Opinion
Cause No. IP02-68-CR-1 H/F
November 15, 2002
SENTENCING MEMORANDUM
On November 1, 2002, the court accepted defendant Enrique Garrido-Ortega's guilty pleas to Counts 1 and 2 of the indictment, sentenced the defendant to 70 months imprisonment, and issued a preliminary order of forfeiture. Defendant's sentence presented what appears to be a narrow question of first impression under the Sentencing Guidelines: whether U.S.S.G. § 3D1.2 requires that a conviction for possession of counterfeit alien registration receipt cards under 18 U.S.C. § 1546(a) be "grouped" with a conviction for being found in the United States as an alien previously deported after conviction of an aggravated felony under 8 U.S.C. § 1326(a) and (b)(2). The court found that the two convictions should not be "grouped" under the circumstances of this case, in which the counterfeit charge was based on large-scale trafficking in counterfeit immigration documents for other persons. This memorandum explains the court's reasoning on that issue.
From January to April 2002, the Immigration and Naturalization Service (INS) conducted an investigation of trafficking in counterfeit alien registration receipt cards (better known as "green cards") and counterfeit Social Security cards on the west side of Indianapolis. The investigation showed that defendant Enrique Garrido-Ortega and other persons were manufacturing and selling counterfeit green cards and Social Security cards for about $120 per set.
Upon executing several search warrants at several residences, the INS recovered counterfeiting equipment and supplies and approximately 30 sets of counterfeit documents. From defendant's residence, the INS recovered a typewriter, a laminating machine, and paper and plastic stock suitable for making counterfeit documents. Also, five of the counterfeit green cards that were seized had a fingerprint of defendant rather than a fingerprint of the person whose name and photograph appeared on the card.
One might reasonably wonder about the value — even on the black market — of a counterfeit green card that uses the fingerprint of someone who has as long a criminal and immigration record as this defendant does.
Defendant was arrested and later indicted. Count 1 of the indictment charged him with knowing possession of a counterfeit alien registration receipt card in violation of 18 U.S.C. § 1546(a). Count 2 of the indictment charged him with violating 8 U.S.C. § 1326(a) and (b)(2) by being found in the United States as a person previously deported after conviction for an aggravated felony.
Defendant then entered into a plea agreement with the government under which he agreed to plead guilty to Counts 1 and 2.
The indictment also included a third count charging Garrido-Ortega with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). That charge was dismissed pursuant to the plea agreement.
Under U.S.S.G. § 2L2.1(a), the base offense level for Count 1, the charge for possession of counterfeit green cards, was 11. The court found that defendant was responsible for more than 100 counterfeit documents, so 9 levels were added under § 2L2.1(b)(2(C). The adjusted offense level for Count 1 was 20.
Under U.S.S.G. § 2L1.2(a), the base offense level for Count 2, the illegal reentry charge, was 8. Because the prior felony conviction was a drug trafficking offense with a sentence of more than 13 months, the court added 16 levels under § 2L1.2(b)(1)(A)(i). The adjusted offense level for Count 2 was 24.
The plea agreement acknowledged the parties' dispute as to whether the convictions on Counts 1 and 2 should be grouped together as "closely related counts" under U.S.S.G. § 3D1.2. Defendant argued that the two should be grouped; the government disagreed.
Section 3D1.2 instructs that all counts "involving substantially the same harm shall be grouped together into a single Group." Defendant argues that the two offenses should be grouped together under § 3D1.2(a) or (b), which provide in part that counts involve substantially the same harm when they "involve the same victim and the same act or transaction," or when they involve "the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan."
Application Note 2 teaches in part:
For offenses in which there are no identifiable victims (e.g., drug or immigration offenses, where society at large is the victim), the "victim" for purposes of subsections (a) and (b) is the societal interest that is harmed. In such cases, the counts are grouped together when the societal interests that are harmed are closely related. Where one count, for example, involves unlawfully entering the United States and the other involves possession of fraudulent evidence of citizenship, the counts are grouped together because the societal interests harmed (the interests protected by laws governing immigration) are closely related. In contrast, where one count involves the sale of controlled substances and the other involves an immigration law violation, the counts are not grouped together because different societal interests are harmed. Ambiguities should be resolved in accordance with the purpose of this section as stated in the lead paragraph, i.e., to identify and group "counts involving substantially the same harm."
Thus, under Application Note 2, the decisive issue is whether the two crimes involve harm to the same societal interest.
This case is different from the immigration example of closely related counts in Application Note 2. The example involves illegal entry into the United States and possession of a counterfeit document purporting to show that the defendant's own entry was legal. In this case, however, defendant was trafficking in large numbers of counterfeit immigration and Social Security documents. He and his colleagues were manufacturing counterfeit documents and selling them to many other persons.
In the court's view, the societal interests harmed by the defendant's two crimes are not identical nor so closely related as to require grouping. The illegal reentry statute is designed to protect the nation's borders and to protect Americans from aliens with serious criminal records who are likely to commit more crimes if and when they return to the United States illegally. See United States v. Owolabi, 69 F.3d 156, 166 (7th Cir. 1995) ("the right to police our borders, and expel immigrants who have been convicted of felonies, is essential to the national security and welfare"). The prohibition on counterfeiting immigration documents has partially overlapping but not identical purposes. The counterfeiting statute applies to counterfeit visas, border crossing cards, alien registration receipt cards, and other documents authorizing entry into, or stays, or employment in the United States. 18 U.S.C. § 1546(a). The overlap is evident in the example in the Application Note 2, where the alien who enter the United States illegally does so by using a counterfeit immigration document.
But such counterfeit documents can be used for many purposes, including obtaining illegal employment in the United States and establishing a false identity for a host of purposes. The court can assume that most of those who bought counterfeit documents from defendant and his colleagues are living quiet and relatively law-abiding lives, apart from the fact that they are probably in the United States illegally. The prohibition on counterfeit documents is intended to prevent them from living and working in the United States, not to protect society from further crimes by aliens who already have substantial criminal records.
Also, anyone — whether alien or United States citizen — can violate the prohibition on counterfeit documents.
The practical consequence of the court's decision weighs as a factor in applying § 3D1.2 to deny grouping in this case. Grouping the two charges would mean that the higher of the two offense levels would control the sentence. See U.S.S.G. § 3D1.3(a). Under the circumstances of this case, the defendant's illegal reentry conviction has the higher offense level and would control. As a result, the defendant's guideline calculations would not be affected at all by his trafficking in counterfeit immigration and identity documents.
The practical consequence becomes clearer if one compares this defendant with another alien who illegally reentered the United States after a prior deportation following conviction for an aggravated felony, but who did not traffic in counterfeit immigration documents. If the two charges were grouped, the guideline calculations for the two would be identical. Yet it seems eminently reasonable to impose a more severe sentence on this defendant to punish him for that additional criminal conduct. It seems, to this court at least, unreasonable to apply the guidelines in a way that would effectively disregard this defendant's crime of trafficking in counterfeit immigration documents.
Even if this court has not properly interpreted the guidelines as a matter of law on this grouping issue, this reasoning would support an upward departure on the grounds that the combination of illegal reentry and large-scale trafficking in counterfeit immigration documents presents an aggravating circumstances "of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines. . . ." See 18 U.S.C. § 3553(b).
The decision not to group the defendant's two offenses is consistent with Seventh Circuit precedent, though not dictated by it. In United States v. Owolabi, 69 F.3d 156 (7th Cir. 1995), the defendant had been stopped at the United States border and was found to be in possession of counterfeit securities. He was convicted of attempted illegal reentry after a deportation following a felony conviction, in violation of 8 U.S.C. § 1326, and on two counts of possessing a counterfeit government check and private securities, in violation of 18 U.S.C. § 472 and 513. The district court grouped the two counterfeiting charges together, but did not group the illegal reentry charge with them. The Seventh Circuit affirmed, applying Application Note 2 to § 3D1.2. The court found that society at large was the victim of the illegal reentry crime and the counterfeit government check charge. (Private securities issuers were the potential victims of the other securities crime.) The court reasoned, however, that the immigration laws were intended to control immigration and to police the borders, while counterfeiting laws — at least those applicable to checks, currency, and securities — are "designed to protect the integrity of the Federal Reserve system and its regulation of the national economy." 69 F.3d at 166.
In United States v. Salgado-Ocampo, 159 F.3d 322, 328 (7th Cir. 1998), the defendant was convicted of one count of illegal reentry after a prior deportation following a felony conviction in violation of 8 U.S.C. § 1326(a) and one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5). The district court did not group the two offenses, and the Seventh Circuit affirmed the resulting sentence. The defendant argued that the two offenses were closely related because society at large was the victim of both and because only an illegal alien could violate the two statutes. The Seventh Circuit rejected the argument, following the reasoning of the Ninth Circuit in United States v. Barron-Rivera, 922 F.2d 549, 554 (9th Cir. 1991). The Ninth Circuit had concluded that, although only illegal aliens could violate the two statutes, the two offenses involved such different misconduct that grouping was not appropriate. The Seventh Circuit also found that the societal interests were sufficiently different, though the court was applying a plain error standard. The court explained that § 1326 was designed to enforce immigration laws while § 922(g) was designed to protect society from those determined not qualified to possess firearms. 159 F.3d at 328.
The Seventh Circuit's decision in United States v. Cueto, 151 F.3d 620 (7th Cir. 1998), is also instructive. The defendant was an attorney convicted of three counts of obstruction of justice, among other offenses. The three obstruction counts addressed three different but related court proceedings involving the defendant's illegal gambling operation: (1) a federal civil case that attempted to interfere with an FBI investigation, (2) a federal grand jury investigation, and (3) a federal criminal prosecution. The district court decided not to group the three obstruction charges, and the Seventh Circuit affirmed. The Seventh Circuit recognized that all three counts were for violations of the same statute and that society at large was the only "victim." The appellate court found, however, that the defendant's conduct "invaded three distinct societal interests — the proper functioning of the FBI, the grand jury, and the district court — and each entity has a fundamentally separate and unique governmental function." 151 F.3d at 639. The appellate court found that the district court's determination that distinct societal interests had been harmed was not clearly erroneous. Id.
This case is obviously closer than Olowabi and Salgado-Campo, but the court finds nothing in those decisions that would require grouping in this case.
Also, Cueto, though it is factually distinguishable, lends significant support to this court's distinctions between related societal interests.
Further, this case involves "additional conduct that is not otherwise accounted for by the guidelines." Introductory Commentary to U.S.S.G. Part 3D, fourth paragraph. The guidelines for illegal reentry do not provide a mechanism for taking into account defendant's trafficking in counterfeit immigration documents, and the guidelines for counterfeiting immigration documents do not provide a mechanism for taking into account defendant's status and conduct of illegal reentry. In other words, neither offense is an "offense characteristic" of the other offense, so grouping also is not proper under § 3D1.2(c)
For the foregoing reasons, the court declined to group the two offenses in this case. The result was to add two offense levels pursuant to U.S.S.G. § 3D1.4(a). The court also gave defendant a three level downward adjustment for acceptance of responsibility, for a total adjusted offense level of 23. Defendant's criminal history placed him in Category IV, so the sentencing range was 70 to 87 months. The court sentenced him to 70 months in prison.