United States v. Karen Dooley , 688 F.3d 318 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2256
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K AREN D. D OOLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 11-20010—Michael P. McCuskey, Judge.
A RGUED JUNE 6, 2012—D ECIDED JULY 27, 2012
Before E ASTERBROOK, Chief Judge, and W OOD and
S YKES, Circuit Judges.
E ASTERBROOK, Chief Judge. Karen Dooley lied about her
marriage status and income in order to obtain Social
Security benefits and food stamps to which she was not
entitled. While employed at a hospital, she stole credit
cards and identifying documents from approximately
100 patients, then made purchases on the accounts of
these vulnerable (often helpless) people. She also used
2 No. 11-2256
those credentials to obtain additional credit cards and
Social Security numbers in spurious names, then used
those documents to defraud additional persons. The
scheme of identity theft and related crimes was long-
running, and her crimes continued even while she was
on pretrial release after being indicted. Eventually she
pleaded guilty to nine counts covering multiple offenses.
Three of the counts charged aggravated identity theft,
in violation of 18 U.S.C. §1028A; the remaining six
charged other varieties of fraud.
Section 1028A has an unusual penalty provision.
Every conviction under that statute is punished by
exactly two years in prison. 18 U.S.C. §1028A(a)(1). Such
determinate sentences were common when this Nation
was founded. See John H. Langbein, The English Criminal
Trial Jury on the Eve of the French Revolution, in The Trial
Jury in England, France, Germany 1700–1900 at 36–37
(A. Schioppa ed. 1987). They are unusual today. Legisla-
tures sometimes provide minimum terms, but they
rarely make the minimum and the maximum identical.
Section 1028A not only calls for a specific sentence but
also provides that every sentence for aggravated
identity theft must run consecutively to every sentence
for a different crime—though sentences for multiple
aggravated-identity-theft convictions may run concur-
rently with each other. Compare §1028A(b)(2) with
§1028A(b)(4). Thus once the district judge determined
the sentences for Dooley’s six convictions other than
under §1028A, he had to add at least 24 months (by
making the §1028A sentences concurrent with each
other but consecutive to all other sentences) and was
No. 11-2256 3
entitled to add 72 months (by making the §1028A sen-
tences consecutive to each other as well as to the other
six sentences). It also would have been possible to add
48 months, by choosing to make one §1028A conviction
run concurrently with the other two.
Although §1028A gave the district judge three op-
tions—24, 48, or 72 months on top of the sentences for
Dooley’s six other crimes—it does not offer any guidance
about which option to choose, beyond directing that
“discretion shall be exercised in accordance with any
applicable guidelines and policy statements issued by
the Sentencing Commission.” 18 U.S.C. §1028A(b)(4). The
Sentencing Guidelines in turn specify three things dis-
trict judges should consider.
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 nonexhaustive list of fac-
tors:
(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 un-
derlying 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
4 No. 11-2256
Related Counts). Generally, multiple counts
of 18 U.S.C. §1028A should run concurrently
with one another in cases in which the un-
derlying 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 Application Note 2(B). That these factors
are vague does not mean that the Guidelines as a whole
are useless, however. The exercise of discretion always
begins by determining the Commission’s recom-
mendation, which helps judges reach reasonable sen-
tences and avoid unjustified disparities. See Gall v.
United States, 552 U.S. 38, 49 (2007).
The presentence report in this case calculated the
range by starting with the six convictions on counts
other than §1028A. The author concluded that the range
on these six counts is 18 to 24 months (offense level 13,
criminal history category III). The report did not attempt
to determine a final range including the §1028A con-
victions. The range for a §1028A count, standing alone,
is “the term of imprisonment required by statute.”
U.S.S.G. §2B1.6(a). This provision adds that Chapter Three
of the Guidelines Manual does not apply, and it is
Chapter Three that specifies how different convictions
combine to create a final range. Thus for convictions
under §1028A, as for other statutes that create minimum
sentences, any mandatory term comes on top of a sen-
No. 11-2256 5
tence computed independently for the other offenses.
See U.S.S.G. §5G1.2(a); United States v. Roberson, 474 F.3d
432, 436 (7th Cir. 2007).
This throws us back to the question: what sentence
is “required by statute” under §1028A? That is the
amount of time that a judge must add both under the
language of §2B1.6(a) and the approach of United States
v. Booker, 543 U.S. 220 (2005), and its successors, that
the Guidelines are advisory while statutory rules are
mandatory. Section 1028A(b)(4) itself tells us that the
choice between consecutive and concurrent sentences
depends on the Sentencing Commission’s policy state-
ments. The policy statement in §5G1.2 Application
Note 2(B) points to 18 U.S.C. §3553(a)(2) and adds some
considerations. For §1028A, therefore, the Guidelines
Manual and the United States Code come to the same
thing. (Section 1028A also directs sentencing judges
to follow the Guidelines, but as §2B1.6(a) refers back to
§1028A this aspect of the requirement is circular.)
At sentencing, the judge spent a good deal of time
comparing Dooley’s situation with that of Garjon Collins,
who received 108 months’ imprisonment after being
convicted of 11 counts under §1028A and 11 counts
under other federal anti-fraud statutes. See United States
v. Collins, 640 F.3d 265 (7th Cir. 2011). This court held
that Collins’s sentence was reasonable, and the district
judge here concluded that a slightly lower sentence
would be reasonable for Dooley. Comparing Dooley’s
circumstances with Collins’s was an admirable attempt
to reduce unwarranted disparity in sentencing. See 18
6 No. 11-2256
U.S.C. §3553(a)(6). But district judges are not supposed
to start with §3553(a); the Supreme Court held in Gall
and Rita v. United States, 551 U.S. 338, 347–48 (2007),
that they must start with a correct understanding of
the Sentencing Commission’s advice. That means the
considerations set out in §5G1.2 Application Note 2(B),
which the judge never mentioned.
Dooley’s lawyer in the district court did not remind
the judge about the role Note 2(B) plays in choosing
between concurrent and consecutive sentences. That
makes the judge’s omission understandable. But given
§1028A(b)(4), which makes consideration of Note 2(B)
essential to the statutory process, plain error has oc-
curred—as the prosecutor has conceded. (Perhaps the
district judge privately considered Note 2(B), but he did
not say so or address all of its considerations. That’s why
we find plain error.)
The error affects substantial rights; an extra 48 months
in prison is “substantial” by any measure. It is harder
to know whether the discretionary aspect of plain-error
doctrine supports resentencing. Even a plain error
should be corrected only when it “seriously affect[s] the
fairness, integrity or public reputation of judicial pro-
ceedings.” United States v. Olano, 507 U.S. 725, 732 (1993)
(citation and internal quotation marks omitted). A 96-
month sentence for Dooley’s despicable conduct would
not adversely affect the fairness, integrity, or public
reputation of judicial proceedings. Thoughtful people
might well deem her sentence too low. But the United
States does not ask us to exercise discretion against
Dooley under this aspect of plain-error review.
No. 11-2256 7
Dooley therefore is entitled to be resentenced. After
considering Application Note 2(B) and the factors in
§3553(a), the district court may conclude that consecu-
tive sentences are appropriate, and under Rita and
Gall appellate review of such a decision would be defer-
ential.
The judgment is vacated, and the case is remanded
for resentencing.
7-27-12