U.S. v. Bonilla, No. 08-12127.

• Decision Date: 18 August 2009
• Docket Number: No. 08-12127.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mario Alberto Simbaqueba BONILLA, a.k.a. Mario Simbaqueba, a.k.a. Mario Gaona, a.k.a. Mario S. Bonilla, a.k.a. Alberto Gaona, a.k.a. Mario Simba, a.k.a. Mario Simbaqueba Bonilla, a.k.a. Mario Bsimbaqueba, a.k.a. Mario Csimbaqueba, a.k.a. Mario Psimbaqueba, a.k.a. Mario Bonilla Simbaqueba, a.k.a. Mario Ssimbaqueba, a.k.a. Mario Alberto Simbaqueba, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

579 F.3d 1233

UNITED STATES of America, Plaintiff-Appellee, v. Mario Alberto Simbaqueba BONILLA, a.k.a. Mario Simbaqueba, a.k.a. Mario Gaona, a.k.a. Mario S. Bonilla, a.k.a. Alberto Gaona, a.k.a. Mario Simba, a.k.a. Mario Simbaqueba Bonilla, a.k.a. Mario Bsimbaqueba, a.k.a. Mario Csimbaqueba, a.k.a. Mario Psimbaqueba, a.k.a. Mario Bonilla Simbaqueba, a.k.a. Mario Ssimbaqueba, a.k.a. Mario Alberto Simbaqueba, Defendant-Appellant.

No. 08-12127.

United States Court of Appeals, Eleventh Circuit.

August 18, 2009.

Benson B. Weintraub, Law Offices of Benson Weintraub, Miami, FL, Robert David Malove, Robert David Malove, P.A., Ft. Lauderdale, FL, for Defendant-Appellant.

Carol E. Herman, Anne R. Schultz and Jeanne Marie Mullenhoff, Asst. U.S. Attys., Miami, FL, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before BARKETT and FAY, Circuit Judges, and TRAGER,^* District Judge.

FAY, Circuit Judge:

Mario Alberto Simbaqueba-Bonilla ("Bonilla") appeals the district court's imposition of a 108 month sentence. Bonilla pled guilty to 16 counts of conspiracy, access device fraud, identity theft, and aggravated identity theft. On appeal, Bonilla asserts that his plea was constitutionally invalid and that the subsequent sentence imposed was unreasonable and therefore should be vacated.

Specifically, Bonilla asserts that (i) the plea is invalid because the court failed to advise him of the consequences of his plea; (ii) the indictment was multiplicitous and violates the double jeopardy clause of the Constitution; (iii) the court failed to make a finding of a multi-object conspiracy; (iv) the court improperly determined the amount of loss; (v) the court erred by imposing multiple consecutive sentences; and (vi) the court's pronouncement of the sentence was ambiguous and varied materially from the order of judgment.

We reverse only on the second issue and affirm as to all other claims. We hold that the indictment is multiplicitous and violative of the double jeopardy clause. We therefore vacate the convictions and sentences for the four counts of identity theft and modify the judgment accordingly.

I. BACKGROUND

From approximately June 9, 2004 through August 31, 2007 Bonilla and his wife, Neyla Alexandra Valero, installed software at the business centers of approximately 25 hotels in the United States and overseas, allowing them access to hotel guests' personal and financial information. Bonilla and his wife used this information to unlawfully create and use credit cards, debit cards, pre-paid cards, and bank and investment accounts for their benefit without the hotel guests' knowledge or approval.

Bonilla was apprehended in August 2007 and subsequently indicted for 16 separate counts: conspiracy to commit fraud in violation of 18 U.S.C. § 371 (Count 1); access device fraud in violation of 18 U.S.C. § 1029(a)(2) (Counts 2 through 7); identity theft in violation of 18 U.S.C. §§ 1028(a)(7) and (b)(1)(D) (Counts 8 through 11); and aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) (Counts 12 through 16). The four counts of identity theft and five counts of aggravated identity theft are most relevant to this appeal. The identity theft counts charged that Bonilla obtained the social security numbers of four victims (T.J.M., P.S., J.S., and H.T.) with the intent to commit access device fraud. The five counts of aggravated identity theft charged that during and in relation to access device fraud, Bonilla opened and used credit cards obtained in the aforementioned four victims' names (T.J.M, P.S., J.S., and H.T.) and in the name of a fifth victim (M.J.) whose social security number was not mentioned in the identity theft charges.

On January 9, 2008 Bonilla pled guilty to all 16 counts before the Honorable Paul C. Huck of the Southern District of Florida. At the change of plea hearing Bonilla stated that he was a college graduate and had been treated for bipolar disorder and alcoholism. He confirmed that he had been receiving his medication in prison and that he was not currently under the influence of any substances. Defense counsel stated that he believed Bonilla was capable of understanding the proceedings and participating in his defense. The government then made the following proffer:

[W]hile traveling extensively throughout the United States and overseas [Bonilla] would install and hide a commercially available software program capable of recording and later transmitting key strokes [sic] on computers located in hotel business centers . . . Bonilla used that software to illegally obtain log-in names, passwords, account data and other personal and financial information of hotel guests using those computers without their knowledge or consent . . . . Such techniques [and others] resulted in defendant obtaining hundreds of personal identification information belonging to others. [Bonilla] using stolen personal identification information and financial information used Internet and telephone to access payroll investment banking and other financial and personal accounts belonging to others. Once he had access to the accounts he diverted or transferred funds from those accounts to credit cards, debit cards, prepaid cards, bank and investment accounts he had created in his name and/or in the names of those whose personal identification information he obtained without their knowledge or approval. . . . [Bonilla] used the stolen funds and unauthorized credit and debit cards to purchase expensive electronics and personal luxuries and to pay for domestic and international travel.

(Plea Hr'g Tr. at 16-18.)

The probation officer subsequently prepared a presentence investigation report ("PSI") recommending a sentence in the guideline range of 108 to 135 months' imprisonment for Counts 1 through 11. The probation officer noted that Count 12 carried a two-year consecutive term, and that Counts 13 through 16 could run concurrently at the discretion of the court.

On April 11, 2008 Bonilla was sentenced. The court's oral pronouncement of the sentence was as follows: 60 months¹ each on Counts 1 through 11, to run concurrently; 24 months on Count 12, to run consecutively; and 24 months each count for Counts 13 through 16, to run concurrently to each other but consecutively to the other sentences imposed.² Thus, the total sentence was 108 months imprisonment. The written judgment and conviction, however, noted the sentence as 84 months imprisonment: 60 months as to Counts 1 through 11, running consecutively with 24 months as to Counts 12 through 16, which run concurrently to each other.

II. LEGAL STANDARD

We review sentencing arguments raised for the first time on appeal for plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir.2000). In order to find plain error, "(1) there must be error; (2) the error must be plain; and (3) the error must affect substantial rights." Id. Moreover, under Federal Rule of Criminal Procedure 52(b) the decision to correct the forfeited error is within the sound discretion of the court of appeals, and we should only exercise that discretion if the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citations omitted).

We review the sentence imposed by the district court for reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). "When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guideline range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness." Id. (citation omitted).

Finally, a district court's determination of the amount of loss for sentencing purposes is reviewed for clear error. United States v. Manoocher Nosrati-Shamloo, 255 F.3d 1290, 1291 (11th Cir. 2001).

III. DISCUSSION

A. Constitutionality of Plea

Bonilla first argues that his plea is invalid because he did not fully appreciate the consequences of his plea as required by Federal Rule of Criminal Procedure 11. Specifically, Bonilla claims that the court failed to advise him of the mandatory minimum sentence for Counts 12 through 16 and failed to confirm his plea was voluntary in light of his bipolar disease. The government responds that any failure to comply with Rule 11 did not affect Bonilla's substantial rights. We agree.

Because the Rule 11 violations were not raised at trial, we review for plain error. United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). However, a failure to comply with Rule 11 that "does not affect substantial rights shall be disregarded." Id. (quoting Rule 11(h)).

First, Bonilla knew of and did not object to the two year mandatory minimum sentence for Counts 12 through 16 (which amounts to an enhancement sentence for the convictions under Counts 2 through 7). The PSI clearly laid out the penalties for Counts 12 through 16 and Bonilla did not file an objection to the PSI, nor did he attempt to withdraw his plea. In fact the court went over the PSI at the sentencing hearing and Bonilla did not object to the statutory minimum at that time either. Any error is therefore harmless.

Second, we reject Bonilla's claim that the court failed to conduct the requisite "searching inquiry" into his mental state. At the plea hearing the court asked Bonilla if his bipolar disease was causing him any problems. Bonilla responded, "[n]o. I have been given medicines by the Bureau of Prisons on a daily basis." (Plea Hr'g Tr. at 3.) The court further advised Bonilla to let the court know if he had "any problems in that regard." (Id.) Moreover, Bonilla's counsel assured the court that Bonilla was "certainly able to go forward." (Id. at 4.) The...