified that this, too, was
unusual—Dvorak could have written checks against the account or withdrawn

3
It appears that in one instance, Dvorak obtained a Medicaid
Information Number from the parent of a child he actually treated. It was
established at trial, however, that even for this child, Dvorak later submitted
additional claims for treatment that was never provided.

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the money from an ATM rather than withdrawing the entire amount of the
check in cash.

In response to a phone call from Wells Fargo, IME began a review of
claims submitted by Dvorak. Dvorak was ultimately indicted on mail fraud,
identity theft, and money laundering charges. Eleven counts of aggravated
identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Counts 23-33), relate
to eleven children whose identities he used in submitting false claims to IME.
Each of the eleven identities corresponds to two counts of mail fraud (18
U.S.C. § 1341): one for mailing in Medicaid claims (Counts 1-11), and one for
receipt of checks in payment for those claims (Counts 12-22). The six money
laundering charges, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), are for the
cash withdrawals of the Medicaid payments (Counts 34-39).

On April 10, 2009, a jury found Dvorak guilty on all thirty-nine counts.
The court sentenced him to 37 months for the mail fraud and money
laundering charges to run concurrently, and 24 months for the identity theft
charges, with two of those charges to run consecutively to the 37 month mail
fraud/money laundering sentence, for a total of 85 months. Dvorak filed a
timely appeal.

II.

On appeal, Dvorak raises three issues. First, he argues that the evidence
does not support his conviction for money laundering because the act of
withdrawing cash from his checking account demonstrates no intent to conceal
the proceeds of his illegal activity. Second, he argues that the jury
instructions given on the aggravated identity theft charges were flawed
because they failed to include an element of the offense that the Supreme
Court has since held must be proven beyond a reasonable doubt. Finally,

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Dvorak contends that the district court erred in making the sentences for two
of his aggravated identity theft convictions run consecutively because the
court failed to consider factors set forth in the Sentencing Guidelines. We
consider each argument in turn.

A.

Dvorak first argues that his convictions for money laundering are not
supported by sufficient evidence. “This court reviews the sufficiency of the
evidence supporting a conviction de novo, viewing the evidence most
favorably to the verdict, resolving conflicts in favor of the verdict, and giving
it the benefit of all reasonable inferences.” United States v. Spencer, 592 F.3d
866, 876 (8th Cir. 2010). The “verdict must be upheld if there is an
interpretation of the evidence that would allow a reasonable jury to find the
defendant guilty beyond a reasonable doubt.” Id. (quotations omitted).

Dvorak was convicted under the provision of the money laundering
statute that makes it a crime for a defendant to conduct, or attempt to conduct,
a financial transaction that involves the proceeds of a specified unlawful
activity, “knowing that the transaction is designed in whole or in part . . . to
conceal or disguise the nature, the location, the source, the ownership, or the
control of the proceeds of specified unlawful activity.” 18 U.S.C. §
1956(a)(1)(B)(i).

There are four elements to this offense: (1) defendant conducted,
or attempted to conduct a financial transaction which in any way
or degree affected interstate commerce or foreign commerce; (2)
the financial transaction involved proceeds of illegal activity; (3)
defendant knew the property represented proceeds of some form
of unlawful activity; and (4) defendant conducted or attempted to

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 conduct the financial transaction knowing the transaction was
“designed in whole or in part [ ] to conceal or disguise the nature,
the location, the source, the ownership or the control of the
proceeds of specified unlawful activity.”

United States v. Phythian, 529 F.3d 807, 813 (8th Cir. 2008) (quoting 18
U.S.C. § 1956(a)(1)(B)(i)). The financial transactions identified in the
indictment were Dvorak’s “withdrawal[s] of cash from his Wells Fargo Bank
account.” (Indictment at 11.)

The provision of § 1956(a)(1)(B)(i) with which we are principally
concerned here is whether Dvorak’s withdrawals were “designed in whole or
in part [] to conceal or disguise . . . the location” of the illegal proceeds. 18
U.S.C. § 1956(a)(1)(B)(i) (emphasis added). Although cases addressing
§ 1956(a)(1)(B)(i) often focus upon whether the transaction was intended to
conceal the “nature” or “source” of the funds, a transaction intended to
conceal the location of the funds is also a violation of the money laundering
statute. Concealing the location of proceeds from illegal activity is a serious
offense because money that cannot be found cannot be subject to forfeiture.
Indeed, Congress enacted both the money laundering and forfeiture statutes
together in the same law, underscoring the common purpose served by those
statutes. See Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, §§ 1352,
1366 (1986); see also 18 U.S.C. §§ 981, 982 (subjecting property involved in
a money laundering offense to forfeiture). In fact, the Senate Judiciary
Committee Report on the legislation identified the first two purposes of the
statute as “creat[ing] a Federal offense against money laundering” and
“authoriz[ing] forfeiture of the profits earned by launderers.” S. Rep. No. 99-
433, at 1 (1986).

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 On appeal, Dvorak argues that nothing about the withdrawals
demonstrates that he had an intent to conceal the location of the funds. In
fact, as Dvorak points out, these transactions led to the ultimate discovery of
his scheme, as Wells Fargo contacted IME, which initiated an investigation
into Dvorak’s claims.

Dvorak relies on a number of out-of-circuit cases in which the courts
held that ordinary commercial transactions, without any additional evidence
of an intent to conceal, cannot support a money laundering conviction. For
example, in United States v. Sanders, 929 F.2d 1466 (10th Cir. 1991),
abrogated on other grounds by Salinas v. United States, 522 U.S. 52 (1997),
the court held that purchasing cars in an ordinary, commercial transaction with
the proceeds of illegal activity does not constitute money laundering. The
Tenth Circuit “reject[ed] the government’s argument that the money
laundering statute should be interpreted to broadly encompass all transactions,
however ordinary on their face, which involve the proceeds of unlawful
activity.” Id. at 1472. Rather, “the purpose of the money laundering statute
is to reach commercial transactions intended (at least in part) to disguise the
relationship of the item purchased with the person providing the proceeds and
that the proceeds used to make the purchase were obtained from illegal
activities.” Id.

Similarly, the simple transfer of money from one bank account to
another does not constitute money laundering. See United States v. Esterman,
324 F.3d 565, 570 (7th Cir. 2003) (“[W]e have stressed that the mere transfer
and spending of funds is not enough to sweep conduct within the money
laundering statute; instead, subsequent transactions must be specifically
designed to hide the provenance of the funds involved.” (internal quotations
omitted)). Nor does merely writing a check to another person constitute
money laundering. See United States v. Caldwell, 560 F.3d 1214, 1222 (10th

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Cir. 2009) (“Money laundering requires more than simply writing a check with
the proceeds of unlawful activity. We have repeatedly stated that § 1956 is
not a money spending statute.” (internal quotations omitted)).

Our own court has made similar observations. “[T]he money laundering
statute may not be so broadly construed that it becomes a ‘money spending
statute.’” United States v. Shoff, 151 F.3d 889, 892 (8th Cir. 1998) (quoting
United States v. Herron, 97 F.3d 234, 237 (8th Cir. 1996)). Accordingly, a
defendant was found not to have committed money laundering where he
purchased a cabin, in cash, with the proceeds of illicit drug activity and had
the cabin put in the name of his own company. United States v. Rockelman,
49 F.3d 418, 422 (8th Cir. 1995) (“This straightforward real estate transaction
and Rockelman’s conspicuous connection with the property bought with the
proceeds of his drug sales convinces us that the evidence here cannot support
a finding that Rockelman had the necessary intent to conceal that would
satisfy the money laundering statute.”).

In light of these cases, Dvorak argues that affirming the jury verdict
would criminalize the simple act of withdrawing cash from a checking
account. We disagree, and hold that the jury could have reasonably concluded
that Dvorak’s withdrawals were intended, at least in part, to conceal the
location of the funds. The cases cited above do not rely solely on the category
of the transaction in determining whether the transaction constituted money
laundering. Indeed, such a holding would contradict the plain terms of the
statute, which specifically defines “transaction” to include “a purchase, sale,
loan, pledge, gift, transfer, delivery, or other disposition,” as well as “a
deposit [or] withdrawal” of funds involving a financial institution. 18 U.S.C.
§ 1956(c)(3). Instead, the cases cited by Dvorak held only that there were no
circumstances surrounding the transaction in those particular cases from which
a reasonable jury could have found an intent to conceal. See, e.g., Shoff, 151

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F.3d at 892 (“That [the defendant] fraudulently spent their money . . . was not
the additional crime of money laundering absent proof that the spending
transactions were themselves designed to conceal some relevant aspect of his
use of the fraud proceeds.” (emphasis added)); Herron, 97 F.3d at 237 (“In
other words, the mere fact that [defendants] used wire transfers to send money
to Chicago cannot by itself satisfy the concealment element of the offense.”
(emphasis added)).

Accordingly, our holding today does not make it a federal offense
simply to withdraw cash from a checking account. Rather, the question in this
case is whether the circumstances surrounding these withdrawals can support
a jury verdict that the withdrawal was designed to conceal the location of the
funds. The question is one of intent, and “[i]ntent frequently cannot be proven
except by circumstantial evidence.” Phythian, 529 F.3d at 812 (8th Cir. 2008)
(quoting United States v. Henderson, 416 F.3d 686, 692 (8th Cir. 2005)); see
also United States v. Gravatt, 280 F.3d 1189, 1192 (8th Cir. 2002) (upholding
conviction for money laundering where evidence at trial “provide[d]
circumstantial evidence of fraudulent intent”); United States v. Blackman, 904
F.2d 1250, 1257 (8th Cir. 1990) (“Reviewing the entire record, we conclude
that the government presented sufficient circumstantial evidence from which
a juror could infer each element of the money laundering offense beyond a
reasonable doubt.”).

Here, there was ample circumstantial evidence from which a jury could
conclude that Dvorak withdrew his money with the intent of concealing the
location of the funds: he withdrew the entire amount of the Medicaid checks
he deposited; the withdrawals were made within one week of the deposits,
usually emptying his account completely; and the cash withdrawals were large,
ranging from $8,274.36 to $19,865.72. In addition, the withdrawals were in
cash, which, although not dispositive, does lend greater support to the jury’s

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finding that the withdrawals were made with the intent to conceal the location
of the funds for the simple reason that cash cannot be traced. Cf. United
States v. Farese, 248 F.3d 1056, 1060 (11th Cir. 2001) (finding intent to
conceal where defendant exchanged small-denomination bills for large-
denomination bills “because one large-denomination bill is easier to hide than
several small-denomination bills”); United States v. Barber, 80 F.3d 964, 970
(4th Cir. 1996) (recounting expert’s trial testimony to the same effect). In
fact, the location of the cash that Dvorak withdrew is still not known.

Thus, Dvorak’s conduct was far from being the sort of ordinary
commercial behavior that, by itself, courts have found insufficient to
constitute money laundering, such as purchasing a car, transferring money
from one bank account to another, or writing a check. Dvorak did not merely
withdraw cash from his bank account, but he did so under unusual
circumstances—so unusual and suspicious that they prompted a representative
of Wells Fargo to contact Medicaid to verify that the checks were not
fraudulent. See Esterman, 324 F.3d at 573 (stating that “unusual financial
moves culminating in a transaction” can support finding an intent to conceal).
This readily gives rise to the inference that he conducted the transactions with
the intent to conceal the location of the funds. See United States v. Nichols,
416 F.3d 811, 822 (8th Cir. 2005) (“We have upheld money laundering
convictions where there is evidence that the money transfers ‘made it more
difficult for the true owner of the money to trace what happened to it.’”
(quoting United States v. Norman, 143 F.3d 375, 377 (8th Cir. 1998))).
Therefore, based on the unique facts of this case, we conclude that a
reasonable jury weighing all the circumstantial evidence surrounding Dvorak’s
bizarre financial transactions could find, beyond a reasonable doubt, that
Dvorak acted, at least in part, with the intent to conceal the location of his
fraudulently-obtained funds.

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 B.

Dvorak next argues that his aggravated identity theft convictions should
be overturned because the jury instructions did not instruct the jury as to an
essential element of the offense. Specifically, the jury instructions did not
require the jury to conclude, beyond a reasonable doubt, that Dvorak knew
that the means of identification he used belonged to another person when he
committed the crime, as required by the Supreme Court in Flores-Figueroa v.
United States, 129 S. Ct. 1886 (2009).

“Generally, when evaluating jury instructions, we review for abuse of
discretion.” United States v. Gill, 513 F.3d 836, 849 (8th Cir. 2008). “In
conducting such review, this court must determine whether the instructions,
taken as a whole and viewed in light of the evidence and applicable law, fairly
and adequately submitted the issues in the case to the jury.” United States v.
Beckman, 222 F.3d 512, 520 (8th Cir. 2000) (internal quotations omitted). In
addition, harmless-error analysis applies to issues of instructional error,
“whether one of misdescribing an element or omitting an element altogether.”
United States v. Inman, 558 F.3d 742, 749 (8th Cir. 2009); see also Neder v.
United States, 527 U.S. 1, 9 (1999) (“We have often applied harmless-error
analysis to cases involving improper instructions on a single element of the
offense.”). Accordingly, an error in jury instructions “may be disregarded if
it is ‘clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error.’” Inman, 558 F.3d at 749 (quoting Neder,
527 U.S. at 18).

The aggravated identity theft statute provides: “Whoever . . . knowingly
transfers, possesses, or uses, without lawful authority, a means of
identification of another person shall, in addition to the punishment provided
for such felony, be sentenced to a term of imprisonment of 2 years.” 18

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U.S.C. § 1028A(a)(1) (emphasis added). In Flores-Figueroa, the Supreme
Court held that the use of the word “knowingly” in the statute requires the
government to “show that the defendant knew that the ‘means of
identification’ he or she unlawfully transferred, possessed, or used, in fact,
belonged to ‘another person.’” 129 S. Ct. at 1888. In so holding, the Supreme
Court overturned this circuit’s rule “that ‘knowingly’ only modifies ‘transfers,
possesses, or uses,’” and “that § 1028A(a)(1) requires only that the means of
identification in fact belonged to a real person, not that the defendant knew
that it did.” United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th Cir.
2008), overruled by Flores-Figueroa, 129 S. Ct. at 1888.

Dvorak’s jury trial began on April 6, 2009, and the jury returned its
verdict on April 10, 2009. The Supreme Court’s decision in Flores-Figueroa
was not handed down until nearly a month later, on May 4, 2009. Thus, the
prevailing law in the circuit at the time of Dvorak’s trial was that the
defendant did not need to know that the means of identification belonged to
another person, see Mendoza-Gonzalez, 520 F.3d at 915, and the jury
instructions given by the court did not include that additional element.

However, the district court was aware of the potential for a change in the
law. In overruling the defense’s objection to the jury instruction, the court
stated: “[A]ccording to the Eighth Circuit, there is no fifth element to
aggravated identity theft. Other circuits have disagreed, and that issue is now
squarely before the United States Supreme Court. Unfortunately, we don’t
have an answer yet.” (Transcript at 622.) Accordingly, “to make sure that we
have all the information from the jury” (id.), the court submitted the following
special interrogatory to the jury on the eleven aggravated identity theft counts:

In the event you unanimously found, beyond a reasonable
doubt, the defendant Douglas P. Dvorak guilty of Count [], place

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 a check mark next to the one following space that reflects the
defendant’s knowledge:
We, the jury

___ unanimously find the defendant, Douglas P. Dvorak, did not
know the personal information he used to commit the crime of
aggravated identity theft as charged in Count [] was assigned to
another person, specifically, a minor with the initials [], at the
time he used that person’s information to commit the crime of
aggravated identity theft.

___ unanimously find, beyond a reasonable doubt, that the
defendant, Douglas P. Dvorak, did know the personal information
he used to commit the crime of aggravated identity theft as
charged in Count [] was assigned to another person, specifically,
a minor with the initials [], at the time he used that person’s
information to commit the crime of aggravated identity theft.

The jury found Dvorak guilty on all eleven counts, and checked the second
option on all of the interrogatories, indicating that the jury found that Dvorak
“did know the personal information he used to commit the crime of aggravated
identity theft . . . was assigned to another person.”

We conclude that the interrogatories rendered harmless any error that
may have existed with the jury instructions. 4 An error in jury instructions

4
The government conceded that the court’s instructions were in error
because they did not properly instruct the jury as to the knowledge component
of the offense. We accept the government’s concession and assume, without
deciding, that the instruction given in this case—which required the jury to
(continued...)

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“may be disregarded if it is ‘clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error.’” Inman, 558
F.3d at 749 (quoting Neder, 527 U.S. at 18). Here, there is no need to guess
as to whether a rational jury would have found Dvorak guilty if the proper
instructions were given because a rational jury did find that he met the
additional element of the statute—that is, that he knew the means of
identification belonged to another person. Common sense also supports this
outcome. Dvorak committed the aggravated identity theft by obtaining the
names and birthdays of specific children, and then calling IME to find out
those specific children’s Medicaid Identification Numbers. Obviously, this
scheme could only work if the children actually existed; otherwise, IME would
have no record of the children and could not have provided Dvorak with their
Medicaid Identification Numbers. Therefore, it is clear beyond a reasonable
doubt that, with the proper instructions, the jury still would have convicted
him, and so any error in the jury instructions was harmless.

Dvorak argues that Neder’s rule—that “a jury instruction that omits an
element of the offense” is subject to harmless error review, 527 U.S. at
8—only applies if the omitted element is included in the indictment. We see
nothing in Neder to support this argument. In Neder, the district court did not
submit the element of materiality in a criminal tax statute to the jury for
consideration, believing that the issue of materiality was for the court to
decide. 527 U.S. at 6. An intervening Supreme Court decision held that
materiality in the statute is a question for the jury to decide, see United States

(...continued)
find that “the defendant knowingly used . . . without lawful authority . . . the
means of identification, that is, the name, birth date, or Medicaid
Identification Number, of another person.” (Addendum to Gov’t Br. at
2.)—was erroneous.

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v. Gaudin, 515 U.S. 506 (1995), but the Court in Neder nevertheless affirmed
because the instructional error was harmless in light of overwhelming
evidence that the omitted tax information was material. Neder, 527 U.S. at 16.
The Court noted that “only in a very limited class of cases” does harmless
error not apply, and that an instruction that omits an element of the offense
does not “necessarily render a trial fundamentally unfair” or an unreliable
“vehicle for determination of guilt or innocence.” Id. at 8-9 (quotations
omitted). This holding did not turn on the fact that materiality was alleged in
the indictment, and we see no reason why harmless error analysis should not
apply to the jury instruction at issue here.

In addition, to the extent that Dvorak argues that the indictment did not
adequately allege aggravated identity theft because it omitted an essential
element, we disagree. The indictment alleged that “DOUGLAS P. DVORAK
. . . did knowingly use without lawful authority a means of identification of
another person.” (Indictment at 8.) This language closely tracks that of the
statute, and sufficiently charged Dvorak with the crime of aggravated identity
theft. See United States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008) (“An
indictment is normally sufficient if its language tracks the statutory
language.”); see also United States v. Hernandez, 299 F.3d 984, 992 (8th Cir.
2002) (“An indictment will ordinarily be held sufficient unless it is so
defective that it cannot be said, by any reasonable construction, to charge the
offense for which the defendant was convicted.” (quotations omitted)).

The special interrogatory eliminated any possibility that the error
contributed to the verdict. Accordingly, any error in not explicitly instructing
the jury as to the knowledge requirement of the statute as explained in Flores-
Figueroa is harmless.

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 C.

Finally, Dvorak argues that the district court erred by ordering two of
the eleven aggravated identity theft sentences to run consecutively to one
another. 5 The court of appeals generally reviews a district court’s sentence for
an abuse of discretion. United States v. Lee, 545 F.3d 678, 680 (8th Cir.
2008) (Lee II). When the appellant challenges the “district court’s decision
to impose a consecutive or concurrent sentence,” however, the court generally
reviews that decision “only for reasonableness.” 6 Id.; see also United States
v. Lee, 502 F.3d 780, 781 (8th Cir. 2007) (Lee I) (analyzing the district
court’s decision to run three of defendant’s § 1028A sentences consecutively
for reasonableness).

The aggravated identity theft statute requires a two-year sentence for a
conviction, and further requires that the aggravated identity theft sentence

5
Dvorak also argues that, because the money laundering and aggravated
identity theft convictions cannot stand, the sentences imposed pursuant to
those Guideline ranges cannot stand. This simply reiterates his arguments
from points A and B above, which we have rejected earlier, and thus no
separate analysis is required here.

6
Of course, when a statute, such as § 1028A, requires that a sentence
run consecutively, the court’s decision to run that sentence consecutively “is
beyond the scope of reasonableness review.” Lee II, 545 F.3d at 680 n.2. As
explained below, § 1028A requires only that one of the § 1028A sentences run
consecutively. Accordingly, Dvorak only challenges the district court’s
decision to run a second § 1028A sentence consecutively, which we consider
under the reasonableness standard. Id.; see also Lee I, 502 F.3d at 781 (noting
that, although one of the consecutive sentences under § 1028A was mandatory
and thus not subject to reasonableness review, the district court’s decision to
run additional sentences consecutively was within the court’s discretion and
thus subject to reasonableness review).

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must run consecutively to any other sentence imposed for other convictions.
18 U.S.C. § 1028A(a)(1), (b)(2). However,

a term of imprisonment imposed on a person for a violation of this
section may, in the discretion of the court, run concurrently, in
whole or in part, only with another term of imprisonment that is
imposed by the court at the same time on that person for an
additional violation of this section, provided that such discretion
shall be exercised in accordance with any applicable guidelines
and policy statements issued by the Sentencing Commission . . . .

Id. § 1028A(b)(4). In other words, while a sentence imposed for aggravated
identity theft must run consecutively to a sentence for any other crime, the
district court has the discretion to make all the aggravated identity theft
convictions run concurrently with one another. The discretion is bounded by
the statute’s requirement that the court exercise its discretion “in accordance
with any applicable guidelines and policy statements.” Id.; see also U.S.S.G.
§ 2B1.6 cmt. n. 1(B) (“See the Commentary to § 5G1.2 . . . for guidance
regarding imposition of sentence on multiple counts of 18 U.S.C. § 1028A.”);
Lee I, 502 F.3d at 781 (“It was within the discretion of the district court . . .
to run the remaining § 1028A terms concurrently after considering the factors
described in application note 2(B) of U.S.S.G. § 5G1.2 . . . .”).

Guideline § 5G1.2, application note 2(B) specifically addresses
“multiple convictions under 18 U.S.C. § 1028A.”

In determining whether multiple counts of 18 U.S.C. 1028A
should run concurrently with, or consecutively to, each other, the
court should consider the following non-exhaustive list of factors:

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 (i) The nature and seriousness of the underlying offenses. For
example, the court should consider the appropriateness of
imposing consecutive, or partially consecutive, terms of
imprisonment for multiple counts of 18 U.S.C. 1028A in a case in
which an underlying offense for one of the 18 U.S.C. 1028A
offenses is a crime of violence or an offense enumerated in 18
U.S.C. 2332b(g)(5)(B).

(ii) Whether the underlying offenses are groupable under § 3D1.2
(Groups of Closely Related Counts). Generally, multiple counts of
18 U.S.C. 1028A should run concurrently with one another in
cases in which the underlying offenses are groupable under §
3D1.2.

(iii) Whether the purposes of sentencing set forth in 18 U.S.C.
3553(a)(2) are better achieved by imposing a concurrent or a
consecutive sentence for multiple counts of 18 U.S.C. 1028A.

U.S.S.G. § 5G1.2, cmt. n.2(B).

Dvorak focuses his argument on subparagraph (ii) of the application
note, which provides that if the underlying offenses are groupable under §
3D1.2, then the aggravated identity theft sentences should “generally” run
concurrently with one another. Id. The district court made no explicit
findings as to whether the conduct was groupable, but the mail fraud and
money laundering counts were in fact grouped together, and Dvorak is correct
that this “underlying conduct” was groupable within the meaning of § 5G1.2
note 2(B)(ii). See U.S.S.G. § 3D1.2(b) (providing that counts should be
grouped together when they “involve the same victim and two or more acts or

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transactions connected by a common criminal objective or constituting part of
a common scheme or plan”).

Although the district court did not explicitly discuss whether the counts
were groupable, the court did cite the applicable guideline. The district court
stated:

I now want to turn my attention to the concurrent or
consecutive sentence issue on the 1028A counts. . . . The Court
has the discretion to run each of the two-year mandatory counts
consecutively, which would end up with about a 22-year
consecutive sentence tacked onto the 37 months that I’m going to
impose. That, I believe, would be a sentence that would be too
high, and I’m not going to do that. However, I am going to run
two of the counts consecutively, so there will be four years on the
1028 counts running consecutively to the 37-month count sentence
[sic]. I understand that I have discretion in this regard. Guidance
for me is contained in the advisory guidelines, United States
sentencing guideline 2B1.6, comment note 1(B), and the
commentary to United States sentencing guideline 5G1.2 is also
referenced.

I find that simply running the sentences for all 1028 counts
concurrently does not capture all of the harm. In essence, I would
be punishing Mr. Dvorak the same as an offender who stole the
identity of one victim and used it one time. Of the 11 victims that
are named in the indictment by initials, defendant stole their
identity and he also used their identity on multiple false claims.
And if you look at all of the relevant conduct, defendant actually
stole the identity of over 30 children, some multiple times, in the

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 commission of his scheme to defraud. And, therefore, I think that
consecutive sentences are appropriate in this case, and that is my
intention.

(Sentencing Transcript at 85-87 (emphasis added).)

“A court must adequately explain its decision to impose consecutive
sentences” pursuant to § 1028A. Lee I, 502 F.3d at 781. In Lee I, the
government conceded that the district court “did little to explain” why it ran
the sentences consecutively. Id. We vacated the sentence because we were
“not convinced that the district court considered the factors that must inform
its decision whether to run multiple § 1028A counts concurrently or
consecutively.” Id. This case is readily distinguishable from Lee I. Unlike
in Lee I, where the district court made no reference whatsoever to the factors
in § 5G1.2, the court here clearly mentioned the applicable guideline and
implicitly based her sentence on at least one of those factors by noting the
seriousness of the crimes committed by Dvorak. See U.S.S.G. § 5G1.2, cmt.
n.2(B)(i) (permitting the sentencing court to consider “the nature and
seriousness of the underlying offenses”). While the court did not explicitly
mention each factor listed in the commentary to § 5G1.2, Lee I does not
require that a sentencing court must recite every factor contained in a
guideline. We have squarely rejected the analogous argument that sentencing
courts are required to list every single § 3553(a) factor when imposing
sentence; so long as it is clear that the court considered the factors, it need not
list them out. See United States v. Wood, 587 F.3d 882, 884 (8th Cir. 2009)
(stating that district court is not required to recite “mechanically” all of the §
3553(a) factors when imposing sentence, and that the “court adequately
addresses the factors if it references at least some of the considerations in
§ 3553(a)”).

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 Here, the district court explicitly referenced the appropriate Sentencing
Guidelines, and provided a reasoned basis for ordering two of the aggravated
identity theft sentences to run consecutively. Although the district court could
have explicitly addressed the groupability issue, it was not required to do so.
See United States v. Egu, No. 09-10247, 2010 WL 1972079, at *3 (9th Cir.
May 17, 2010) (unpublished) (upholding consecutive sentences for § 1028A
convictions as within the district court’s discretion, even though “[t]he district
court could have more specifically addressed why consecutive sentences were
appropriate despite the groupability of Defendant’s underlying convictions”).
Therefore, we conclude that the district court’s decision to run the sentences
consecutively was reasonable.

III.

For the foregoing reasons, we AFFIRM Dvorak’s conviction and
sentence.
______________________________

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