The aggravated identity theft statute (18 U.S.C. §1028A) specifies a sentence of two years — no more, no less — for each violation.  So, when a defendant is convicted of multiple violations of the statute, should the two-year sentences be imposed concurrently or consecutively?  Today, in United States v. Dooley (No. 11-2256), the Seventh Circuit recognized that the sentencing judge has discretion in making the decision, but held that the judge must consider the factors set forth in U.S.S.G. §5G1.2 Application Note 2(B).

Dooley was convicted in three separate counts of violating §1028A, leaving the judge to choose among three sentencing options: 24 months, 48 months, or 72 months.  (I leave out the effect of Dooley’s conviction of various other offenses, which did not play a significant role in the Seventh Circuit’s analysis.)  In selecting the 72-month option, the judge focused on the need to avoid disparities relative to another defendant.  However, the judge did not mention the Note 2(B) factors.  This, the Seventh Circuit held, was plain error.  

Here was the court’s reasoning.  Section 1028A does not provide any substantive guidance on the consecutive-concurrent decision, but instead indicates 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 Commission has addressed the question through Note 2(B):

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 factors:

(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 underlying 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 Related Counts). Generally, multiple counts of 18 U.S.C. §1028A should run concurrently with one another in cases in which the underlying 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.

The Seventh Circuit acknowledged that these guidelines are vague, but nonetheless insisted on their value as a starting point in the analysis.  (As an aside, I’m pleased to see the court recognize that vague is not the same thing as useless; in a slightly different context, I’ve been disappointed post-Booker by the extent to which the courts seem not to take the §3553(a) factors seriously because of their apparent vagueness.  For more, see my post here.)

The sentencing judge thus erred by not expressly discussing the Note 2(B) factors.  ”Perhaps the district judge privately considered Note 2(B),” the Seventh Circuit observed, “but he did not say so or address all of its considerations.”  The error, then, was a procedural one; the court did not suggest that 72 months was substantively unwarranted — it just needed to be properly justified by the sentencing judge.

The final wrinkle in the case was that Dooley did not object in the lower court, which meant that she could not obtain a resentencing unless the plain-error test was satisfied.  The court seemed to have some misgivings about giving Dooley any relief, but was ultimately swayed by the prosecutor’s failure to press the matter:

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.

Dooley will thus get her resentencing.

Cross posted at Life Sentences.