United States v. Chibuko, No. 12-39 (2d Cir. 2014)Annotate this Case
Defendant appealed his conviction and sentence for nine counts of various fraud crimes, including three counts of aggravated identity theft, 18 U.S.C. 1028A. The district court ordered that defendant's terms of imprisonment for all three of his section 1028A crimes run consecutively with each other even though two of those crimes may fall within U.S.S.G. 5G1.2 Application Note 2(B)(ii), which describes when the sentences for section 1028A crimes should generally run concurrently with each other. Here, the facts sufficiently suggested that at most two of the offenses underlying defendant's section 1028A offenses - counts three and eight - were groupable and therefore it was plain error for the district court not to discuss groupability. Count five, however, was clearly not groupable with counts three and eight. Therefore, the court found no error in the district court's failure to discuss groupability with respect to the sentence for this crime. The court remanded to the district court for further proceedings in connection with the sentences on counts four and nine; the court found no plain error with respect to the district court's decision to run the sentence for count six consecutively to all other sentences; and the court rejected defendant's other sentencing challenges.