United States v. Orona
| Decision Date | 19 April 2021 |
| Docket Number | CAUSE NO. 3:20-CR-49 DRL-MGG |
| Parties | UNITED STATES of America, Plaintiff, v. Lafiamma ORONA, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
Luke N. Reilander, Government Attorney, Molly E. Donnelly, Government Attorney, US Attorney's Office, South Bend, IN, for Plaintiff.
David Kenton Payne, Braje Nelson & Janes LLP, Michigan City, IN, for Defendant.
SENTENCING MEMORANDUM
From February through April 2020, Lafiamma Orona conducted an identity fraud operation whereby he stole mail from others and used their personal identification information to forge checks, open credit cards, and create fake identification cards. When arresting him, law enforcement found a loaded weapon, ammunition, drugs, and contraband relating to the operation. Mr. Orona pleaded guilty (without a plea agreement) to all counts of a four-count indictment: possession of stolen mail, 18 U.S.C. § 1708 ; mail fraud, 18 U.S.C. § 1341 ; aggravated identity theft, 18 U.S.C. § 1028(A)(a)(1) ; and unlawfully possessing a firearm as a felon, 18 U.S.C. § 922(g)(1).
The court must first calculate the guideline sentence correctly, then decide whether a guideline sentence is the right and reasonable sentence. Nelson v. United States , 555 U.S. 350, 351, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009) ; United States v. Schmidt , 930 F.3d 858, 862 (7th Cir. 2019). The 2018 sentencing guidelines apply because there are no ex post facto concerns. See Peugh v. United States , 569 U.S. 530, 531, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) ; U.S.S.G. § 1B1.11.
The government has declined to move for a third-level reduction for acceptance of responsibility. The guidelines authorize a two-level decrease when a "defendant clearly demonstrates acceptance of responsibility for his offense," U.S.S.G. § 3E1.1(a), and an additional one-level decrease if the government files a motion saying "the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently," U.S.S.G. § 3E1.1(b).
The court starts with the provision's plain language. See United States v. Hill , 645 F.3d 900, 907-08 (7th Cir. 2011). The third level presupposes the government's motion. See U.S.S.G. § 3E1.1(b) (). The application notes echo this requirement, saying the government remains in the "best position to determine whether the defendant has assisted authorities in the manner that avoids preparing for trial," so a formal motion must be made at sentencing. U.S.S.G. § 3E1.1 app. n.6. Indeed, Congress added this language requiring the government's motion in 2003 as part of sentencing reform. See Pub. Law 108-21 § 402(g)(2)(B) (2003). The government has broad discretion in this regard. See United States v. Deberry , 576 F.3d 708, 710-11 (7th Cir. 2009).
Though the government exercises broad discretion, it may not act invidiously or unconstitutionally. See United States v. Nurek , 578 F.3d 618, 624-25 (7th Cir. 2009). The application notes say the "government should not withhold such a motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her rights to appeal." U.S.S.G. § 3E1.1 app. n.6. This circuit has elaborated that the government may not withhold a motion under § 3E1.1(b) if its reason for doing so violates the Constitution, see United States v. Davis , 714 F.3d 474, 475 (7th Cir. 2013) (per curiam ), or if its reasons prove "invidious" or "unrelated to a legitimate governmental objective," Nurek , 578 F.3d at 624-25. These "invidious" reasons are those that don't further the interests identified in § 3E1.1, such as the appeal waiver. See U.S.S.G. § 3E1.1 app. n.6.
The government's motion isn't all that's needed. To warrant the third level of acceptance of responsibility, the defendant must "assist[ ] authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty." U.S.S.G. § 3E1.1(b) (emphasis added). The word "or" indicates an alternative, meaning that either the investigation or the prosecution was aided by his notice of intent to enter a guilty plea. The word "by" means that the result occurred through the "medium" or "agency" of the cause specified—that is, effectuated through.1 Thus, the defendant's timely notification of his intention to enter a guilty plea is the means through which he must aid either the investigation or prosecution of his misconduct.
The guideline also requires that the notice of intent to plead guilty "thereby permit[ ] the government to avoid preparing for trial and permit[ ] the government and the court to allocate their resources efficiently." U.S.S.G. § 3E1.1(b) (emphasis added). The word "thereby" means "by means of,"2 meaning that the notice of intent to plead guilty must produce the results specified—in this case three results: the notice must permit (1) the government to avoid preparing for trial and (2) the government to allocate its resources efficiently and (3) the court to allocate its resources efficiently.
In short, the crux of § 3E1.1(b) remains the defendant's timely plea—to be precise, his timely notice of his intent to plead guilty. His assistance to the government depends on this act, and it is through this act that he permits the government to avoid expending resources preparing for trial. Still, his notice of his intent to plead guilty isn't the end-all-be-all; it is but the prelude to assisting authorities to investigate or prosecute his misconduct. A plea notice must be timely—and through that the rest must follow.3
"In general, the conduct qualifying for a decrease in offense level under subsection (b) will occur particularly early in the case." U.S.S.G. § 3E1.1 app. n.6. This general rule isn't an absolute rule. There are scenarios when a defendant may be on his way to obtaining the third level under subsection (b) but forfeit that privilege because of his conduct later in the case. For instance, one could imagine a defendant filing a one-sentence notice expressing his intent to plead guilty to a charge, thereby helping the government avoid trial expense, only then to withdraw his notice without actually pleading guilty. The government's return to trial preparations and eventual trial would likely preclude this third level, not to mention the other two levels. See U.S.S.G. § 3E1.1. No one could fairly argue that the defendant was entitled to this third level just because he filed a notice and, merely for a time, helped the government avoid the expense of trial. His acceptance of responsibility must persist—and persist through his plea, sentencing hearing, and allocution. See United States v. Ewing , 129 F.3d 430, 436 (7th Cir. 1997) ; United States v. Corral-Ibarra , 25 F.3d 430, 442 (7th Cir. 1994).
Similarly, a defendant who timely notifies the government of his desire to plead guilty and ultimately pleads guilty may permit the government to avoid trial preparations, but it cannot always be said that the defendant thereafter "permit[s] the government and the court to allocate their resources efficiently." U.S.S.G. § 3E1.1(b). This clause cannot be read to refer merely to the government's trial preparations and expense because that is already covered by the prior clause, else one could strike this last clause and not lose any meaning. That isn't what courts do; instead, courts "give effect ... to every clause and word." Setser v. United States , 566 U.S. 231, 239, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012).
Of interest here, though § 3E1.1(a) refers to a defendant's clear acceptance of responsibility "for his offense," § 3E1.1(b) refers to a defendant's timely assistance to authorities in investigating or prosecuting "his own misconduct." This choice of words isn't meaningless. The application notes define § 3E1.1(a) as covering not just the offense, but prohibiting a defendant from "falsely denying any additional relevant conduct for which the defendant is accountable under § 1B1.3," though he needn't volunteer or affirmatively admit that relevant conduct. U.S.S.G. § 3E1.1 app. n.1(A). At minimum then, "misconduct" refers not just to the defendant's offense but his established relevant conduct. The word is likely broader still, but the court won't define its outer bounds when nothing in this case calls for it.
Suffice to say, if a defendant falsely denies relevant conduct for which he is accountable, he makes the government spend its resources proving—and the court's resources determining—the actual scope of his misconduct, giving the government the option to decline a motion for this third level, and giving the court the option to find that he has not timely accepted responsibility within the meaning of § 3E1.1(b). To be sure, the defendant's false denial of relevant conduct may warrant not only the denial of the third level of acceptance but all three levels, though the court considers many other factors in assessing acceptance under § 3E1.1(a). See U.S.S.G. § 3E1.1 app. n.1(A); see, e.g. , Nurek , 578 F.3d at 625 ().
Mr. Orona isn't entitled to force the government to move for this third level for acceptance of responsibility. First, the government hasn't filed a motion, and that isn't because of an invidious or unconstitutional reason. Second, Mr. Orona has falsely denied offense conduct. Third, he has caused both the government and the court to expend rather than to allocate their resources efficiently. The government has acted well within its...
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