Opinion
CAUSE NO. 3:20-CR-49 DRL-MGG
2021-04-19
UNITED STATES of America, Plaintiff, v. Lafiamma ORONA, Defendant.
Luke N. Reilander, Government Attorney, Molly E. Donnelly, Government Attorney, US Attorney's Office, South Bend, IN, for Plaintiff. David Kenton Payne, Braje Nelson & Janes LLP, Michigan City, IN, for Defendant.
Luke N. Reilander, Government Attorney, Molly E. Donnelly, Government Attorney, US Attorney's Office, South Bend, IN, for Plaintiff.
David Kenton Payne, Braje Nelson & Janes LLP, Michigan City, IN, for Defendant.
SENTENCING MEMORANDUM
Damon R. Leichty, Judge
From February through April 2020, Lafiamma Orona conducted an identity fraud operation whereby he stole mail from others and used their personal identification information to forge checks, open credit cards, and create fake identification cards. When arresting him, law enforcement found a loaded weapon, ammunition, drugs, and contraband relating to the operation. Mr. Orona pleaded guilty (without a plea agreement) to all counts of a four-count indictment: possession of stolen mail, 18 U.S.C. § 1708 ; mail fraud, 18 U.S.C. § 1341 ; aggravated identity theft, 18 U.S.C. § 1028(A)(a)(1) ; and unlawfully possessing a firearm as a felon, 18 U.S.C. § 922(g)(1).
SENTENCING GUIDELINES
The court must first calculate the guideline sentence correctly, then decide whether a guideline sentence is the right and reasonable sentence. Nelson v. United States , 555 U.S. 350, 351, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009) ; United States v. Schmidt , 930 F.3d 858, 862 (7th Cir. 2019). The 2018 sentencing guidelines apply because there are no ex post facto concerns. See Peugh v. United States , 569 U.S. 530, 531, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) ; U.S.S.G. § 1B1.11.
A. The Court Overrules Mr. Orona's Objection to the Government's Decision Not to Move for a Third Level of Acceptance of Responsibility.
The government has declined to move for a third-level reduction for acceptance of responsibility. The guidelines authorize a two-level decrease when a "defendant clearly demonstrates acceptance of responsibility for his offense," U.S.S.G. § 3E1.1(a), and an additional one-level decrease if the government files a motion saying "the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently," U.S.S.G. § 3E1.1(b).
The court starts with the provision's plain language. See United States v. Hill , 645 F.3d 900, 907-08 (7th Cir. 2011). The third level presupposes the government's motion. See U.S.S.G. § 3E1.1(b) ("upon motion of the government"). The application notes echo this requirement, saying the government remains in the "best position to determine whether the defendant has assisted authorities in the manner that avoids preparing for trial," so a formal motion must be made at sentencing. U.S.S.G. § 3E1.1 app. n.6. Indeed, Congress added this language requiring the government's motion in 2003 as part of sentencing reform. See Pub. Law 108-21 § 402(g)(2)(B) (2003). The government has broad discretion in this regard. See United States v. Deberry , 576 F.3d 708, 710-11 (7th Cir. 2009).
Though the government exercises broad discretion, it may not act invidiously or unconstitutionally. See United States v. Nurek , 578 F.3d 618, 624-25 (7th Cir. 2009). The application notes say the "government should not withhold such a motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her rights to appeal." U.S.S.G. § 3E1.1 app. n.6. This circuit has elaborated that the government may not withhold a motion under § 3E1.1(b) if its reason for doing so violates the Constitution, see United States v. Davis , 714 F.3d 474, 475 (7th Cir. 2013) (per curiam ), or if its reasons prove "invidious" or "unrelated to a legitimate governmental objective," Nurek , 578 F.3d at 624-25. These "invidious" reasons are those that don't further the interests identified in § 3E1.1, such as the appeal waiver. See U.S.S.G. § 3E1.1 app. n.6.
The government's motion isn't all that's needed. To warrant the third level of acceptance of responsibility, the defendant must "assist[ ] authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty." U.S.S.G. § 3E1.1(b) (emphasis added). The word "or" indicates an alternative, meaning that either the investigation or the prosecution was aided by his notice of intent to enter a guilty plea. The word "by" means that the result occurred through the "medium" or "agency" of the cause specified—that is, effectuated through. Thus, the defendant's timely notification of his intention to enter a guilty plea is the means through which he must aid either the investigation or prosecution of his misconduct.
By , Oxford English Dictionary, https://www-oed-com.ezproxy.lib.ntust.edu.tw/view/Entry/25523?rskey=gVOsCI&result=4&isAdvanced=false#eid (last visited Mar. 8, 2021).
The guideline also requires that the notice of intent to plead guilty "thereby permit[ ] the government to avoid preparing for trial and permit[ ] the government and the court to allocate their resources efficiently." U.S.S.G. § 3E1.1(b) (emphasis added). The word "thereby" means "by means of," meaning that the notice of intent to plead guilty must produce the results specified—in this case three results: the notice must permit (1) the government to avoid preparing for trial and (2) the government to allocate its resources efficiently and (3) the court to allocate its resources efficiently. In short, the crux of § 3E1.1(b) remains the defendant's timely plea—to be precise, his timely notice of his intent to plead guilty. His assistance to the government depends on this act, and it is through this act that he permits the government to avoid expending resources preparing for trial. Still, his notice of his intent to plead guilty isn't the end-all-be-all; it is but the prelude to assisting authorities to investigate or prosecute his misconduct. A plea notice must be timely—and through that the rest must follow.
Thereby , Oxford English Dictionary, https://www-oed-com.ezproxy.lib.ntust.edu.tw/view/Entry/200489?redirectedFrom=thereby#eid (last visited Mar. 8, 2021).
Timeliness is a requirement under § 3E1.1(b), whereas only a factor under § 3E1.1(a), see U.S.S.G. § 3E1.1(a) app. n.1(H), so a defendant may receive credit for clear acceptance under section (a) even if he is denied timely acceptance under section (b).
"In general, the conduct qualifying for a decrease in offense level under subsection (b) will occur particularly early in the case." U.S.S.G. § 3E1.1 app. n.6. This general rule isn't an absolute rule. There are scenarios when a defendant may be on his way to obtaining the third level under subsection (b) but forfeit that privilege because of his conduct later in the case. For instance, one could imagine a defendant filing a one-sentence notice expressing his intent to plead guilty to a charge, thereby helping the government avoid trial expense, only then to withdraw his notice without actually pleading guilty. The government's return to trial preparations and eventual trial would likely preclude this third level, not to mention the other two levels. See U.S.S.G. § 3E1.1. No one could fairly argue that the defendant was entitled to this third level just because he filed a notice and, merely for a time, helped the government avoid the expense of trial. His acceptance of responsibility must persist—and persist through his plea, sentencing hearing, and allocution. See United States v. Ewing , 129 F.3d 430, 436 (7th Cir. 1997) ; United States v. Corral-Ibarra , 25 F.3d 430, 442 (7th Cir. 1994).
Similarly, a defendant who timely notifies the government of his desire to plead guilty and ultimately pleads guilty may permit the government to avoid trial preparations, but it cannot always be said that the defendant thereafter "permit[s] the government and the court to allocate their resources efficiently." U.S.S.G. § 3E1.1(b). This clause cannot be read to refer merely to the government's trial preparations and expense because that is already covered by the prior clause, else one could strike this last clause and not lose any meaning. That isn't what courts do; instead, courts "give effect ... to every clause and word." Setser v. United States , 566 U.S. 231, 239, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012).
Of interest here, though § 3E1.1(a) refers to a defendant's clear acceptance of responsibility "for his offense," § 3E1.1(b) refers to a defendant's timely assistance to authorities in investigating or prosecuting "his own misconduct." This choice of words isn't meaningless. The application notes define § 3E1.1(a) as covering not just the offense, but prohibiting a defendant from "falsely denying any additional relevant conduct for which the defendant is accountable under § 1B1.3," though he needn't volunteer or affirmatively admit that relevant conduct. U.S.S.G. § 3E1.1 app. n.1(A). At minimum then, "misconduct" refers not just to the defendant's offense but his established relevant conduct. The word is likely broader still, but the court won't define its outer bounds when nothing in this case calls for it.
Suffice to say, if a defendant falsely denies relevant conduct for which he is accountable, he makes the government spend its resources proving—and the court's resources determining—the actual scope of his misconduct, giving the government the option to decline a motion for this third level, and giving the court the option to find that he has not timely accepted responsibility within the meaning of § 3E1.1(b). To be sure, the defendant's false denial of relevant conduct may warrant not only the denial of the third level of acceptance but all three levels, though the court considers many other factors in assessing acceptance under § 3E1.1(a). See U.S.S.G. § 3E1.1 app. n.1(A); see, e.g. , Nurek , 578 F.3d at 625 (defendant frivolously contested an obstruction of justice enhancement).
Mr. Orona isn't entitled to force the government to move for this third level for acceptance of responsibility. First, the government hasn't filed a motion, and that isn't because of an invidious or unconstitutional reason. Second, Mr. Orona has falsely denied offense conduct. Third, he has caused both the government and the court to expend rather than to allocate their resources efficiently. The government has acted well within its discretion to withhold a motion for the additional one-level reduction for acceptance of responsibility under § 3E1.1(b).
In fairness, the government paints its decision with too broad a brush. The government refuses to move for this third level because Mr. Orona objected until February 2, 2021, thereby causing the government extra work through sentencing. Two objections proved correct—Mr. Orona's objections to the number of victims and improper grouping of the counts. The court won't penalize a defendant for properly objecting to inaccuracies in the presentence report. See U.S.S.G. § 3E1.1 app. n.1(A). Such pursuit of truth or accuracy should be encouraged, not deterred. The government should likewise be inclined toward this same pursuit of accuracy. To be sure, the defendant's objection to the number of victims didn't change the applicable 10-victim guideline, see U.S.S.G. § 2B1.1(b)(2)(A)(i), but it has foreseeable consequences. A court could reasonably view a fraudulent scheme with 253 victims as vastly different than one with 46 victims under 18 U.S.C. § 3553(a).
The issue today comes down to whether the government can refuse the third level based on Mr. Orona's objection regarding the loss amount. Under the relevant guideline, "loss" means the greater of actual or intended loss. U.S.S.G. § 2B1.1 app. n.3(A). "Actual loss" means the "reasonably foreseeable pecuniary harm that resulted from the offense." U.S.S.G. § 2B1.1 app. n.3(A)(i). That harm includes that which the defendant "knew or, under the circumstances, reasonably should have known, was a potential result of the offense." U.S.S.G. § 2B1.1 app. n.3(A)(iv). "Intended loss" means the "pecuniary harm that the defendant purposely sought to inflict," including that which "would have been impossible or unlikely to occur." U.S.S.G. § 2B1.1 app. n.3(A)(ii).
On December 29, 2020, Mr. Orona argued that the actual loss was less than $6,500 and that the government's intended loss was speculative, thereby warranting no enhancements under U.S.S.G. § 2B1.1(b)(1). See United States v. Radziszewski , 474 F.3d 480, 487 (7th Cir. 2007) (district court properly didn't base intended loss calculation on "a sum ascertained by conjecture"). He maintained this objection through February 2, 2021, even after the government communicated that its view was that he was jeopardizing his acceptance of responsibility.
Mr. Orona says this was solely a legal objection, but not on this record. Before withdrawing his objection, Mr. Orona argued that a treasury check for $105,704.91 couldn't be considered intended loss because he didn't believe that he could have converted the check into actual proceeds. He says his interpretation proved untenable after he reviewed two unpublished, out-of-circuit opinions, but the application notes would seem to have answered that question already. "Intended loss" means the "pecuniary harm that the defendant purposely sought to inflict," including that which "would have been impossible or unlikely to occur." U.S.S.G. § 2B1.1 app. n.3(A)(ii). The lingering question of Mr. Orona's purpose or intent, a factual question, isn't fairly debatable on this record.
Mr. Orona's objection to loss also ignored some 23 other checks at his then-girlfriend's house (Toni Hall). He asserted that the loss amount here was too speculative because he wasn't found in possession of these checks. Notwithstanding any error the government may have made in differentiating between actual and intended loss here, the fact remains that Mr. Orona falsely contested his possession of these checks in Ms. Hall's house and only conceded that he was responsible for the checks in the car. The evidence overwhelmingly shows he possessed the checks in Ms. Hall's home. In the house, law enforcement found the following telltale evidence:
• a loaded magazine with the same caliber ammunition as the ammunition found from the gun at the traffic stop (Tr. 54);
• multiple false IDs with Mr. Orona's photo on them in the house that were identical to IDs found at the traffic stop (Tr. 55);
• a prescription bottle with Mr. Orona's name on it (Tr. 55);
• checkbooks in a Jansport bag that had the same victim's name as those found in the car at the traffic stop (Tr. 55);
• stolen checks with Mr. Orona's name on them and the same type of stamping that the ones from the traffic stop had (Tr. 56);
• another false ID with Mr. Orona's photo in a safe in a bedroom of the house (Tr. 59);
• a Kohl's account statement regarding a credit card with the same name as a victim from the car, but which had Mr. Orona's email address on the statement as opposed to the victim's email address (Tr. 59);
• a journal with personal information on a variety of victims with a stamped name that was the same kind of stamping from the forged checks in the vehicle (Tr. 60);
• additional ammunition of the same type in the car (Tr. 60);
• a statement related to a $6,000 credit card from Meijer that Mr. Orona successfully opened in a victim's name at the house (Tr. 60); and,
• a spray paint outline of a handgun and magazine at the house that corresponded to the handgun and magazine found at the traffic stop (Tr. 62).
The defendant decided to take the position that he was responsible for under $6,500 of loss when the loss reflected just in the 23 checks found in this home exceeded $114,000. That isn't acceptance of responsibility in any sense of the word. His claim was false, and no one could seriously contest that his misconduct here was covered either by actual or intended loss definitions, much less contend that he was just ignorant of what he had stashed there.
To that very point, after his arrest, Mr. Orona called his mother—twice—and directed her to destroy the incriminating things he left at his girlfriend's house. He knew full well what he stored there and that his misconduct encompassed his possession and use of that material. He referred to it as "all my stuff at Toni's." After the search, he bemoaned that the destruction of evidence hadn't occurred sooner. Though a defendant's unsuccessful objection to facts doesn't necessarily establish that he was acting untruthfully, see U.S.S.G. § 3E1.1 app. n.1(A), the circumstances here overwhelmingly indicate that he was.
The government acted within its discretion in declining to move for the third level of acceptance here. See United States v. Mount , 675 F.3d 1052, 1059 (7th Cir. 2012) ; Nurek , 578 F.3d at 624-25 ; Deberry , 576 F.3d at 710. The government's refusal to so move wasn't invidious, nor did it violate the Constitution. See Davis , 714 F.3d at 474 ; Nurek , 578 F.3d at 625. The government was in the best position to determine whether the third level was warranted. See U.S.S.G. § 3E1.1 app. n.6.
Because Mr. Orona falsely contested his relevant conduct, he didn't permit the government (or the court) to allocate resources efficiently, though he timely notified authorities of his intention to plead guilty. See U.S.S.G. § 3E1.1(b). Accordingly, the government ordered his plea transcripts on an expedited basis, assigned federal agents to gather more information on the values of the stolen items, and contacted and began preparing two Indiana state law enforcement officers who would be important fact witnesses at the sentencing hearing. Mr. Orona even requested witness impeachment or Giglio information on both witnesses, and the government began to obtain and produce that information. Giglio v. United States , 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). That was his right of course. But rather than permit the government to avoid the expense of the prior work-up, before these legitimate requests, Mr. Orona exacted a burden on the government. The time the government spent (even carving out what was spent responding to legitimate objections) wasn't inconsequential.
Since February 2, 2021, when Mr. Orona ultimately withdrew his objection prior to sentencing, Mr. Orona has accepted responsibility for the full loss amount. The government agrees he has clearly accepted responsibility today under § 3E1.1(a). In consideration of all the guideline factors, see U.S.S.G. § 3E1.1 app. n.1, and in particular his allocution today, the court agrees that he has clearly accepted responsibility, though for a time not always. The court accordingly awards Mr. Orona a two-level reduction for acceptance of responsibility, but not a third level. The court overrules the objection.
B. Alleged Rule 16 and Brady Violations.
Mr. Orona accuses the government of violating Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Federal Rule of Criminal Procedure 16(a)(1)(B), and the court's discovery order (ECF 14) by not timely turning over evidence that he says was exculpatory. The evidence consists of videotaped interviews of Mr. Orona and Ms. Hall conducted by a Cass County (Michigan) detective on May 12, 2020.
Neither the government nor the United States Postal Inspection Service knew these videotaped interviews existed until December 30, 2020. The government obtained a copy on January 5, 2021 and provided a copy to Mr. Orona on January 6, 2021. The government learned about these interviews when it contacted an Elkhart County (Indiana) detective while investigating the objections to the presentence report, who responded with a report from the Elkhart County Sheriff's Office regarding Mr. Orona's case that discussed the May 12 interviews. The two counties oversaw different aspects of the investigation into Mr. Orona's misconduct.
There was no Brady violation here. To establish one, a defendant must show that evidence is "(1) favorable, (2) suppressed, and (3) material to the defense." United States v. King , 910 F.3d 320, 326 (7th Cir. 2018). The evidence seems favorable to Mr. Orona, at least on the § 3553(a) analysis. Whether the federal government had a duty to obtain these interviews from state authorities, and thus whether the evidence was suppressed, see Kyles v. Whitley , 514 U.S. 419, 437-38, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) ("the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police"), the evidence wasn't material. To be "material," the evidence must result in "prejudice"—a "reasonable probability" that its disclosure would have produced a different outcome. See Harris v. Kuba , 486 F.3d 1010, 1014 (7th Cir. 2007).
Mr. Orona makes no such showing of prejudice. He conceded an earlier disclosure wouldn't have impacted his plea (Tr. 33). He has no new objections to make to the presentence report. He has the taped interviews to use for sentencing. He points to no different outcome on this record. There is accordingly no Brady violation.
Rule 16(a)(1)(B) mandates that the government disclose to the defendant "any relevant written or recorded statement by the defendant if ... [the] statement is within the government's possession, custody, or control." This rule is less broad than Brady , however, and "imposes upon the federal government no duty to obtain documents that are controlled by the state government or police, even if the prosecution is aware of the items." United States v. Hamilton , 107 F.3d 499, 509 n.5 (7th Cir. 1997). The court's discovery order likewise mandates that the government disclose the defendant's recorded statements that are within its "possession, custody or control" (ECF 14 at 1), but that wasn't the case here. Neither the rule nor the order provide any gloss to Brady significant to the outcome here. The court overrules Mr. Orona's objection in this respect.
C. The Court Overrules Mr. Orona's Objections Regarding Paragraphs 5, 6, and 61.
Mr. Orona objects to the description in paragraphs 5 and 6 that the vehicle he was driving when he was arrested was "Orona's car" because he says it belongs to his wife (then girlfriend), and he also objects to paragraph 61's (the addendum says paragraph 59 (see ECF 51 at 10)) assertion that he failed to contact probation officers responsible for his November 2016 forgery offense to begin his probation term upon his release from incarceration in another offense. The court overrules both objections as moot because neither impacts today's sentence. See Fed. R. Crim. P. 32(i)(3)(B).
D. Guidelines Calculation.
That said, the court adopts as its findings ¶¶ 1-144 of the presentence report, albeit correcting the lingering scrivener's error in ¶ 16 to reflect 46 victims rather than 253 victims, and adopting specifically ¶¶ 113-119 concerning Mr. Orona's financial condition and earning ability.
The court applies the grouping rules under U.S.S.G. § 3D1.1. Counts 1 (possession of stolen mail), 2 (mail fraud), and 4 (possessing a firearm as a felon) are grouped together because counts 1 and 2 embody conduct that is treated as a specific offense characteristic in count 4. See U.S.S.G. § 3D1.2(c). The court applies the offense level for count 4 because it is the most serious offense within the group. See U.S.S.G. § 3D1.3(a). Count 3 results in a consecutive statutory minimum sentence under the circumstances here.
For count 4, Mr. Orona starts at level 14. U.S.S.G. § 2K2.1(a)(6)(A). His offense level is enhanced four levels because the firearm had an obliterated serial number, U.S.S.G. § 2K2.1(b)(4)(B), another four levels because he possessed the firearm in connection with another felony offense, U.S.S.G. § 2K2.1(b)(6)(B), and another two levels because he willfully obstructed or impeded the administration of justice, U.S.S.G. § 3C1.1. His clear acceptance of responsibility reduces his final offense level to level 22. See U.S.S.G. § 3E1.1(a).
The sentencing guidelines assess a total of 17 criminal history points against Mr. Orona, including 15 points for the following offenses:
Points Crime & Sentence U.S.S.G. 3 6 years imprisonment for burglary in 4A1.1(a) Elkhart County, Indiana. 3 46 months imprisonment for possession 4A1.1(a) of stolen firearms in the Northern District of Indiana. 2 30 months on electronic monitoring; 199 4A1.1(b); days imprisonment following revocation 4A1.2(k)(1) for theft in Elkhart County, Indiana. 3 2.5 years imprisonment for forgery; 2.5 4A1.1(a) years imprisonment for possession of methamphetamine; 180 days imprisonment for possession of marijuana; and 2.5 years imprisonment for theft (all concurrent) in Elkhart County, Indiana. 2 365 days imprisonment for financial 4A1.1(b) transaction device-stealing/retaining without consent in Cass County, Michigan. 1 18 months (suspended to probation) for 4A1.1(c) fraud in St. Joseph County, Indiana. 1 Fined for malicious destruction of 4A1.1(c); personal property and trespass in Cass 4A1.2(c)(1) County, Michigan.
He receives 2 more points because he committed this offense while under a criminal justice sentence for multiple offenses: 20D02-1609-F6-1068; 20D02-1612-F6-1508; 20D02-1701-F6-10; and 71D08-1611-F6-000980. U.S.S.G. § 4A1.1(d). His criminal history score of 17 puts him well into criminal history category VI.
The guidelines recommend a range of 84 to 105 months for counts 1, 2, and 4, U.S.S.G. chap. 5A, subject to the statutory maximum penalties of 5 years for count 1, 18 U.S.C. § 1708, 20 years for count 2, 18 U.S.C. § 1342, and 10 years for count 4, 18 U.S.C. §§ 922(g)(1), 924(a)(2). Count 3 mandates a 24-month consecutive term. 18 U.S.C. §§ 1028(A), (a)(1) ; see also U.S.S.G. § 2B1.6 app. n.2.
DISCUSSION
The court decides this sentence under 18 U.S.C. § 3553(a) and United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Turning to the statutory factors, the court must arrive at a reasonable sentence: one sufficient but not greater than necessary to satisfy the statute's purposes. 18 U.S.C. § 3553(a).
Mr. Orona conducted an extensive fraudulent operation that, because of the guideline grouping rules, isn't necessarily accounted in full. See 18 U.S.C. § 3553(a)(1). His scheme impacted 46 victims with intended losses conservatively at $226,244. He made fraudulent checks, credit cards, stamp forgers, and false IDs with other people's personal information. He stole mail, including employment records listing dozens of people's social security numbers. He stole property from the mail (e.g., Chanel buttons and collector's items). These fraudulent schemes aren't just about the lost money; they cause true aggravation and angst to the victims as they work to correct the exposure of their personal information. See Identity Theft Res. Ctr., Identity Theft: The Aftermath 2017 10-13 (2017); see also 18 U.S.C. §§ 3553(a)(2)(A), (a)(2)(C).
In executing his scheme, Mr. Orona disguised himself as a mailman. He used technology to evade police detection: he had a cell phone application that allowed him to monitor police radio traffic. He impersonated his victims in phone calls. Though the government identifies 46 victims, Mr. Orona had the personal identifiable information of 253 people. His scheme lasted at least three months, though this reasonably skims only the surface of his criminal activity. This is a conservative picture. Harvesting the personal identifiable information of 253 people takes time and concerted effort. See 18 U.S.C. § 3553(a)(1). Drug addiction may explain the driving force of such a scheme, particularly when it seeks money to finance more drugs, but not all the cognition and planning here.
This wasn't a victimless crime, and Mr. Orona's activities present risks to the public. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A), (a)(2)(C). While often credit card businesses and banks can absorb the monetary costs of stolen identities, these businesses and banks then suffer monetary loss, which inevitably fall back on law-abiding customers in the forms of higher prices. Individual victims expend time, energy, and other resources securing their information. They lose their peace of mind. Fortunately, most victims here didn't suffer any actual losses because law enforcement were able to timely recover the stolen checks and return them to the victims, or attempts to open up new credit cards were rejected by the financing companies, but not all. To that end, the court received two victim impact statements (ECF 50-1, ECF 50-2). One speaks to the violation experienced from the crimes.
Mr. Orona not only committed fraud, but he endangered others, including his minor children. He kept drug paraphernalia in the house. Nearly every corner of the house contained some form of contraband. This is the same house Mr. Orona's kids called home—indeed, his baby slept in the same room where he kept a safe full of stolen checks, credit cards, and driver's licenses. He possessed marijuana, methamphetamine, unprescribed over-the-counter drugs, a gun holster, and a loaded firearm in the same vehicle he transported his kids in. His firearm not only had an obliterated serial number, as accounted for by the guidelines; it was also stolen. See United States v. Schnell , 982 F.2d 216, 220 (7th Cir. 1992) (stolen firearms "pose great dangers"). This is even more concerning when Mr. Orona has stolen firearms in the past. His children lived where he conducted his criminal operation, placing them right in the center of danger. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A).
In sum, the criminal scheme here was expansive and dangerous, both for Mr. Orona's family and the public at large. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(A). Victims at times tried to engage or catch him. His activity reflected disrespect for the law on a broad scale. See 18 U.S.C. § 3553(a)(A). He is more culpable than other defendants who commit the same identity theft or fraud, yet who don't impact as many victims or who aren't also mixing in drugs and illegal firearms. See 18 U.S.C. § 3553(a)(6).
To be sure, he didn't use the firearm here, nor did he commit any violence. His attempts to obstruct justice were ultimately unsuccessful. That said, the court denies Mr. Orona's invitation to treat the two-level obstruction of justice enhancement as overly harsh because Mr. Orona's attempts to obstruct justice occurred a good while after his initial arrest, cf. U.S.S.G. § 3C1.1 app. n.4(D) (indicating conduct occurring "contemporaneously" with arrest might not warrant enhancement), and he tried to obstruct justice by calling his mother more than once asking her to destroy evidence.
Mr. Orona is no stranger to fraud and firearm crimes. Though only 33 years old, his 17 criminal history points extend well into criminal history category VI and could warrant an upward variance. See 18 U.S.C. § 3553(a)(1) ; United States v. Melgar-Galvez , 161 F.3d 1122, 1124 (7th Cir. 1998) (citing United States v. Thomas , 6 F.3d 960, 963 (2d Cir. 1993) (17 criminal history points warranting upward departure)). His criminal history is arguably understated to a degree, as he has had multiple sentencings occur on the same day and thereby received zero points, even though the underlying offenses were serious (ECF 50 ¶¶ 48, 60, 62, 66, 68). See U.S.S.G. § 4A1.2(a)(2)(B). His history is replete with deceitful offenses, including multiple burglaries, thefts, forgeries, and frauds. He has stolen mail (ECF 50 ¶ 59) and fraudulently opened credit cards (ECF 50 ¶ 65) before. He has another federal firearm conviction for possession of stolen firearms. When committing this offense, Mr. Orona was under four other criminal sentences, indicating that court-imposed sanctions have had little effect on his decisions to engage in criminal behavior. His life thus far has been filled with repeated instances of disrespect for the law and evinces a need for a robust sentence to deter him from further crime. See 18 U.S.C. §§ 3553(a)(2)(A), (a)(2)(B). His risk of recidivism remains higher than most—particularly as it concerns fraud and firearms offenses. See United States Sent. Comm'n, Recidivism Among Federal Firearms Offenders 17 (2019) ("Firearms offenders were also rearrested for more new crimes than non-firearms offenders."); United States Sent'g Comm'n, The Past Predicts the Future: Criminal History and Recidivism of Federal Offenders 7 fig. 1 (2017) (offenders with 15 or more criminal history points have an 85.7% rearrest rate). His longest sentence before this crime spree wasn't a lasting deterrent.
His drug addiction doesn't serve to excuse the crimes here. Mr. Orona acted "rationally, calculating and comparing the risks and the rewards before deciding whether to engage in" his criminal activity. United States v. Warner , 792 F.3d 847, 860-61 (7th Cir. 2015). Aside from the need to deter Mr. Orona from future crime specifically, the crimes here call for an appropriate sentence to deter such offenses generally. See United States v. Brown , 880 F.3d 399, 405 (7th Cir. 2018) (white-collar criminals are "prime candidates for general deterrence") (quoting Warner , 792 F.3d at 860 ); see also United States v. Sample , 901 F.3d 1196, 1200 (10th Cir. 2018) ("general deterrence is particularly important in the context of white collar crime"). His incapacitation will help protect the public. See Tapia v. United States , 564 U.S. 319, 325, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011) (incapacitation is a goal of sentencing).
Even after completing a relapse prevention program, Mr. Orona continued abusing illegal substances. See 18 U.S.C. § 3553(a)(1). Mr. Orona grew up in an abusive home where his parents struggled with cocaine and alcohol abuse and his father would leave the house for weeks at a time without anyone knowing where he was. These circumstances likely fostered his own drug dependency. He acknowledges he has extremely serious drug problems and knows it is important for him to get help, which creates hope that he can recover, albeit it will take significant effort on his part. To that end, he has been accepted into the Adult & Teen Challenge Northern Indiana program, "designed to help men transform from being dependent on drugs and alcohol to become free from their control to be productive men in society." That cannot avoid a prison sentence in this case.
Mr. Orona is married with three kids, with whom he stays in regular contact. The court saw pictures and watched videos of Mr. Orona with his family. Many family members and supporters spoke about his good qualities. The court doesn't doubt his love for his children or family. Unfortunately, Mr. Orona and his wife have used methamphetamine together on multiple occasions, and the home served as a base of operation for a great deal of illegal activity—one child even recognizing that, in one conversation, a gun had not been accounted as part of it. The children were in the car when law enforcement arrested Mr. Orona after a firearm and drug implements were tossed out. The children's mother has now been incarcerated, which leaves the children in the care of grandparents who have their own health challenges. That is mitigating to a degree, but not to the varying degree advocated by Mr. Orona.
Mr. Orona recently obtained his GED, for which the court commends him. See 18 U.S.C. § 3553(a)(1). He also appears to have a solid employment history prior to being laid off during the COVID-19 pandemic. His crime here requires a certain degree of intelligence, though also a certain criminality. Our community needs intelligent contributors, not intelligent criminals.
The court has considered prison conditions in light of the COVID-19 pandemic. COVID-19 has affected everyone, both in prison and in society at large. The BOP has remained heroically undeterred in addressing every challenge presented by COVID-19 thus far, and it continues to respond in light of changing CDC guidelines. The pandemic trends downward while vaccinations trend upwards; and, though additional virus strains could change that perspective and seen to an uptick recently, today the pandemic or his incarceration doesn't put Mr. Orona in acute risk. The presentence report indicates that Mr. Orona has no history of physical health problems nor mental health problems. The court doesn't view the pandemic as mitigating or compelling.
As an initial benchmark, the court doesn't just presume that the recommended sentence is reasonable, see Freeman v. United States , 564 U.S. 522, 529, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011) ; Gall v. United States , 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), though the sentencing guidelines pose the best hope, on a national basis, for avoiding unwarranted sentencing disparities here, see 18 U.S.C. § 3553(a)(6) ; United States v. Scott , 631 F.3d 401, 405 (7th Cir. 2011) ; United States v. Boscarino , 437 F.3d 634, 637 (7th Cir. 2006). This is particularly true here given the need for deterrence and public protection. See 18 U.S.C. §§ 3553(a)(2)(B), (a)(2)(C). A variance would not appropriately address these goals.
The court has considered Mr. Orona's allocution before determining his sentence. See, e.g. , United States v. Griffin , 521 F.3d 727 (7th Cir. 2008). His statements reflected a great deal of recognition of the harm he has caused—to the public and his family. His statements also reflected some early growth. He apologized to the victims.
Review of all factors under 18 U.S.C. § 3553(a) persuades the court that in light of the need for the sentence to reflect the seriousness of the offense, to account for the defendant's history and characteristics, to provide just punishment and to promote respect for the law, to protect the public certainly, and given the range recommended by the guidelines, a sentence of 60 months on count 1 and 84 months on counts 2 and 4, served concurrently, and a 24 month sentence for count 3, served consecutively, is sufficient but not greater than necessary to satisfy the statute's purposes. Mr. Orona's steeped addiction, the low out-of-pocket loss here, the rule of parsimony, and the totality of this sentence favors the decision within the guideline range.
For counts 1, 2, and 4, the court may impose a term of supervised release of not more than three years. 18 U.S.C. § 3583(b)(2) ; see U.S.S.G. § 5D1.2(a)(2) (recommending 1-3 years). For count 3, the court may impose a term of supervised release of not more than one year. 18 U.S.C. § 3583(b)(3) ; see U.S.S.G. § 5D1.3(a)(3) (recommending 1 year). The court imposes a term of 2 years each on counts 1, 2, and 4, and imposes a term of 1 year on count 3, all served concurrently. See 18 U.S.C. § 3624(e).
Mr. Orona can't pay the fines recommended by the guidelines even if afforded the most generous of installment payment schedules, so the court imposes no fine. No restitution requests have been received, so the court imposes no restitution. See 18 U.S.C. § 3553A. A special assessment of $400.00 is mandatory. 18 U.S.C. § 3013(a)(2)(A).
SENTENCE
Accordingly, it is the court's judgment that the defendant, Lafiamma Orona, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a total term of 108 months—that is, 60 months on count 1 and 84 months on counts 2 and 4, these terms to run concurrently, followed by a consecutive sentence of 24 months on count 3.
The court recommends that the Bureau of Prisons designate as the place of the defendant's confinement, consistent with his security classification as determined by the Bureau of Prisons, a facility where he may be enrolled in a residential drug abuse (RDAP) program or other appropriate treatment program and where he may be placed as reasonably near to family in Northern Indiana.
Upon release from prison, the defendant will be placed on supervised release for a term of 2 years on counts 1, 2, and 4, and 1 year on count 3—all terms to run concurrently. While on supervised release, he must comply with the terms of supervision set forth in ¶¶ 145-157 of the presentence report, which paragraphs the court incorporates as part of this sentence having made an independent judgment that they should be imposed under 18 U.S.C. § 3583(d). The defendant expressly waived reading of these supervisory conditions.
The court imposes no fine. The defendant must pay to the United States a special assessment of $400.00, which is due immediately.
The court GRANTS the motions to seal (ECF 53 and 58) and GRANTS the government's motion for a final order of forfeiture (ECF 66) and will enter a separate order accordingly.
SO ORDERED.