12-39
United States v. Chibuko

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
17th day of July, two thousand fifteen.

Present:
         ROBERT A. KATZMANN,
                     Chief Judge,
         AMALYA L. KEARSE,
         RICHARD C. WESLEY,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                   v.                                           No. 12-39

JOEY CHIBUKO, AKA “Steven Ray Buckley,” AKA
“Steven R. Buckley,” AKA “Steven Buckley,” AKA
“Joseph Pride,”

         Defendant-Appellant.
________________________________________________

For Appellee:                     Christopher M. Mattei, Assistant United States Attorney, for
                                  Deirdre M. Daly, United States Attorney for the District of
                                  Connecticut, Hartford, CT.
For Defendant-Appellant:          Devin McLaughlin, Langrock Sperry & Wool, LLP,
                                  Middlebury, VT.


       Appeal from the United States District Court for the District of Connecticut (Bryant, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant-Appellant Joey Chibuko reinstates his sentencing appeal following a limited

remand that resulted in a February 24, 2015 ruling entered by the United States District Court for

the District of Connecticut (Bryant, J.). See Order, ECF No. 135, No. 3:10-cr-204-VLB (D.

Conn. Feb. 24, 2015) (“D. Ct. Ruling”). We assume the parties’ familiarity with the underlying

facts, procedural history, and the issues on appeal.

       We reject Chibuko’s arguments that the district court abused its discretion in its analysis

on remand under United States Sentencing Guidelines § 5G1.2 Application Note 2(B) (“Note

2(B)”). Note 2(B) states that, when exercising its discretion to impose consecutive or concurrent

terms for multiple convictions for violations of 18 U.S.C. § 1028A, a sentencing court should

consider a “non-exhaustive list of factors” including the “nature and seriousness of the

underlying offenses,” whether those offenses are “groupable under [Guidelines] § 3D1.2,” and

“[w]hether 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.” Note 2(B) (emphasis added). “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.” Note 2(B)(ii).

       In its original sentencing decision, the district court imposed consecutive terms of

imprisonment for counts four and nine, two section 1028A counts whose underlying offenses


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were charged in counts three and eight, respectively. The district court grouped counts three and

eight, offenses based on Chibuko’s false employment applications in Steven Buckley’s name.

Our previous opinion remanded the case to the district court with instructions to “explain its

departure from the ‘general[]’ rule that the § 1028A sentences should run concurrently when the

underlying crimes were grouped.” United States v. Chibuko, 744 F.3d 259, 264 (2d Cir. 2014)

(quoting Note 2(B)(ii)). We did not require re-sentencing to concurrent terms, however, because

it “remained within the district court’s discretion to determine whether the ‘general[]’ rule

should not apply based either on a factor spelled out in Application Note 2(B) or, given the

expressly non-exhaustive nature of Note 2(B), some other factor.” Id.

       On remand, the district court recognized the general rule set out in Note 2(B)(ii). See D.

Ct. Ruling at 20. But the district court also highlighted certain “aggravating factors” justifying

the imposition of consecutive terms, including its determination that Chibuko’s criminal history

category under the Guidelines understated his actual criminal history, the harm caused to

financial institutions from Chibuko’s use of Buckley’s identity to enter into commercial

transactions, and the possibility that Buckley could have been ejected from his group home for

developmentally disabled adults due to Chibuko’s conduct. Id. at 21–22. We see no abuse of

discretion in the district court’s conclusion that the general rule of concurrent sentences for

groupable offenses was outweighed by other factors present in this case.

       The district court also considered the third factor under Note 2(B)—the purposes of

sentencing set forth in 18 U.S.C. § 3553(a)(2)—in deciding to impose the section 1028A terms

consecutively. The court’s ruling on remand incorporated its statements at Chibuko’s sentencing

hearing explaining why consideration of the section 3553(a)(2) factors warranted a substantial


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sentence, including its suggestion that Buckley was potentially exposed to tax liability as a result

of Chibuko’s employment-application frauds. See D. Ct. Ruling at 17–18. It also discussed

Chibuko’s refusal to accept responsibility for his conduct, as evidenced by his insistence

throughout trial and sentencing that he was in fact Buckley. See id. at 20. The district court could

reasonably determine that such circumstances implicated “the need for the sentence imposed” to

“reflect the seriousness of the offense, to promote respect for the law,” and to “protect the public

from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2).

       Although Chibuko argues that the district court erroneously referred to his “history and

characteristics,” id. § 3553(a)(1), in its analysis of the section 3553(a)(2) factors, Chibuko’s

history and characteristics were clearly relevant to determining whether consecutive terms would

better promote respect for the law and deter him from committing further crimes, see D. Ct.

Ruling at 18 (finding that Chibuko’s criminal history category “ ‘clearly understates his risk of

recidivism, his danger to the community, and his criminality’ ” (quoting Dec. 20, 2011

Sentencing Hr’g Tr. at 37:17-19)).

       With respect to the first factor, the “nature and seriousness of the underlying offenses,”

Note 2(B)(i), the district court found it material that Chibuko took advantage of a

developmentally disabled man who was unable to protect himself, see D. Ct. Ruling at 15, 17.

But the district court did not limit its inquiry to the employment-application frauds that used

Buckley’s name. It described the “offense at issue here” as “part of a much larger scheme that

spanned over 17 years,” and discussed, among other considerations, Chibuko’s use of Buckley’s

identity to engage in various commercial transactions, Chibuko’s history of identity thefts in

three states, his use of stolen identities to avoid criminal prosecution, and the fraudulent


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identification documents unrelated to Buckley that were found in Chibuko’s residence upon his

arrest. See D. Ct. Ruling at 15–16.

        In this reinstated appeal, Chibuko contends that by considering more than just the

employment-application frauds that constituted counts three and eight, the district court

impermissibly broadened the scope of the “underlying offenses” referred to in Note 2(B)(i) to

include other relevant conduct and prior bad acts. Chibuko does not, however, argue that any of

the district court’s findings of fact were clearly erroneous, nor does he contend that his victim’s

vulnerability was irrelevant to the seriousness of his employment-application offenses.

Accordingly, he ascribes error only to the district court’s consideration of conduct beyond the

two charged instances of employment-application fraud in considering the nature and

seriousness of his underlying offenses. We need not determine the breadth of “underlying

offenses” in Note 2(B)(i), however, because any error in the district court’s interpretation of the

first factor was harmless. See Fed. R. Crim. P. 52(a) (an error that does not affect a party’s

substantial rights “must be disregarded”).

        The non-exhaustive list of factors in Note 2(B) does not proscribe the district court’s

reliance on facts related to Chibuko’s scheme of stealing Buckley’s identity, Chibuko’s prior

fraudulent impersonations, and his possession of other false identification documents at the time

of his arrest. Indeed, the district court reasonably considered much of the same conduct in

determining, pursuant to Note 2(B)(iii), that the purposes of sentencing set forth in section

3553(a)(2) were better achieved by imposing consecutive terms. See D. Ct. Ruling at 20. Thus,

whether pursuant to its analysis of the third listed factor or an unlisted factor, the district court

was permitted to rely on these facts in imposing consecutive terms of imprisonment on counts


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four and nine. Because the district court’s ruling demonstrates that it fulfilled its obligation to

consider the three factors set out in Note 2(B), and because we see no error in its consideration

of any other factors, we conclude that the district court did not abuse its discretion. Cf. United

States v. Cavera, 550 F.3d 180, 197 (2d Cir. 2008) (en banc) (concluding that a potential

sentencing error would be harmless where an “alternative independent ground” supported the

challenged sentence).

       We have considered all of Chibuko’s remaining arguments and find them to be without

merit. For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                                   FOR THE COURT:
                                                   CATHERINE O’HAGAN WOLFE, CLERK




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