United States v. Rabiu

• Decision Date: 21 August 2013
• Docket Number: No. 12–3884.,12–3884.
• Citation: 721 F.3d 467
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Tajudeen RABIU, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

721 F.3d 467

UNITED STATES of America, Plaintiff–Appellee,

v.Tajudeen RABIU, Defendant–Appellant.

No. 12–3884.

United States Court of Appeals, Seventh Circuit.

Argued June 13, 2013.

Decided Aug. 1, 2013.

Rehearing Denied Aug. 21, 2013.

Steven A. Block, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

William T. Huyck, Attorney, Chicago, IL, for Defendant–Appellant.

Before MANION, SYKES, and TINDER, Circuit Judges.

MANION, Circuit Judge.

Tajudeen Rabiu pleaded guilty to bank fraud, 18 U.S.C. § 1344, and aggravated identity theft, id. § 1028A(a)(1). The district court calculated a total offense level of 26, which includes a four-level upward adjustment based on a finding that the offense involved fifty or more “victims.” SeeU.S.S.G. § 2B1.1(b)(2)(B) (2010). The crimes were committed between 2003 and 2007, but the court applied the 2010 version of the sentencing guidelines, which for fraud offenses expands the definition of “victim” to include not only persons who incurred actual pecuniary loss but also “any individual whose means of identification was used unlawfully or without authority.” See id.§ 2B1.1 cmt. n. 4(E) (emphasis added). The number of victims, if based entirely on actual pecuniary loss, would have been at least ten but not fifty, so under the version of the guidelines in effect when Rabiu committed his crimes, the upward adjustment for the number of victims would have been two levels, not four. SeeU.S.S.G. § 2B1.1(b)(2)(A) (2006). Rabiu thus argues that applying the 2010 guidelines violated the Ex Post Facto Clause and, alternatively, that the district court misinterpreted the expanded definition of “victim” in linking him to at least fifty victims. Although we agree with Rabiuthat the court overstated the number of victims, it is clear that the district judge would have imposed the same sentence even had he accepted Rabiu's calculation of the imprisonment range. Accordingly, the error was harmless.

I. Facts

Rabiu was indicted for bank fraud, unauthorized use of access devices, and aggravated identity theft. See18 U.S.C. §§ 1344, 1029(a)(2), 1028A(a)(1). According to the indictment, Rabiu had worked as a teller at three different banks between September 2003 and February 2007. Without authorization, he searched account records looking for account holders with balances exceeding $100,000. He then stole their identifying information and, along with his codefendants, compromised some of that information to divert checks and money into fraudulently opened bank accounts. Postal inspectors who were investigating Rabiu lawfully searched his home and seized handwritten notes containing the name, Social Security number, and account information of eighty-six customers from the banks where he had worked, as well as an unspecified number of fake driver's licenses and Social Security cards bearing the names of some of those customers. Apparently only seventeen of those account holders suffered pecuniary loss, and those losses eventually were reimbursed by the banks.

Rabiu was arrested in April 2009. After a codefendant pleaded guilty and agreed to cooperate against him, Rabiu pleaded guilty to one count each of bank fraud and aggravated identity theft. He submitted a plea declaration admitting participation in the scheme, but insisting that some of the names and identifying information used on the phony driver's licenses and Social Security cards were fictitious and not from bank customers. Rabiu's plea declaration does not include any admission concerning the number of customers whose information he stole or used.

Before sentencing, the government asserted that Rabiu should receive a four-level upward adjustment under § 2B1.1(b)(2)(B) because, according to the government, the bank fraud had “involved 50 or more victims.” The government cited the current definition of “victim,” which, for offenses involving identity theft, was broadened in November 2009 (after Rabiu's arrest). See U.S.S.G. supplement to app. C (2009) (amendment 726). The expanded definition, found in Application Note 4(E) to § 2B1.1, includes not only persons who suffered actual injury but also those “whose means of identification was used unlawfully or without authority.” U.S.S.G. § 2B1.1 cmt. n. 4(E)(ii) (2010). Rabiu countered that, because he was charged with crimes that had ended in 2007, applying this broader definition of “victim” was an ex post facto violation (though he acknowledged this court's decision to the contrary, see United States v. Demaree, 459 F.3d 791 (7th Cir.2006)). He urged the district court to use the narrower definition of “victim” in effect when the crimes were committed. Rabiu alternatively argued that, even under the broader definition, the number of victims is less than 50 because the evidence proved not that he had “used” their identifying information, but only that he had stolen or possessed the information.

At sentencing the parties debated the meaning of “used” in Application Note 4(E). For a person to count as his victim, Rabiu maintained, the government had to prove that he actively employed that person's identifying information in connection with the bank fraud; simply writing down and concealing their identifying information, he insisted, showed only that he stole or possessed the information. Under the broadened definition of “victim,” he argued, he was responsible for only thirty-three victims, not for all eighty-six whose identifying information was found in his home. The government insisted, however, that Rabiu had “used” the account holders' identifying information simply by writing it down and taking it to his apartment (and thus making each account holder a “victim”).

The district court agreed with the government, reasoning that the bank customers became “victims” when Rabiu “took their information-their private, personal identity information—from the bank to his home and proceeded to attempt to utilize it in the execution of his ongoing scheme.” (The court's assertion that Rabiu had made an “attempt to utilize” the stolen information is an overstatement; as far as the record shows, only a few of the eighty-six names and associated identifying information appear on phony documents.) The court accordingly added four levels (not two, as the probation officer had recommended, for 10 or more victims, seeU.S.S.G. § 2B1.1(b)(2)(A)), and calculated a total offense level of 26. Rabiu's criminal-history category is I, so he faced an imprisonment range of 63–78 months. The court did not address Rabiu's ex post facto argument but did discuss the factors underlying its sentencing decision, including the seriousness of the crimes and the need to protect the public from Rabiu and deter him and others from future crimes, see18 U.S.C. § 3553(a). Just before pronouncing the sentence, the court stated: “Frankly, regardless of what any other court in the future may rule that the appropriate offense level and guideline calculation was, I feel the sentence I'm about to impose is appropriate in this case for the reasons that I've stated here today.” The court then imposed total imprisonment of 102 months: 78 months for bank fraud and 24 months consecutive for aggravated identity theft.

II. Discussion

On appeal Rabiu maintains that the district court's use of the 2010 guidelines, rather than a version without the expanded definition of “victim,” violated the Ex Post Facto Clause. We held in Demaree, 459 F.3d at 795, that using the current version of the guidelines does not raise an ex post facto concern even if the result is a greater imprisonment range for the charged offense. Shortly before oral argument, however, the Supreme Court rejected our stance and held that the Ex Post Facto Clause is violated when a defendant is sentenced under a version of the guidelines promulgated after he committed his crime if the newer version yields a higher sentencing range. Peugh v. United States, ––– U.S. ––––, 133 S.Ct. 2072, 2084, 186 L.Ed.2d 84 (2013). That decision supports Rabiu's argument that his guidelines range is overstated; he should have received a two-level increase (rather than four levels) for the number of victims, and his guidelines range should have been 51–63 months.

The Peugh decision also instructs, however, that a misapplication of a new guideline will be deemed harmless if the sentencing court also stated on the record that the identical sentence would have been imposed if the court followed the older, more lenient version. See Peugh, 133 S.Ct. at 2088 n. 8. Many times we have found that message to insulate a sentencing judge's misapplication of a sentencing statute or guideline. See, e.g., United States v. Foster, 701 F.3d 1142, 1157–58 (7th Cir.2012) (concluding that error in failing to apply Fair Sentencing Act was harmless where district judge stated he would impose identical sentence “applying the FSA or not”); United States v. Hill, 645 F.3d 900, 912–13 (7th Cir.2011) (explaining that purported sentencing error would have been harmless based on district judge's statement that the sentence would be the same “if there were no guidelines”); United States v. Abbas, 560 F.3d 660, 667 (7th Cir.2009) (concluding that application of upward adjustment was harmless error because district judge said she would have given same sentence without adjustment); United States v. Anderson, 517 F.3d 953, 965–66 (7th Cir.2008) (same where district judge stated he would impose identical sentence “if another judge determines that my sentencing guidelines calculations were in any way made in error”).

Before imposing the sentence, the district court discussed the pertinent factors in 18 U.S.C. § 3553(a) and explained that those factors warrant the punishment imposed even if the court's application of the guidelines is determined to be erroneous. That statement dismantles Rabiu's contention that the misapplication of the new version of § 2B1.1(b)(2)(B) could have been harmful. W...