United States v. Ronnie Allen, II ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 9, 2019*
Decided July 11, 2019
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 17‐2722
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 16 CR 159‐2
RONNIE ALLEN II,
Defendant‐Appellant. Matthew F. Kennelly,
Judge.
ORDER
A jury found Ronnie Allen II guilty of two counts of identity theft, see 18 U.S.C.
§ 1028(a)(7), two counts of aggravated identity theft, id. § 1028A(a)(1), and two counts of
access device fraud, id. § 1029(a)(3). On appeal, Allen and the government agree that
convicting him for both identity theft and aggravated identity theft violated the Double
* Although this case originally was scheduled for oral argument on July 9, 2019,
after receiving the government’s brief, the assigned panel, on its own motion, vacated
oral argument. The case was submitted to the panel on the briefs and the record for
decision. See FED. R. APP. P. 34(a)(2).
No. 17‐2722 Page 2
Jeopardy Clause of the Constitution. We agree, and therefore we vacate the convictions
and sentences for the two counts of identity theft.
Unhappy with his discharge from the Air Force, Allen stole a roster containing
the names, birthdates, and social security numbers of about 1400 fellow
servicemembers. He then emailed that information to two people, on two separate
occasions, so that they could use the information to fraudulently open credit and debit
card accounts or make use of existing accounts. Allen expected to be compensated if the
information proved profitable. The first email, sent in January 2013, contained
approximately 100 identities. In April 2014, Allen sent a second email that included the
entire roster.
Allen was indicted on the same three charges for each transfer: identity theft,
18 U.S.C. § 1028(a)(7), aggravated identity theft, id. § 1028A(a)(1), and fraudulent use of
an access device, id. § 1029(a)(3). Counts One and Four (the two identity‐theft counts)
charged that, in January 2013 and April 2014, respectively, Allen knowingly transferred
the identifications of members of the Air Force in connection with a violation of
Illinois’s identity‐theft law, 720 ILCS 5/16‐30(a)(1). The two aggravated‐identity‐theft
counts (Counts Three and Six) charged that, on those same dates, Allen knowingly
transferred the identifications of servicemembers while committing access device fraud,
18 U.S.C. § 1029(a)(3).
The district judge sentenced Allen to a total term of 48 months’ imprisonment.
He received concurrent 24‐month sentences on the identity‐theft and access‐device‐
fraud counts, and a consecutive 24 months’ imprisonment—the statutory minimum—
for aggravated identity theft. See 18 U.S.C. § 1028A(a)(1).
On appeal, Allen and the government agree that Allen’s convictions for identity
theft and aggravated identity theft amount to multiple punishments for the same acts.
See U.S. CONST. amend. V (“No person shall ... be subject for the same offence to be
twice put in jeopardy of life or limb.”). Allen did not raise a double‐jeopardy argument
in the district court; therefore, we review the forfeited argument for plain error.
See United States v. Ajayi, 808 F.3d 1113, 1124 (7th Cir. 2015). We look for (1) “an error or
defect” that is (2) “clear or obvious, rather than subject to reasonable dispute” and that
(3) “affected the appellantʹs substantial rights”; if one exists, we have the discretion to
correct the error only if it “‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.’” Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)). We have previously held that a
No. 17‐2722 Page 3
conviction on a multiplicitous indictment is a plain error. See United States v. Gries, 877
F.3d 255, 258–260 (7th Cir. 2017); Ajayi, 808 F.3d 1113 at 1124; United States v. Rea, 621
F.3d 595, 600–01 (7th Cir. 2010).
Double jeopardy does not preclude imposition of multiple punishments for the
same offense where the legislature has authorized cumulative punishment. See McCloud
v. Deppisch, 409 F.3d 869, 873 (7th Cir. 2005). But here, neither statute unambiguously
allows cumulative convictions and punishments for the same act. Both criminalize the
transfer, use, or possession of identifying information either “in connection with” a
state law felony or violation of federal law (identify theft) or “during and in relation to”
certain enumerated felonies (aggravated identity theft). The history of § 1028A shows
that Congress intended to mandate cumulative punishments for aggravated identity
theft and the underlying offense. H.R. REP. NO. 108‐528 (2004), as reprinted in 2004
U.S.C.C.A.N. 779, 785–86 (2004). But § 1028A(c)(4) explicitly excludes identity theft from
the list of qualifying predicate offenses. And nowhere in the legislative history is there a
discussion of cumulative punishments for violations of § 1028(a)(7) and § 1028A(a)(1).
H.R. REP. NO. 108‐528, 2004 U.S.C.C.A.N. at 785–86.
With no unequivocal answer from the legislature, we turn to whether identity
theft and aggravated identity theft have the “same elements” under the test set forth in
Blockburger v. United States, 284 U.S. 299 (1932). A defendant’s conviction of two offenses
for the same conduct is permissible if each offense “requires proof of a fact which the
other does not.” Id. at 304. Here, the first three elements of both statutes are identical.1
And the fourth element of each is satisfied by unlawful activity—the only difference
being that identity theft is triggered by any state felony or violation of federal law,
whereas the predicate for an aggravated‐identity‐theft conviction must be among
eleven classes of federal offenses enumerated in § 1028A(c).
1 A person commits identity theft in violation of § 1028(a)(7) if he (1) “knowingly
transfers, possesses, or uses”; (2) “without lawful authority”; (3) “a means of
identification of another person”; (4) “with the intent to commit, or to air or abet, or in
connection with, any unlawful activity that constitutes a violation of Federal law, or
that constitutes a felony under any applicable State or local law.”
A person commits aggravated identity theft in violation of § 1028A(a)(1) if he (1)
“knowingly transfers, possesses, or uses”; (2) “without lawful authority”; (3) “a means
of identification of another person”; (4) “during and in relation to any felony violation”
enumerated in § 1028A(c).
No. 17‐2722 Page 4
True, the indictment in this case sets forth different underlying offenses for the
aggravated‐identity‐theft and identity‐theft counts: access device fraud for the former,
identity theft under Illinois for the latter. But our inquiry focuses solely on the elements
of the statutes. See Blockburger, 284 U.S. at 304. And the enumerated offenses that can
support a conviction for aggravated identity theft—including access device fraud—
would also satisfy the fourth element of basic identify theft, which is broader. See
United States v. Bonilla, 579 F.3d 1233, 1243 (11th Cir. 2009) (charging defendant with
identity theft and aggravated identity theft was “clear example of one act violating two
distinct statutory provisions”). In other words, proving that Allen committed
aggravated identity theft necessarily entailed proving that he committed identity theft.
Of course, Allen could have been prosecuted for both identity theft and
aggravated identity theft if the charges were based on different acts. See United States
v. Faulds, 612 F.3d 566, 570 (7th Cir. 2010). But the record makes clear that each set of
Allen’s § 1028(a)(7) and § 1028A(a)(1) convictions is based on the same underlying
conduct. Counts One and Three both target the same January 2013 email of personal
identifying information, while Counts Four and Six pertain to the same April 2014
email. Because the government did not establish that Allen committed identity theft and
aggravated identity theft as two distinct courses of conduct, he could not be
constitutionally convicted of both.
These duplicative convictions and sentences cannot stand. See Ball v. United
States, 470 U.S. 856, 864 (1985); Gries, 877 F.3d at 260. There is no need, however, for full
resentencing. “[I]n a case in which the lesser‐included offense has fewer elements and is
the less serious offense, vacating the sentence for the graver offense would be an abuse
of discretion.” United States v. Peel, 595 F.3d 763, 768 (7th Cir. 2010). A conviction for
aggravated identity theft carries a mandatory consecutive two‐year term of
imprisonment, making it the “graver” of the two offenses. Thus, the identity‐theft
convictions under § 1028(a)(7) must be vacated. This is true even though vacating them
will not change Allen’s prison time. Not only were distinct special assessments imposed
on those counts, but a “separate conviction, apart from the concurrent sentence, has
potential adverse collateral consequences that may not be ignored.” Ball, 470 U.S. at 865;
see also United States v. Parker, 508 F.3d 434, 441 (7th Cir. 2007).
Therefore, we VACATE the convictions and sentences for identity theft, 18 U.S.C.
§ 1028(a)(7), and REMAND to the district court with instructions to modify the
judgment accordingly. In all other respects, we AFFIRM.