FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 4, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 17-2135 (D.C. No. 1:16-CR-02682-JAP-1) JEREMY LARA, (D.N.M.)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, MURPHY, and MORITZ, Circuit Judges. _________________________________
Jeremy Lara pleaded guilty to aggravated identify theft, bank fraud, possession
of a counterfeit postal key, and mail theft. The district court imposed a controlling
30-month prison sentence. The government appeals, arguing the district court
violated 18 U.S.C. § 1028A(b)(3) by considering Lara’s mandatory two-year
sentence for aggravated identify theft in determining the appropriate sentences for
Lara’s bank-fraud offenses. We agree: although the district court was free to consider
the two-year sentence in determining Lara’s sentences for possession of a counterfeit
* This order and judgment isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. postal key and mail theft, the district court violated § 1028A(b)(3) by considering the
two-year sentence in determining Lara’s sentences for bank fraud. Accordingly, we
vacate Lara’s sentence and remand for resentencing.
Background
Lara pleaded guilty to three counts of bank fraud (counts 1–3), see id. § 1344;
three counts of aggravated identify theft (counts 4–6), see id. § 1028A; two counts of
possession of a counterfeit postal key (counts 7 and 9), see id. § 1704; and two counts
of mail theft (counts 8 and 10), see id. § 1708.
In his sentencing memorandum, Lara asked the district court to impose a total
prison sentence of 24 months. More specifically, he asked the district court to impose
the mandatory two-year prison sentence for each of the three counts of aggravated
identify theft, see § 1028A(a)(1), and to “suspend the sentences” on the remaining
counts of conviction, R. vol. 1, 39. In support, Lara asserted that § 1028A(a)(1)’s
two-year sentence was “sufficient” and that “any further incarceration would be
greater than necessary to achieve the goals of sentencing.” R. vol. 1, 39.
The government objected to Lara’s request. First, it pointed out that
§ 1028A—which prohibits “knowingly transfer[ring], possess[ing], or us[ing],
without lawful authority” another person’s “means of identification” “during and in
relation to” certain enumerated felonies, including bank fraud—requires a sentencing
court to impose a mandatory two-year sentence “in addition to the punishment
provided for” the underlying enumerated felony. § 1028A(a)(1) (emphasis added);
see also § 1028A(c)(5). Second, the government argued that § 1028A expressly
2 prohibited the district court from “reduc[ing] the term to be imposed for” that
underlying enumerated felony “as to compensate for, or otherwise take into account,”
§ 1028A(a)(1)’s mandatory two-year sentence. § 1028A(b)(3). And according to the
government, this was precisely what Lara asked the district court to do when he
argued that the mandatory two-year sentence for aggravated identify theft “would be
‘sufficient,’ and that any further sentences would be ‘greater than necessary to
achieve the goals of sentencing.’” R. vol. 1, 41 (quoting id. at 39).
At the sentencing hearing, Lara denied that he was asking the district court to
take § 1028A(a)(1)’s mandatory two-year sentence for aggravated identity theft into
account in determining the appropriate sentences for his other offenses. Instead, Lara
asserted, he was merely arguing that a 24-month sentence would be “fair, just[,] and
reasonable” under “the totality of the circumstances of his case.” R. vol. 3, 93.
In response, the district court initially proposed a sentence of a year and a day
on counts 1–3 (bank fraud) and 7–10 (possession of a counterfeit postal key and mail
theft), but then changed course and determined that a six-month prison sentence on
“each of those counts” was “sufficient but not greater than necessary to satisfy the
requirements of” 18 U.S.C. § 3553(a).1 R. vol. 3, 97; see also § 3553(a) (requiring
court to consider whether sentence imposed, e.g., “afford[s] adequate deterrence” and
1 The parties appear to agree that the district court’s initial proposal was an attempt to ensure Lara would receive credit for “good time,” thus “effectively reducing [his] sentence.” Aplee. Br. 14; see also 18 U.S.C. § 3624(b)(1) (explaining that prisoner serving sentence of “more than 1 year” can “receive credit toward the service of the prisoner’s sentence” by “display[ing] exemplary compliance with institutional disciplinary regulations”). 3 “reflect[s] the seriousness of the offense”). The district court clarified that the six-
month sentences for each of counts 1–3 (bank fraud) and 7–10 (possession of a
counterfeit postal key and mail theft) would run concurrently to one another but
consecutively to the three concurrent mandatory two-year sentences the court
imposed on counts 4–6 (aggravated identify theft), for a total 30-month prison
sentence. The district court explained that it based its decision on (1) “the fact that
the offenses . . . did not involve weapons or violence”; (2) “the fact that” Lara would
“be required to spend an additional two years beyond the six months” in prison;
(3) the fact that Lara would also serve “a three-year term of supervised release”; and
(4) the district court’s conclusion that 30 months in prison plus three years of
supervised release would “provide adequate protection of the public and address the
seriousness of the offense and result in just punishment.” R. vol. 3, 97.
The government “object[ed] to the court’s consideration” of the mandatory
two-year sentence that the court imposed on counts 4–6 (aggravated identify theft)
“in imposing [a] six-month sentence” for each of the remaining counts. Id. at 101–02.
The district court did not rule on the government’s objection. The government now
appeals.
Analysis
On appeal, the government argues that the district court violated
§ 1028A(b)(3) by taking into account § 1028A(a)(1)’s mandatory two-year prison
sentence in determining the appropriate sentences for Lara’s bank-fraud convictions.
Lara doesn’t dispute that the district court was precluded from considering
4 § 1028A(a)(1)’s mandatory two-year term in determining the appropriate sentences
for his bank-fraud convictions. But he argues the district court was free to take the
mandatory two-year term into consideration in determining the appropriate sentences
for his other convictions, i.e., possession of a counterfeit postal key and mail theft.
And according to Lara, that’s all the district court did here. The government
disagrees. It argues that even assuming the district court could consider
§ 1028A(a)(1)’s mandatory two-year term in crafting Lara’s sentences for possession
of a counterfeit postal key and mail theft, the district court also considered
§ 1028A(a)(1)’s mandatory two-year term in crafting Lara’s sentences for bank
fraud—and erred in doing so. For the reasons discussed below, we agree with the
government.
At the outset, we have no trouble concluding that § 1028A(b)(3) prohibited the
district court from taking § 1028A(a)(1)’s mandatory two-year sentence for
aggravated identify theft into account in determining the appropriate sentences for
Lara’s bank-fraud convictions. In relevant part, § 1028A 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.
....
(b) Consecutive sentence.--Notwithstanding any other provision of law--
5 ...
(2) . . . no term of imprisonment imposed on a person under this section shall run concurrently with any other term of imprisonment imposed on the person under any other provision of law, including any term of imprisonment imposed for the felony during which the means of identification was transferred, possessed, or used;
(3) in 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 . . . .
§ 1028A(a)–(b). Finally, § 1028A lists bank fraud as a “felony violation enumerated
in subsection (c).” § 1028A(c)(5) (quoting § 1028A(a)(1)).
Thus, in relevant part, the statute (1) prohibits “knowingly transfer[ring],
possess[ing], or us[ing], without lawful authority” another person’s “means of
identification” “during and in relation to” the predicate felonies listed in
§ 1028A(c)—including bank fraud, see § 1028A(c)(5)—and then (2) clearly and
unequivocally states that “in determining any term of imprisonment to be imposed for
[bank fraud], a court shall not in any way reduce the term to be imposed for [bank
fraud] so as to compensate for, or otherwise take into account” § 1028A(a)(1)’s two-
year sentence for aggravated identify theft, § 1028A(b)(3). Accordingly, under the
plain language of § 1028A, the district court was precluded from considering
§ 1028A(a)(1)’s mandatory two-year sentence for aggravated identify theft in
crafting Lara’s sentences for bank fraud. See St. Charles Inv. Co. v. Comm’r, 232
6 F.3d 773, 776 (10th Cir. 2000) (“As in all cases requiring statutory construction, ‘we
begin with the plain language of the law.’” (quoting United States v. Morgan, 922
F.2d 1495, 1496 (10th Cir. 1991))).
In fact, § 1028A(b)(3)’s plain language is so clear on this point that both the
Supreme Court and this court have cited that language as an example of Congress’
ability to unambiguously preclude district courts from considering a defendant’s
sentence for one conviction when imposing a sentence on another conviction. See
Dean v. United States, 137 S. Ct. 1170, 1174, 1177–78 (2017) (analyzing 18 U.S.C.
§ 924(c), which makes it “a separate offense to use or possess a firearm in connection
with a violent or drug trafficking crime”; rejecting government’s argument that
district court couldn’t consider § 924(c)’s mandatory-minimum sentence in
calculating appropriate sentence for predicate offense; and citing § 1028A(b)(3) as
proof that Congress knows how to explicitly prohibit such consideration when it
chooses to); United States v. Smith, 756 F.3d 1179, 1185–87 (10th Cir. 2014) (same).
Indeed, we indicated in Smith that § 1028A(b)(3)’s plain language “does”
precisely “what it says”: it “prevent[s] a sentencing court from taking account of
§ 1028A[(a)(1)]’s mandatory minimum[] when considering a sentence for predicate
offenses” such as bank fraud. 756 F.3d at 1186 n.2. And we noted in Smith that our
sister circuits have reached the same conclusion. See id.; United States v. Wahid, 614
F.3d 1009, 1014 (9th Cir. 2010) (“The statutory language is clear”: “a district court
may not reduce the sentence of a predicate felony to compensate for the mandatory
two-year consecutive term . . . .”); United States v. Vidal-Reyes, 562 F.3d 43, 50 (1st
7 Cir. 2009) (stating that § 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”); United States v. Guillen-Esquivel, 534 F.3d 817, 819 (8th Cir. 2008)
(“Section 1028A(b)(3) prohibited the district court from ‘in any way reduc[ing] the
term to be imposed for [document trafficking] so as to compensate for, or otherwise
take into account, any separate term of imprisonment imposed or to be imposed for
[aggravated identify theft].’” (alterations in original) (quoting § 1028A(b)(3))). Thus,
we hold that § 1028A(b)(3) prohibited the district court from considering
§ 1028A(a)(1)’s two-year sentence for aggravated identify theft in crafting Lara’s
sentences for bank fraud.
But this conclusion doesn’t necessarily entitle the government to reversal. So
far, the government has proved its major premise. That is, the government has
established that if the district court took into account § 1028A(a)(1)’s mandatory two-
year term in determining the appropriate sentences for Lara’s bank-fraud convictions,
then the district court erred. Yet to prevail on appeal, the government must also prove
its minor premise: it must establish that the district court did, in fact, consider
§ 1028A(a)(1)’s mandatory two-year term in determining the appropriate sentences
for Lara’s bank-fraud convictions. And according to Lara, the government can’t make
that showing.
8 Lara doesn’t dispute that the district court considered § 1028A(a)(1)’s
mandatory two-year term in crafting the rest of his sentence. Nor could Lara credibly
do so; in calculating that sentence, the district court explicitly relied on the
“additional two years” Lara will spend in prison under § 1028A(a)(1). R. vol. 3, 97.
Instead, Lara advances a more specific argument: he insists that although the district
court couldn’t take the mandatory two-year sentence into account in determining the
appropriate sentence for Lara’s bank-fraud convictions, the district court remained
free to take that two-year sentence into account for purposes of determining the
appropriate sentences for Lara’s other crimes—i.e., possession of a counterfeit postal
key and mail theft.
In support, Lara first notes that these other offenses aren’t enumerated felonies
under § 1028A(c). Second, he points out that (1) § 1028A prohibits “knowingly
transfer[ring], possesses[ing], or use[ing], without lawful authority” another person’s
“means of identification” “during and in relation to any felony violation enumerated
in [§ 1028A(c)]”; and (2) § 1028A only prohibits consideration of § 1028A(a)(1)’s
two-year term “in determining any term of imprisonment to be imposed for the
felony during which the means of identification was transferred, possessed, or used.”
§ 1028A(a)(1), (b)(3) (emphasis added). Thus, he concludes, the plain language of
the statute indicates that § 1028A(b)(3)’s prohibition on considering § 1028A(a)(1)’s
two-year sentence extends only to § 1028A(c)’s enumerated felonies.
Moreover, Lara asserts, this conclusion finds further support in the distinction
between the language of § 1028A(b)(3) and the language of § 1028A(b)(2). Section
9 1028A(b)(3) prohibits consideration of § 1028A(a)(1)’s two-year term “in
determining any term of imprisonment to be imposed for the felony during which the
means of identification was transferred, possessed, or used.” Section 1028A(b)(2), on
the other hand, states that “no term of imprisonment imposed on a person under
[§ 1028A(a)(1)] shall run concurrently with any other term of imprisonment imposed
on the person under any other provision of law, including any term of imprisonment
imposed for the felony during which the means of identification was transferred,
possessed, or used.” § 1028A(b)(2) (emphasis added).
As Lara points out, “[t]he conspicuous inclusion of the ‘any other provision of
law’ language in § 1028A(b)(2), coupled with its omission in § 1028A(b)(3)”
illustrates “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.” Vidal-Reyes, 562 F.3d at 53; see also Wahid, 614 F.3d at 1014 (relying on
distinction between § 1028A(b)(2) and § 1028A(b)(3) to conclude that although “a
district court may not reduce the sentence of a predicate felony to compensate for the
mandatory two-year consecutive term, it may exercise its discretion to reduce a
sentence for a non-predicate felony”); Vidal-Reyes, 562 F.3d at 56 (“We thus
conclude that a district court, in sentencing a defendant on a[n] . . . 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.”).
10 Thus, based on the plain language of the statute and the line of reasoning our sister
circuits employed in Vidal-Reyes and Wahid, we agree with Lara that the district
court remained free to consider § 1028A(a)(1)’s mandatory two-year term in crafting
his sentences for possession of a counterfeit postal key and mail theft because those
offenses are not enumerated felonies under § 1028A(c).
But our conclusion that the district court could consider § 1028A(a)(1)’s
mandatory two-year term in crafting Lara’s sentences for possession of a counterfeit
postal key and mail theft is—just like our conclusion that the district court couldn’t
consider § 1028A(a)(1)’s mandatory two-year term in determining Lara’s sentence
for bank fraud—merely an intermediate one. To resolve this appeal, we must answer
the question that arises where these two intermediate conclusions intersect: Did the
district court merely consider § 1028A(a)(1)’s mandatory two-year term in crafting
Lara’s sentences for possession of a counterfeit postal key and mail theft, or did it
also take § 1028A(a)(1)’s mandatory two-year term into account in crafting his
sentence for bank fraud?
We conclude it did the latter. In sentencing Lara on “[c]ounts 1 through 3 and
[c]ounts 7 through 10,” the district court concluded that for “each of those counts,” a
six-month sentence was appropriate.2 R. vol. 3, 97 (emphasis added). And it then
explained that it “base[d]” this conclusion, in part, “on . . . the fact that [Lara] will be
required to spend an additional two years” in prison under § 1028A(a)(1). Id.
2 Recall that counts 1–3 of the indictment charged Lara with bank fraud, while counts 7–10 charged him with possession of a counterfeit postal key and mail theft. 11 Lara argues that the district court’s statement was “ambiguous” and that we
should therefore interpret the statement in a manner that is “consistent with” both the
law and our presumption that the district court was aware of and properly applied it.
Aplee. Br. 24 (quoting United States v. Cataldo, 171 F.3d 1316, 1319 n.6 (11th Cir.
1999)); see also United States v. Russell, 109 F.3d 1503, 1512–13 (10th Cir. 1997)
(“The Supreme Court has held that ‘[t]rial judges are presumed to know the law and
to apply it in making their decisions.’” (alteration in original) (quoting Walton v.
Arizona, 497 U.S. 639, 653 (1990), overruled on other grounds by Ring v. Arizona,
536 U.S. 584 (2002))).
We cannot agree. The district court explicitly stated that it took
§ 1028A(a)(1)’s mandatory two-year prison sentence for aggravated identity theft
into account in determining the appropriate sentence for Lara’s other convictions. It
sentenced Lara to concurrent six-month sentences for “each” of these other
convictions. R. vol. 3, 97 (emphasis added). And then—without differentiating
between Lara’s convictions for bank fraud and his convictions for possession of a
counterfeit postal key and mail theft—it explained that “the fact that [Lara] will be
required to spend an additional two years beyond the six months as to those seven
counts” informed its decision to sentence Lara to six months in prison for those
counts. Id. (emphasis added). These statements necessarily and unambiguously
encompassed Lara’s convictions for bank fraud. Cf. Cataldo, 171 F.3d at 1319 n.6
(explaining that district courts’ “ambiguous oral statements, if possible, are
12 interpreted to be consistent with (and not inconsistent with) the law” (emphasis
added)).
Moreover, the district court had every opportunity to clarify that its
consideration of § 1028A(a)(1)’s mandatory two-year sentence was confined solely
to Lara’s sentences for possession of a counterfeit postal key and mail theft.3 But the
district court didn’t avail itself of that opportunity. Accordingly, we accept its
unambiguous statements at face value and conclude that the district court indeed
considered § 1028A(a)(1)’s mandatory two-year sentence in determining the
appropriate sentences for “each” of Lara’s other crimes—including bank fraud. R.
vol. 3, 97. Because the district court erred in doing so, we vacate Lara’s sentence and
remand for resentencing.
Entered for the Court
Nancy L. Moritz Circuit Judge
3 After the district court pronounced Lara’s sentence, the government objected to the district court’s “consideration of [the] 24-month sentence,” which, the government pointed out, the court “explicitly [considered] in imposing the six-month sentence[s].” R. vol. 3, 102. 13