U.S. v. Elmardoudi, No. 06-CR-112-LRR.
| Court | U.S. District Court — Northern District of Iowa |
| Writing for the Court | Linda R. Reade |
| Citation | 611 F.Supp.2d 879 |
| Decision Date | 12 March 2008 |
| Docket Number | No. 06-CR-112-LRR. |
| Parties | UNITED STATES of America, Plaintiff, v. Abdel-Ilah ELMARDOUDI, a/k/a "George Labibe," "Jean-Pierre Tardelli," "Hussein Mohsen Safieddine" and "Abdullah,", Defendant. |
v.
Abdel-Ilah ELMARDOUDI, a/k/a "George Labibe," "Jean-Pierre Tardelli," "Hussein Mohsen Safieddine" and "Abdullah,", Defendant.
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Kandice A. Wilcox, Richard L. Murphy, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.
Christopher A. Clausen, Boliver Law Firm, Marshalltown, IA, for Defendant.
LINDA R. READE, Chief Judge.
I. INTRODUCTION ..................................................................... 884
II. PROCEDURAL BACKGROUND ............................................................. 884
III. SENTENCING PROCESS ............................................................... 885
IV. SENTENCING CALCULATIONS .......................................................... 885
A. 2000 Guidelines ............................................................... 887
1. Defendant is properly scored with a base offense level of 6,
pursuant to USSG § 2F1.1 ............................................. 887
2. Defendant's offense level should be increased two offense levels for
more than minimal planning, pursuant to USSG § 2F1.1(b)(2) ........... 887
3. Defendant's offense level should be increased to offense level 12,
pursuant to USSG § 2F1.1(b)(5) ....................................... 888
a. "Access device" ......................................................... 889
b. "Device-making equipment" ............................................... 889
c. "Means of identification" ............................................... 889
d. Application ............................................................. 890
i. Access devices ...................................................... 890
ii. Means of identification ............................................. 891
iii. Enhancement .........................................................891
4. Defendant's offense level should be increased two offense levels for
either relocation or sophisticated means, pursuant to USSG
§ 2F1.1(b)(6) ....................................................... 892
5. Defendant's offense level should be increased three offense levels
for his role in the offense, pursuant to USSG § 3B1.1(b) ............. 893
B. 2007 Guidelines ............................................................. 896
1. Defendant is properly scored with a base offense level of 6,
pursuant to USSG § 2B1.1 ............................................. 896
2. Defendant's offense level should be increased to offense level 12 for
the involvement of sophisticated means, pursuant to USSG
§ 2B1.1(b)(9) ........................................................ 896
3. Defendant's offense level should be increased two offense levels for
the possession or use of an authentication feature, pursuant to
USSG § 2B1.1(b)(10) .................................................. 897
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4. Defendant's offense level should be increased three offense levels
for his role in the offense, pursuant to USSG § 3B1.1(b) ............. 898
C. Acceptance of Responsibility .................................................. 898
D. Ex Post Facto Clause Analysis ................................................. 899
E. Criminal History Determination and the 2007 Sentencing Guidelines
Range ........................................................................ 900
1. The court shall grant an upward departure for under-representation
of Defendant's criminal history, pursuant to
USSG § 4A1.3(a)(1) ................................................... 900
2. Defendant's 2007 Sentencing Guidelines range ............................... 901
F. Adjustment and Departure Issues ............................................... 901
1. The court shall not grant a downward departure, pursuant to
USSG § 5K2.16 or USSG § 5K2.23 .................................. 901
a. USSG § 5K2.16 ...................................................... 901
b. USSG § 5K2.23 ...................................................... 902
2. The court shall not grant an upward departure for endangering
national security, public health or safety, pursuant to USSG
§ 5K2.14 ............................................................. 903
3. The court shall grant an upward departure of nine offense levels
for the seriousness of an underlying potential charge not pursued,
under USSG § 5K2.21 .................................................. 904
V. CONCLUSION ....................................................................... 907
The matter before the court is the sentencing of Defendant Abdel-Ilah Elmardoudi on his plea of guilty to one count of misuse of a fraudulently obtained Social Security number, in violation of 42 U.S.C. § 408(a)(7)(A).
On August 16, 2006, Defendant was charged in the United States District Court for the Northern District of Iowa in a two-count Indictment. Count I charged Defendant with conspiring, between about June and September of 2001, to commit various offenses involving the making and use of false government identification documents for foreign nationals residing in the United States, in violation of 18 U.S.C. § 371. Count II charged Defendant with, on or about August 30, 2001, using a falsely obtained Social Security number with intent to deceive for the purpose of obtaining a State of Iowa identification card and to obtain a bank account at the Marquette Bank in Cedar Rapids, Iowa, in violation of 42 U.S.C. § 408(a)(7)(A).
On July 9, 2007, Defendant appeared before United States Magistrate Judge Jon S. Scoles and pled guilty to Count 1 of the Indictment. On July 10, 2007, 2007 WL 2022002, the court entered an order accepting Defendant's plea of guilty to Count II. On October 31, 2007, the United States Probation Office ("USPO") filed a presentence investigation report ("PSIR") and also prepared a sentencing recommendation.
On December 10, 2007, Defendant appeared at a sentencing hearing ("Hearing") before the undersigned. Assistant United States Attorney Kandice Wilcox represented the government. Defendant was personally present and represented by Attorney Christopher Clausen. At the conclusion of the Hearing, the court took under advisement the issues presented and reserved ruling until the entry of this Sentencing Memorandum. On December 28, 2007, the government filed a Sentencing Memorandum ("Government's Memorandum") (docket no. 100), and Defendant filed a Sentencing Memorandum ("Defendant's Memorandum") (docket no. 101).
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The matters discussed in the instant Sentencing Memorandum are fully submitted and ready for decision.
The Sentencing Guidelines are no longer mandatory. United States v. Haack, 403 F.3d 997, 1002 (8th Cir.2005) (discussing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). They are advisory. Id. However, the Supreme Court recently explained
a district court should begin all sentencing proceedings by correctly calculating the applicable [Sentencing Guidelines] range. [See Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007)]. As a matter of administration and to secure nationwide consistency, the [Sentencing Guidelines] should be the starting point and the initial benchmark. The [Sentencing Guidelines] are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, [the district judge] may not presume that the [Sentencing Guidelines] range is reasonable. [See id.] [She] must make an individualized assessment based on the facts presented. If [she] decides that an outside-[the Sentencing Guidelines] sentence is warranted, [she] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, [she] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.
Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); cf. United States v. Sitting Bear, 436 F.3d 929, 934 (8th Cir.2006) (outlining a threestep process). In light of Gall's guidance, the instant Sentencing Memorandum is primarily designed to provide a more detailed understanding of the court's reasoning on the contested advisory Sentencing Guidelines issues; it is not comprehensive. For example, the court's analysis of each of the factors at 18 U.S.C. § 3553(a) is outside the scope of this document. The Supreme Court has stated:
The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon the circumstances. Sometimes a judicial opinion responds to every argument; sometimes it does not; sometimes a judge simply writes the word "granted" or "denied" on the face of a motion while relying upon context and the parties' prior arguments to make the reasons clear. The law leaves much, in this respect, to the judge's own professional judgment.
Rita, 127 S.Ct. at 2468. What is important is that "[t]he sentencing judge ... set forth enough to satisfy the appellate court that [she] has considered the parties' arguments and has a reasoned basis for exercising [her] own legal decisionmaking authority." Id. (citing United States v. Taylor, 487 U.S. 326, 336-37, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988)).
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United States v. Rodriguez-Cisneros, No. 8:12–CR–291.
...from its history and its plain language—was to address anti-counterfeiting measures. See e.g. United States v. Elmardoudi, 611 F.Supp.2d 879, 897 (N.D.Iowa 2008). A Social Security number, by contrast, is clearly a “means of identification” as defined by the statute: a “name or number that ......
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United States v. Rodriguez-Cisneros, No. 8:12–CR–291.
...from its history and its plain language—was to address anti-counterfeiting measures. See e.g. United States v. Elmardoudi, 611 F.Supp.2d 879, 897 (N.D.Iowa 2008). A Social Security number, by contrast, is clearly a “means of identification” as defined by the statute: a “name or number that ......