United States Court of Appeals
For the First Circuit
No. 07-2767
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO JOSÉ VIDAL-REYES,
a/k/a PEDRO LUIS RODRÍGUEZ,
a/k/a/ PEDRO LUIS RODRÍGUEZ-TRINIDAD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Torruella, Lipez, and Howard,
Circuit Judges.
William W. Fick, Federal Defender Office, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.
April 3, 2009
TORRUELLA, Circuit Judge. Defendant-Appellant Pedro José
Vidal-Reyes ("Vidal"), a citizen of the Dominican Republic, pled
guilty to aggravated identity theft under the federal aggravated
identity theft statute, 18 U.S.C. § 1028A, as well as to several
non-predicate counts relating to his attempt to pass himself off as
a United States citizen on a previous occasion. He was sentenced
to a mandatory term of imprisonment of two years on the identity
theft count, followed by fifteen months on the other counts. The
sentencing court indicated that it believed that it lacked
authority under § 1028A to impose a lighter sentence.
Vidal now challenges his sentence, alleging, inter alia,
that the district court erred as a matter of law in finding that it
could not consider the mandatory two-year sentence imposed by 18
U.S.C. § 1028A in assigning a sentence for Vidal's non-predicate
offenses. His challenge raises a question of first impression in
this circuit concerning the extent to which 18 U.S.C. § 1028A curbs
a district court's discretion to take the statute's mandatory
sentence into account when sentencing a defendant on other counts
of conviction.
After careful consideration, we conclude that the
district court erred in determining that it lacked authority to
consider 18 U.S.C. § 1028A's mandatory two-year sentence for
aggravated identity theft in sentencing the defendant for non-
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predicate crimes charged in the same indictment. We therefore
vacate the sentence imposed and remand for resentencing.
I. Background
Vidal pled guilty to all counts. We therefore recite the
facts as contained in the pre-sentence report ("PSR"), sentencing
memoranda, and transcripts of the plea and sentencing hearings.
See United States v. Marks, 365 F.3d 101, 102 (1st Cir. 2004);
United States v. Santos, 357 F.3d 136, 138 (1st Cir. 2004).
Moreover, as Vidal challenges only his sentence, the facts
recounted are limited to those necessary to addressing that claim.
A. Factual Background
The appellant, Vidal, is an illegal alien from the
Dominican Republic who has been residing in the United States under
the assumed identity and identifiers of another individual -- Pedro
Luis Rodríguez –- a United States citizen born in San Juan, Puerto
Rico on September 3, 1964. In July 2002 Vidal applied for a U.S.
passport application under the name "Pedro Luis Rodríguez," listing
that individual's social security number and other personal
identifiers in the application, but appending a photograph of
himself. Vidal was issued a U.S. passport carrying the name "Pedro
Luis Rodríguez," bearing Vidal's photograph.
Around this time Vidal was being investigated by the
Commonwealth of Massachusetts for unrelated state drug offenses for
which he was ultimately charged, convicted and, in 2005, sentenced
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to a four-year and one-day term of imprisonment. Upon Vidal's
arrest and fingerprinting in connection with the drug offense
investigation, authorities discovered Vidal's true identity and
destroyed the fraudulent U.S. passport he had obtained under his
assumed name. Nevertheless, Vidal was not notified that his true
identity had been discovered nor was he charged with any identify
theft or fraud-related crime at that time. The Commonwealth
charged him and incarcerated him for the drug offense in a
Massachusetts correctional facility under the name Pedro Luis
Rodríguez.
Around January 2006, while still incarcerated in
Massachusetts on the state drug offenses, Vidal wrote a letter to
the Department of Health and Demographic Registry in Puerto Rico,
representing himself to be a U.S. citizen and requesting a birth
certificate in the name "Pedro Luis Rodríguez," listing that
individual's social security and date of birth. Vidal later asked
another person, Gloria Frías, to mail the letter for him, and to
attach to it a photocopy Vidal retained of the fraudulent U.S.
passport he had previously obtained. Frías complied with Vidal's
request.
On June 1, 2006, Vidal was interviewed in prison by
agents from the Department of Diplomatic Security. At first, Vidal
told agents that he was Pedro Luis Rodríguez of Puerto Rico. He
ultimately admitted to being a Dominican national by the name of
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José Luis Vidal-Reyes, and to filing fraudulent passport
applications under the name "Pedro Luis Rodríguez".
B. The Original and Superseding Indictments
On December 6, 2006, a federal grand jury returned a
four-count indictment (the "original indictment") charging Vidal
with misrepresentation of a social security account number, in
violation of 42 U.S.C. § 408(a)(7)(B) (Count One); false
representation of U.S. citizenship in violation of 18 U.S.C. § 911
(Count Two); aggravated identity theft in violation of 18 U.S.C.
§ 1028A (Count Three); and false statements on a passport
application, in violation of 18 U.S.C. § 1542 (Count Four). All
the counts charged derived from the events that took place on or
about July 2002 when Vidal first submitted a U.S. passport
application under his assumed name and social security number.
On April 13, 2007, Vidal moved to dismiss the aggravated
identity theft count charged in the original indictment, on the
ground that the aggravated identity theft statute, 18 U.S.C.
§ 1028A, was not enacted until 2004, and thus, its application to
Vidal's 2002 conduct violated the Ex Post Facto Clause of the U.S.
Constitution. Recognizing its error, the government then
superseded the original indictment. In the superseding indictment,
the government changed the factual basis for the aggravated
identity theft charge, renumbered as Count Four, to offense conduct
that took place in 2006. Specifically, the § 1028A count was
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amended so as to be based on Vidal's use of false information to
obtain a copy of a United States birth certificate in the name
"Pedro Luis Rodríguez," which Vidal had requested from Puerto Rican
authorities in 2006, while he was incarcerated. Notably, the
alteration of the offense conduct time frame for the aggravated
identity theft count, from events that occurred in 2002 to events
that occurred in 2006, was the only change made to the original
indictment by the superseding indictment. The factual basis for
the additional counts remained Vidal's conduct in July 2002 and no
new charges based on conduct occurring in 2006 were brought.1
Vidal ultimately pled guilty to all four counts charged.
C. Sentencing
In its PSR, the Probation Office calculated Vidal's
Guidelines sentencing range ("GSR") to be 15 to 21 months on Counts
One through Three (based on a total offense level of 12 and a
criminal history category of 3). The PSR further stated that, for
Count Four, a "consecutive term of 2 years is mandated by statute."
Vidal submitted objections to the PSR and filed a
sentencing memorandum with the district court. A sentencing
hearing was held on November 7, 2007. In his submissions and at
1
Thus, as amended, the superseding indictment charged defendant
with the 2002 misrepresentation of a social security number, 42
U.S.C. § 408(a)(7)(B) (Count One), false representation of U.S.
citizenship in 2002, 18 U.S.C. § 911 (Count Two), false statements
in the 2002 passport application, 18 U.S.C. § 1542 (Count Three),
and aggravated identity theft in 2006, 18 U.S.C. § 1028A (Count
Four).
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the hearing, Vidal did not challenge the probation officer's
calculation of the GSR, but instead requested a below-GSR sentence
of one day on Counts One, Two and Three, followed by the mandatory
two-year term on Count Four. Vidal's position was that this total
sentence of two-years and one day would be, under 18 U.S.C. § 3553
(a), "sufficient, but not greater than necessary, to comply with
the purposes [of sentencing]."
Vidal argued that the substantial variance from the GSR
he requested on Counts One through Three was justified because a
GSR sentence (15 to 21 months) would be "excessive" when combined
with the consecutive mandatory two-year sentence to be imposed on
Count Four. This was especially true when compared to the types of
sentences that persons who traffic in false documents, rather than
mere end-users like Vidal, usually receive. Vidal further argued
that a variance was justified in order to take into account such
factors as the delays in the case (including the government's
charging error) that precluded him from serving a greater portion
of his federal sentence concurrently with his state sentence and
the fact that after completing his sentence Vidal would likely be
held in immigration detention for a substantial period awaiting
deportation.
The government recommended a fifteen-month sentence on
Counts One, Two and Three -- the bottom of the applicable GSR -- to
run consecutively with the two-year term mandated by statute for
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Count Four. In response to Vidal's request that the district court
downwardly vary from the GSR and impose only a one-day sentence on
Counts One through Three in order to make the total sentence
reasonable, the government argued that doing so would be
impermissible based on the language of the aggravated identity
theft statute.2 Specifically, the government took the position
that the statute, at § 1028A(b)(3), prohibited the court from
"tak[ing] into account" the two-year statutory minimum for
aggravated identity theft when sentencing a defendant for other
counts of conviction. See 18 U.S.C. § 1028A(b)(3) (quoted infra at
section II.C.). Moreover, the government argued that the statute,
at § 1028A(b)(2), prohibited running any part of the two-year
mandatory sentence concurrently with any other sentence, and that
doing as Vidal proposed would be an "end run around the language of
the statute."
Vidal responded that § 1028A(b)(3)'s prohibition on
considering the mandatory two-year term when sentencing a defendant
on other counts, by its terms, only applied where those other
2
18 U.S.C. § 1028A, in relevant part, states:
(a) Offenses
(1) In general – Whoever, during and in
relation to any felony violation enumerated in
subsection (c), 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.
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counts were predicate felonies underlying the aggravated identity
theft conviction. In this case, Vidal maintained, because the 2006
conduct underlying his aggravated identity theft count was never
charged, § 1028A(b)(3) did not apply.3 Thus, according to Vidal,
the court was free to take the two-year mandatory sentence for
Count Four into account in sentencing Vidal on the non-predicate
counts.
The court adopted the government's recommendation and
sentenced Vidal to a term of 15 months on Counts One through Three,
followed consecutively by a two-year term on Count Four. Though
the court expressed a desire to impose a lower sentence, it thought
itself precluded from doing so. It explained its reasoning as
follows:
I am going to sentence you to the
recommendation that has been made by the
government in this case. And I want you to
understand, for defense counsel's purposes, I
don't feel I have the authority to adopt your
recommendation. So if I had the authority, I
thought I had the authority, I would conclude
that a two-year sentence as a cumulative
effect would be the appropriate sentence here.
Not too much, not too little but just right.
But I don't believe I can do what you have
asked me to do. So having said it that way,
you have got an appealable issue I think and
whatever happens happens. But that is -- I
think the government's advice to me on this
3
Vidal further argued that, whatever the effect of § 1028A, the
court must take into account his arguments for downward variance
from the GSR in determining the appropriate sentence on Counts One
through Three.
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issue is the correct advice and that is why I
am following the recommendation.
Vidal filed a timely notice of appeal.
II. Discussion
In this sentencing appeal defendant argues that the
district count erred for two reasons, either of which justify
remand for resentencing: (1) that the district court erred as a
matter of law in holding that it could not take into account the
mandatory sentence imposed under 18 U.S.C. § 1028A in assigning a
sentence for Vidal's other non-predicate offenses; and (2) that,
whatever the effect of § 1028A, the district court erred in failing
to grant a downward variance from the GSR on the non-1028A
offenses. Because we accept Vidal's first argument and vacate and
remand for resentencing on that ground, we need not reach Vidal's
second claim regarding the reasonableness of his 15-month sentence
for the non-1028A offenses. See United States v. Rodríguez, 527
F.3d 221, 231 (1st Cir. 2008) (reasoning that because court vacated
defendant's sentence and remanded for resentencing, it need not
reach defendant's alternative argument, which challenged the
substantive reasonableness of sentence); United States v. Reccko,
151 F.3d 29, 34 n.3 (1st Cir. 1998) (concluding that because remand
for resentencing was already required based on finding of one
sentencing error, court need not address defendant's alternative
claim of sentencing error).
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A. Standard of Review
This court reviews de novo questions of statutory
interpretation that bear on sentencing. United States v. Jaca-
Nazario, 521 F.3d 50, 56 (1st Cir. 2008). As the effect of 18
U.S.C. § 1028A upon a district court's sentencing discretion "is
purely a question of statutory interpretation . . . the [district]
court's answer to it engenders de novo review." See United States
v. Caraballo, 552 F.3d 6, 9 (1st Cir. 2008).
B. Mandatory Sentence as Grounds for Variance
Before assessing the extent to which 18 U.S.C. § 1028A
altered the district court's authority to consider the effect of a
mandatory sentence as grounds to vary downwardly from the
guidelines on other counts of conviction, we will begin by noting
the extent of that authority absent statutory intervention.
Vidal cites United States v. Webster for his proposition
that a sentencing court's discretion to take a mandatory sentence
into account is "long-acknowledged in the law of this Circuit and
reinforced by recent Supreme Court sentencing jurisprudence." See
54 F.3d 1 (1st Cir. 1995). In Webster we concluded that:
[I]n departing from a guideline sentence the
district court is free to exercise its own
judgment as to the pertinence, if any, of a
related mandatory consecutive sentence. Should
the district court think that the latter has
some role along with other factors in fixing
the extent of a guideline departure in a
particular case, that is within its authority;
and should that court decline to consider the
mandatory minimum in fixing the other
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sentence, that too is within its authority.
For this court to decide upon the ingredients
of a departure one by one would go very far
toward defeating discretion.
Id. at 4. However "long-acknowledged" such discretion may be, it
is clear that such discretion exists following the fundamental
revival of discretion in sentencing accomplished by the Supreme
Court's decision in United States v. Booker, 543 U.S. 220 (2005)
and its progeny. See United States v. Taylor, 532 F.3d 68, 69 (1st
Cir. 2008) (noting that the Supreme Court's decisions in Gall v.
United States, 128 S. Ct. 586 (2007), Kimbrough v. United States,
128 S. Ct. 558 (2007), and Rita v. United States, 551 U.S. 338
(2007), "make[] clear that in the post-Booker world, district
judges are empowered with considerable discretion in sentencing").
After Booker, the applicable guidelines range is treated merely as
advisory and the sentencing court is free to exercise its
discretion to impose a reasonable sentence outside the guidelines
range that is "sufficient, but not greater than necessary" based on
the factors articulated in § 3553(a). See Rodríguez, 527 F.3d at
227-38 (describing § 3553(a) as a "tapestry of factors, through
which runs the thread of an overarching . . . parsimony principle"
that "instructs district courts to impose a sentence sufficient,
but not greater than necessary to accomplish the goals of
sentencing" (internal quotation marks & citation omitted)). Thus,
to the extent that a mandatory term of imprisonment reasonably
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bears on those relevant factors,4 it remains, absent legislation to
the contrary, within the sentencing court's discretion to take it
into account. See Rodríguez, 527 F.3d at 230 ("[A]bsent an
unambiguous congressional directive barring sentencing courts from
considering [a particular factor], a sentencing court can include
that datum in its sentencing calculus, as long as the court grounds
its rationale in the complex of factors enumerated in 18 U.S.C.
§ 3553(a)"). The issue then, is whether the language of 18 U.S.C.
§ 1028A curtails that discretion.
C. Effect of 18 U.S.C. § 1028A
The federal aggravated identity theft statute, 18 U.S.C.
§ 1028A, imposes a mandatory two-year term of imprisonment. 18
U.S.C. § 1028A(a)(1). That mandatory term is to be added to the
sentence imposed for "any felony violation enumerated in subsection
(c)" of the statute, if, "during and in relation to" that felony,
the perpetrator "knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another person."
Id. Among the felonies enumerated in the relevant subsection are
4
The effect of a mandatory consecutive sentence certainly bears
upon the § 3553(a) factors to a certain extent. Most obviously,
the total amount of time a defendant will spend incarcerated due to
the effect of a mandatory consecutive sentence inherently
implicates the goal of incapacitation, i.e. "the need for the
sentence imposed . . . to protect the public from further crimes of
the defendant." 18 U.S.C. § 3553(a)(2); see also United States v.
Franklin, 499 F.3d 578, 587 (6th Cir. 2007) (Moore, J. concurring)
("The § 3553(a) factors require the district court to give at least
some consideration to the total amount of time that a defendant
will spend in prison.").
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those that violate 18 U.S.C. § 911, relating to false personation
of U.S. citizenship, and 42 U.S.C. § 408, relating to
misrepresentation of a social security number. 18 U.S.C. § 1028
A(c)(2) & (11).
In addition to imposing a mandatory two-year sentence for
violations of the statute, 18 U.S.C. § 1028A contains several
provisions dictating how that sentence must be imposed. Two of
these are central to the issues before us in this appeal. First,
section (b)(2) requires that:
[N]o term of imprisonment imposed on a person
under [it] shall run concurrently with any
other term of imprisonment imposed on the
person under any other provision of law.
18 U.S.C. § 1028A(b)(2) (emphasis added).5 Second, section (b)(3)
provides that:
[I]n determining any term of imprisonment to
be imposed for the felony during which the
means of identification was transferred,
possessed or used, a court shall not in any
way reduce the term to be imposed for such
crime so as to compensate for, or otherwise
take into account, any separate term of
imprisonment imposed or to be imposed for a
violation of this section.
18 U.S.C. § 1028A(b)(3) (emphasis added).
5
We note that "[t]he only exception to this statutorily mandated
rule [requiring that all other sentences run consecutively to a
sentence under § 1028A] grants a district court discretion to run
additional § 1028A sentences imposed at the same time concurrently
with each other." United States v. Lee, 545 F.3d 678, 680 (8th Cir.
2008) (citing 18 U.S.C. § 1028A(b)(4))(emphasis added).
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As shown above, the language of the statute, at
§ 1028A(b)(3), clearly prohibits a sentencing court from taking
into consideration § 1028A(a)(1)'s mandatory two-year term for
aggravated identity theft to reduce the sentence that it would
otherwise impose when sentencing a defendant for predicate offenses
underlying the aggravated identity theft conviction, i.e. "the
felony during which the means of identification was transferred,
possessed or used." Id.; see also United States v. Omole, 523 F.3d
691, 699 (7th Cir. 2007) (holding that had the sentencing judge
"even slightly factored" § 1028A's mandatory two-year sentence into
his decision to lean toward a lighter sentence on predicate wire
fraud counts "he would have violated 18 U.S.C. § 1028A(b)(3)"). It
is undisputed, however, that in this case the court never had
occasion to impose a sentence for any "felony during which the
means of identification was transferred," because the 2006
predicate offenses underlying Vidal's aggravated identity theft
conviction were never charged.6 Rather, all counts charged, with
the exception of Count Four, related to Vidal's 2002 conduct.
6
While no one disputes that Counts One through Three were not
predicates for Vidal's § 1028A Count, this may be somewhat
obfuscated on these facts, as the "unrelated" counts would actually
be predicate offenses if not for the temporal disparity between
their commission and the commission of the aggravated identity
theft charged. Nevertheless, the indictment is abundantly clear
that the offenses underlying the § 1028A count are offenses that
took place in 2006, while other counts are based on conduct that
took place in 2002. Thus, the latter cannot be predicates for the
former.
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Thus, the question raised in this appeal, which is one of first
impression, is whether § 1028A similarly curbs the sentencing
court's discretion to take the two-year mandatory sentence for
aggravated identity theft into account in sentencing a defendant
for other non-predicate counts of conviction charged in the same
indictment.
In interpreting the meaning of the statute, our analysis
begins with the statute's text. United States v. Godin, 534 F.3d
51, 56 (1st Cir. 2008) ("Our interpretive task begins with the
statute's text"); see also Carcieri v. Salazar, 129 S. Ct. 1058,
1063 (2009). "If the meaning of the text is unambiguous our task
ends there as well." Godin, 534 F.3d at 56; see also Carcieri, 129
S. Ct. at 1063-64 (noting the "settled principle[]" that where "the
statutory text is plain and unambiguous" the court "must apply the
statute according to its terms"). "If the statute is ambiguous, we
look beyond the text to the legislative history in order to
determine congressional intent." Godin, 534 F.3d at 56. "'A
statute is ambiguous only if it admits of more than one reasonable
interpretation.'" Id. (quoting Gen. Motors Corp. v. Darling's, 444
F.3d 98, 108 (1st Cir. 2006)).
Vidal argues that the unambiguous text of 18 U.S.C.
§ 1028A(b)(3) only bars a court from taking into account the
mandatory two-year sentence for aggravated identity theft to reduce
the sentence "for the felony during which the means of
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identification was transferred, possessed or used," i.e. for
predicate felonies only. Nothing in the statute, however, says
that district courts may not take the mandatory two-year sentence
into account when sentencing for non-predicate offenses. According
to Vidal, absent an express prohibition in the text of the statute,
courts retain their authority to take the mandatory term into
account. We agree.
The government asks us to look beyond the express
language of 18 U.S.C. § 1028A(b)(3) to other indicators of
congressional intent which, it argues, necessitate a contrary
interpretation of the statute. Because we find that the "the plain
language of the statute unambiguously reveals its meaning, and the
revealed meaning is not eccentric," we "need not consult other aids
to statutory construction." United States v. Meade, 175 F.3d 215,
219 (1st Cir. 1999); see also Carcieri, 129 S. Ct. at 1065
(overturning an interpretation of a term in the Indian
Reorganization Act ("IRA") as contrary to the plain language of
that statute). Our inquiry could stop here, as Vidal argues it
should. Nevertheless, "[f]rom time to time . . . courts (perhaps
manifesting a certain institutional insecurity) employ . . .
secondary sources as a means of confirmation." Meade, 175 F.3d at
219 (collecting sources). In an abundance of caution, we follow
suit.
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The government first argues that evidence of
congressional intent gleaned from other provisions in the statute
and the statute's legislative history compel the conclusion that
Congress intended district courts to first independently determine
a reasonable sentence for all other charged offenses, without
regard to the mandatory sentence for aggravated identity theft, and
then add the mandatory two-year sentence to the total. The
government principally relies on § 1028A(b)(2), which prohibits the
sentence for aggravated identity theft to run concurrently "with
any other term of imprisonment imposed on the person under any
other provision of law." 18 U.S.C. § 1028A(b)(2) (emphasis added).
This provision, the government argues, evinces clear congressional
intent that the penalty for aggravated identity theft be
consecutive to any other sentence imposed. According to the
government, to reduce any other sentence so as to lessen the impact
of the mandatory minimum would be to undercut the clear mandate of
§ 1028A(b)(2).
To further support its construction of 18 U.S.C.
§ 1028A(b)(2) as barring the reduction of any other sentence to
compensate for the mandatory minimum, the government relies on
precedent interpreting similar language in 18 U.S.C. § 924(c), a
statute on which, it argues, § 1028A was modeled.7 That statute
7
18 U.S.C. § 924(c) imposes an additional prescribed term of
imprisonment, over and above that imposed on the underlying
offense, upon a defendant who "during and in relation to any crime
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contains a provision stating that "no term of imprisonment imposed
on a person under [it] shall run concurrently with any other term
of imprisonment imposed on the person." 18 U.S.C.
§ 924(c)(1)(D)(ii). The government cites United States v.
Roberson, 474 F.3d 432 (7th Cir. 2007), for the proposition that
courts construing language in the § 924(c) context, which parallels
§ 1028A(b)(2), have interpreted such language to mean that a
district court may not undercut the impact of a mandatory
consecutive sentence by reducing other portions of a defendant's
sentence. See id., 474 F.3d at 436 (reasoning that "to use the
presence of a section 924(c)(1) add-on to reduce the defendant's
sentence for the underlying crime would be inconsistent with
Congress's determination to fix a minimum sentence for using a
firearm in a crime of violence").
We find the government's argument unpersuasive and the
case law interpreting § 924(c) easily distinguishable. First,
§ 1028A and § 924(c) have significant differences. See Meade, 175
F.3d at 219 ("[P]recedent teaches that the case for construing one
statute in a manner similar to another is weakest when the two have
of violence or drug trafficking crime . . . uses or carries a
firearm." 18 U.S.C. § 924(c)(1)(A). There is evidence that 924(c)
influenced the drafting of § 1028A. See Identity Theft
Investigation and Penalties: Hearing on H.R. 1731 Before the H.
Subcomm. on Crime, Terrorism, and Homeland Security, 108th Cong.
(2003), 2004 WL 576606 at *4 [hereinafter Hearings] (statement of
Timothy Coleman, Counsel to the Assistant Attorney General) (noting
that the structure of § 1028A's penalty scheme is modeled on the
one used in 18 U.S.C. § 924(c)).
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significant differences . . ."). Specifically, § 924(c) does not
contain any provision that parallels § 1028A(b)(3), and thus no
plain text bearing directly on the question of when the mandatory
term can be taken into account by sentencing courts. Accordingly,
courts analyzing § 924(c)(1)(D)(ii), that statute's consecutive
sentence provision, were not required to reconcile their
interpretations of that provision with another statutory provision
expressly restricting sentencing courts from taking the mandatory
sentence into account when imposing a sentence for predicate
felonies only. In contrast, for us to read § 1028A(b)(2) as
barring the consideration of the statute's mandatory sentence in
imposing a sentencing on all other counts would essentially render
§ 1028A(b)(3) superfluous, as there would be no purpose in Congress
further specifying therein that this restriction applies to
predicate counts. See Carcieri, 129 S. Ct. at 1066 (stating that
a court is "obliged to give effect, if possible, to every word
Congress used" (citation omitted)); Alaska Dep't. of Envtl.
Conservation v. EPA, 540 U.S. 461, 489 n.13 (2004) (discussing the
"cardinal principle of statutory construction that a statute ought,
upon the whole, to be so construed that, if it can be prevented, no
clause, sentence, or word shall be superfluous, void, or
insignificant" (internal quotation marks & citation omitted)).
Second, those decisions reading into the language of
§ 924(c)(1)(D)(ii) a bar on considering the mandatory term in
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sentencing on other counts of conviction have only applied such a
prohibition to sentencing for predicates of the § 924(c) offense.
See, e.g., Roberson, 474 F.3d at 436 (holding that § 924(c)
mandatory sentence could not be taken into account to reduce
sentence for predicate robbery in which firearm was used);
Franklin, 499 F.3d at 586 (same). The government fails to cite,
and we are not aware of, a § 924(c) case that has prohibited
consideration of a mandatory sentence in the context of sentencing
non-predicate offenses. Thus we would read the § 924(c) line of
cases to support, at most, the presence of an implied sentencing
limitation in § 924(c) that mirrors the express sentencing
limitation in the text of § 1028A(b)(3), which applies to predicate
offenses only.
Morever, the government relies heavily on the consecutive
sentence requirement in § 1028A(b)(2) to support its claim that
Congress intended a "real" mandatory sentence, not one that is
watered down by reductions to sentences on accompanying counts of
conviction. However, we are convinced that, to the extent that the
presence of § 1028A(b)(2) in the text of the aggravated identity
theft statute provides any indication of what Congress intended
§ 1028A(b)(3) to mean, it bolsters Vidal's interpretation. This
conclusion comes by way of the expresio est exclusio alterius
canon, a doctrine of statutory construction resting on a
presumption that Congress acts carefully and deliberately in
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including terms in one part of a statute and omitting them in
another. See United States v. Councilman, 418 F.3d 67, 73 (1st
Cir. 2005) ("'[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.'" (quoting
Russello v. United States, 464 U.S. 16, 23 (1983)). Comparing the
language of § 1028A(b)(2) with the language of § 1028A(b)(3) side-
by-side, in § 1028A(b)(2) Congress specifically stated that
§ 1028A's mandatory term of imprisonment must run consecutively to
"any other term of imprisonment" imposed "under any other provision
of law." 18 U.S.C. § 1028A(b)(2) (emphasis added). In contrast,
§ 1028A(b)(3)'s bar on taking the mandatory sentence into account
is only applied with respect to sentences "for the felony during
which the means of identification was transferred, possessed, or
used." 18 U.S.C. § 1028A(b)(3). The conspicuous inclusion of the
"any other provision of law" language in § 1028A(b)(2), coupled
with its omission in § 1028A(b)(3), further demonstrates that if
Congress had intended to extend § 1028A(b)(3)'s restriction on
district courts' sentencing discretion to sentencing for offenses
under "any other provision of law," rather than for predicate
felonies only, it would have explicitly said so.8
8
See also Carcieri, 129 S. Ct. at 1066. In Carcieri the court
cited language similar to that in Councilman to conclude that where
Congress used the phrase "now or hereafter" in one part of the IRA
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The government also relies on the legislative history of
the aggravated identity theft statute to support its contention
that Congress intended the mandatory sentence under § 1028A to
apply "in addition to" the sentence for any other crime, predicate
or not. According to the House Report, § 1028A was enacted to
address Congress's concern that identity thieves under prior law
would often receive short prison sentences or be sentenced to
probation and afterwards "go on to use false identities to commit
much more serious crimes." H.R. Rep. No. 108-528, at 3 (2004),
reprinted in 2004 U.S.C.C.A.N. 779, 780. Thus, the provisions in
§ 1028A(b) were enacted to "ensure the intent of this legislation
[was] carried out." Id. at 10, 2004 U.S.C.C.A.N. at 786; see also
Godin, 534 F.3d at 62 (Lynch, C.J., concurring) (explaining that
the language of § 1028A "shows how serious Congress was about
increasing the mandatory sentence" because it "expressly cuts off
most of the mechanisms through which such a sentence could be
reduced").
Nevertheless, the legislative history cited by the
government only shows that Congress, in passing § 1028A, intended
but only "now" in the challenged provision (§ 479), the use of the
word "now" in § 479, without the accompanying phrase "or
hereafter," provided further textual support to the court's
conclusion that § 479 refers solely to events contemporaneous with
the Act's enactment. Id. It reasoned that "the statutory context
makes clear that 'now' does not mean 'now or hereafter'" and that
"[h]ad Congress intended to legislate [a contrary definition], it
could have done so explicitly, as it did in [the other provisions],
or it could have omitted the word 'now' altogether." Id.
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to enhance criminal penalties for identity theft. Our
interpretation, however, is not inconsistent with that purpose.
Congress could have reasonably chosen to enhance penalties for
identity theft by creating a mandatory sentence for its commission,
requiring that this mandatory sentence not be used to reduce the
sentence for predicate offenses, but also making a reasoned
judgment that this restriction on a sentencing court's discretion
need not extend to sentencing for unrelated crimes. In fact, after
examining the legislative history, we are convinced that this
history supports Vidal's interpretation of the statute by
demonstrating Congress's particular concern about identity theft in
the commission of predicate felonies. For example, in testimony
before the House Judiciary Committee, counsel to the Assistant
Attorney General explained:
[I]dentity theft . . . is an entirely
derivative offense, in that it is virtually
always committed in connection with some other
crime. The Sentencing Guidelines, however, are
generally designed and intended to be . . .
charge-neutral: . . . in other words, the
sentence depends on the underlying . . .
relevant conduct . . . and not on the
particular offense charged in the indictment.
Thus, the Guidelines will generally ignore the
fact that two offenses have been charged (a
derivative offense and a predicate offense);
the same sentence would be imposed in such a
case as would be imposed even if only the
predicate offense had been charged.
Consequently, application of the Guidelines
would mean that there would be virtually no
practical advantage to charging the derivative
criminal offense. Prosecutors would have to
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charge more facts, and prove more facts,
without obtaining any additional punishment.
H.R. 1731 avoids this problem through the
structure of its penalty scheme . . .
Accordingly, H.R. 1731 provides that, if a
person commits aggravated identity theft by
stealing someone's identity in order to commit
a serious federal predicate offense, that
person will be sentenced to an additional two
years imprisonment over and above the sentence
for the underlying offense.
Hearings, supra n.6 at *4-5 (statement of Timothy Coleman, Counsel
to the Assistant Attorney General) (emphasis added); see id.
(noting that "virtually all of the most serious forms of identity
theft involve predicate criminal activity"); see also H.R. Rep. No.
108-528, at 10, 2004 U.S.C.C.A.N. at 785 (explaining that the bill
amends Title 18 so as to provide for a "mandatory consecutive
penalty enhancement of 2 years for any individual who knowingly
transfers . . . the means of identification of another person in
order to commit a serious Federal predicate offense" (emphasis
added)); id. (explaining that "[t]his 2-year enhancement is in
addition to any term of imprisonment for the underlying offense."
(emphasis added)). This testimony reveals that a major concern of
§ 1028A(b)(3)'s drafters was to ensure, by making the sentences
truly cumulative, that prosecutors had an incentive to charge both
the aggravated identity theft violation and the underlying
predicate felony or felonies. While we reiterate that we are not
required to consider these policy concerns, given that we find that
the statute "speaks for itself," Carcieri, 129 S. Ct. at 1066, we
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nevertheless note that under our reading of the statute, the
government certainly retains the incentive to charge underlying
felonies, and it is as a result of its unexplained failure to do so
that the present appeal arose.9 This concern with charging
incentives, however, is not implicated where other counts charged
in the same indictment are unrelated offenses, for which the
incentive to separately charge already exists. Therefore, while
our holding ultimately rests on the plain text of the statute
rather than its legislative history, we nevertheless find it
telling that the legislative history of § 1028A is consistent with
its text. Specifically, the legislative history demonstrates that
the express distinction drawn by Congress between predicate and
non-predicate offenses in the plain text of § 1028A(b)(3) was
likely no accident, but rather, an intentional act grounded in a
logical basis.
9
These facts raise the question of whether the government may
permissibly charge aggravated identity theft under § 1028A without
also charging a predicate felony. Our sister circuits have held in
the context of 18 U.S.C. § 924(c) that that statute "does not
require that a defendant be convicted of, or even charged with, the
predicate offense to be found guilty of using or carrying a firearm
in relation to the predicate offense." See, e.g., United States v.
Frye, 402 F.3d 1123, 1127 (11th Cir. 2005). However, we find no
precedent on this issue in the § 1028A context. Given the parallel
language of these two statutes (for text of § 924(c), see supra
n.7) we will assume, without deciding, that § 1028A is subject to
a comparable interpretation. Nevertheless, because Vidal does not
challenge the government's failure to charge the predicate felonies
in this case, we see no reason to decide this question sua sponte.
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In its final contention, the government argues that
Vidal's reading of § 1028A runs contrary to the Sentencing
Guidelines, which, in the section governing sentencing on multiple
counts of conviction, state that where a defendant is convicted of
an offense subject to a mandatory consecutive sentence, that
portion of the sentence "shall be determined by that statute and
imposed independently." U.S.S.G. § 5G1.2(a) (emphasis added).10
The government interprets the word "independently" as requiring a
district court to arrive at the appropriate sentence for other
counts of conviction without taking into consideration the
mandatory sentence for the counts subject to it. Vidal counters
that the provision does not support the government's argument
because it merely states that the mandatory minimum should be
determined "separately" from the GSR on other counts; not that the
ultimate sentence imposed on other counts cannot take the mandatory
minimum into consideration. We agree.
A better reading of this provision -- one that is
supported by case law -- would be that in requiring that a
mandatory consecutive sentence be determined "independently," this
provision merely specifies that the sentence for counts subject to
a mandatory consecutive sentence should be calculated separately
10
U.S.S.G. § 5G1.2(a) states, that "the sentence to be imposed on
a count for which the statute (1) specifies a term of imprisonment
to be imposed; and (2) requires that such term of imprisonment be
imposed to run consecutively to any other term of imprisonment,
shall be determined by that statute and imposed independently."
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from the GSR on other counts. In other words, those counts
involving mandatory sentences should be excluded from the grouping
procedures that would otherwise apply under the guidelines to
compute a GSR for multiple counts of conviction. See, e.g., United
States v. A.B., 529 F.3d 1275, 1276 n.1 (10th Cir. 2008). Vidal,
however, does not contend that the aggravated identity theft count
ought to have been grouped with his other counts of conviction to
determine his GSR. Rather, he argues that after separately
computing the GSR for Counts One through Three, the court had the
authority to take the mandatory term for Count Four into account in
choosing to downwardly vary from the GSR when determining a
sentence for the other Counts. This guideline provision, which, in
any event is merely advisory after Booker, does not detract from
his position.
III. Conclusion
We thus conclude that a district court, in sentencing a
defendant on a 18 U.S.C. § 1028A aggravated identity theft
conviction, is not precluded from taking § 1028A's mandatory
sentence into account in sentencing a defendant on other counts of
conviction charged in the same indictment that are not predicate
felonies underlying the § 1028A conviction. We find that this
interpretation is the only one consistent with the text of the
statute as written, and thus, the only one to which a criminal
defendant ought fairly be submitted. Because the sentencing court
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erroneously concluded that it lacked the authority to credit
Vidal's proposal to do exactly this, we vacate and remand for re-
sentencing. See United States v. Rivera, 994 F.2d 942, 953 (1st
Cir. 1993) (citing United States v. Castiello, 915 F.2d 1, 5-6 (1st
Cir. 1990) for the proposition that a "new proceeding [is] needed
where [the] district court wrongly thought it lacked legal power to
depart [from sentencing guidelines], but not where it simply chose
not to exercise this authority").
Reversed and Remanded.
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