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Short Wins – The Aggravated Identity Theft, 18 U.S.C. § 1028A, and Stacking Edition

Aggravated identity theft – charged under 1028A – seems like it’s getting more and more popular among federal prosecutors. It does come with massive leverage in plea negotiations; a conviction for a violation of 18 U.S.C. § 1028A carries a mandatory 2 years in prison, consecutive to any other count of conviction. I’m starting to see these in cases beyond the garden variety identity fraud gift card cases – like tax and health care fraud.

The statute says that for subsequent 1028A convictions, a district court has discretion whether to stack them. And United States v. Chibuko addresses exactly that issue and the importance of reading a statute.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Chibuko, Second Circuit: Appellant was convicted of various fraud crimes, including three counts of aggravated identity theft under 18 U.S.C. § 1028A. Although sentences under § 1028A usually carry a two-year sentence, each to run consecutive to each other, Appellant’s charges are part of the same scheme involving the same victim. Because the district court did not appreciate its ability to have those sentences run concurrently, the case is remanded for resentencing.

2. United States v. Taylor, Second Circuit: Appellants’ convictions for robbery of a pharmacy were vacated. Statements from Taylor were used during trial against all appellants, but those statements were found to be involuntary because Taylor had ingested a large number of pills as he was arrested. Admitting those statements against each of the Appellants was not harmless error, so their convictions were vacated and the cases remanded for new trials.

Defense Attorneys: Kelley J. Sharkey, Jillian S. Harington, and Colleen P. Cassidy
3. United States v. Strayhorn, Fourth Circuit: Appellants were convicted on a number of robbery charges. On appeal, the Fourth Circuit held that a partial fingerprint found on duct tape was insufficient evidence to convict Janson Strayhorn of robbery. The court also held that Jimmy Strayhorn’s sentence must be vacated because the district court failed to instruct the jurors, for the brandishing charge, that they needed to find Jimmy Strayhorn had brandished a gun.

Defense Attorneys: James B. Craven III and Tony E. Rollman,

4. United States v. Debenedetto, Seventh Circuit: After being arrested, Appellant was found mentally incompetent and was committed for further evaluation, including an order for involuntary treatment with psychotropic medications. The Seventh Circuit vacated the commitment order because the hearing and written findings of the district court failed to comply with Sell v. United States by not considering less intrusive measures.

5. United States v. Poulin, Seventh Circuit: Appellant pled guilty and received 115 months’ imprisonment for possession of child pornography. The sentence was vacated and remanded because the court made not harmless procedural errors, imposing both a sentence and special conditions without providing adequate reasons.

6. United States v. Woodard, Seventh Circuit: Appellant was charged with health care fraud and sentenced to 80 months’ imprisonment after pleading guilty. This sentence violated the ex post facto clause because she was sentenced under the wrong version of the sentencing guidelines.

7. United States v. Burrage, Eighth Circuit: On remand from the Supreme Court, the Eighth Circuit reversed Appellant’s conviction of distribution of heroin resulting in death. The jury instruction was improper because it did not require the jury to find that the heroin was the proximate cause of the death.

8. Clabourne v. Ryan, Ninth Circuit: The district court denied Appellant’s habeas corpus petition which claimed ineffective assistance of counsel at resentencing. The Ninth Circuit issued a certificate of appealability and vacated the denial of relief because there was potential merit to the claim that counsel was ineffective for failing to object to the sentencing court’s consideration of a 1982 confession.

Defense Attorney: S. Jonathan Young
9. United States v. Tanke, Ninth Circuit: The Ninth Circuit held that it was plain error to include restitution amounts that were not part of the offenses of conviction and therefore vacated and remanded for resentencing.

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