United States v. Chibuko, No. 12-0039-cr (2d Cir. Mar. 7, 2014) (Katzmann, Kearse, and Wesley) (per curiam), available here
This published decision offers guidance on the procedures to be followed before a district court may impose consecutive sentences for multiple counts of aggravated identity theft, 18 U.S.C. 1028A.
Chibuko was convicted at trial of various fraud crimes, including three counts of aggravated identity theft, 18 U.S.C. 1028A. A 1028A violation carries a mandatory two-year prison sentence, to run consecutively to any other sentence imposed. But sentences imposed for multiple 1028A violations may run concurrently with each other.
Here, two of the defendant’s three 1028A violations were part of the same scheme and involved the same victim. The Guidelines provide that, in that situation, the sentences on those two counts should generally run concurrently with each other when, as here, the underlying offenses are “groupable” under USSG 3D1.2. But the district court sentenced Chibuko to consecutive terms on the three 1028A counts, without mentioning the general rule or “groupability.”
Under these circumstances, the Circuit held that the district court committed plain error by failing to explain its departure from the general rule that the 1028A sentences should run concurrently with each other when the underlying crimes are grouped.
The Court remanded for supplementation of the record with appropriate findings and explanations, or alternatively, for re-sentencing.
Commentary: If you have a case involving multiple counts of aggravated identity theft, this opinion is essential reading.