753 F.3d 729
7th Cir.2014Background
- From 2005–2008 Arojojoye organized a multi-year fraud scheme creating fake IDs, fictitious businesses, and mailboxes to open bank and merchant accounts and cash stolen checks and convenience checks.
- He recruited and paid co‑defendants (notably Kormoi and Henderson) to open mail drops and conduct transactions; he also purchased stolen credit card numbers and generated false invoices to receive merchant payments.
- Law enforcement seized extensive evidence from his car at arrest; investigations showed over 15 fictitious businesses, dozens of stolen identities, and losses exceeding $1,000,000.
- Arojojoye pleaded guilty to bank fraud (18 U.S.C. § 1344) and aggravated identity theft (18 U.S.C. § 1028A(a)(1)); remaining counts were dismissed under a plea agreement.
- The PSR applied multiple Guidelines increases (loss > $1,028,818; 50+ victims; sophisticated means; manager/supervisor), yielding an advisory range of 97–121 months; the court imposed 85 months on bank fraud plus a consecutive 24 months for identity theft (total 109 months).
Issues
| Issue | Arojojoye's Argument | Government's/Respondent's Argument | Held |
|---|---|---|---|
| Sufficiency of plea to aggravated identity theft (§1028A) | He did not admit knowing the ID belonged to a real person (Flores‑Figueroa requires knowledge). | Record contains multiple admissions that the identity (Lizel Emborgo) was real and that he possessed her SSN and DOB. | Plea was supported by a factual basis; conviction affirmed. |
| Four‑level enhancement for 50+ victims (U.S.S.G. §2B1.1(b)(2)) | Application of the broader, post‑offense definition violated the Ex Post Facto Clause (Peugh). | Even if newer Guidelines applied, court stated it would impose the same sentence under the older Guidelines, making any error harmless. | Enhancement/error harmless under Peugh/Rabiu; sentence affirmed. |
| Three‑level role enhancement for manager/supervisor (§3B1.1(b)) | He did not supervise others; at most he supplied materials. | He recruited, instructed, paid, and directed at least two co‑defendants (Henderson, Kormoi); scheme involved 5+ participants. | No plain error: enhancement upheld. |
| Attribution of $441,899.03 Navistar loss | That large loss was unforeseeable and undertaken solely by other co‑schemers. | As creator of documents and mailboxes and participant in the joint scheme, the Navistar loss was reasonably foreseeable and attributable. | District court’s loss finding not clearly erroneous; amount attributed to him. |
| Sophisticated‑means two‑level enhancement (§2B1.1(b)(9)(C)) | He contests the enhancement. | He expressly waived/consented to this enhancement in his sentencing submissions. | Waived; alternatively no plain error given extensive, multi‑year, document‑creation scheme. |
Key Cases Cited
- Flores‑Figueroa v. United States, 556 U.S. 646 (Sup. Ct. 2009) (knowledge that identification belonged to another person required for §1028A).
- Peugh v. United States, 133 S. Ct. 2072 (Sup. Ct. 2013) (Ex Post Facto Clause bars retrospective application of Guidelines that increase punishment).
- Rabiu v. United States, 721 F.3d 467 (7th Cir. 2013) (harmlessness when district court states it would impose same sentence under older Guidelines).
- Muratovic v. United States, 719 F.3d 809 (7th Cir. 2013) (plain‑error standard for unchallenged guilty plea on appeal).
- Aslan v. United States, 644 F.3d 526 (7th Cir. 2011) (defendant may be held accountable for co‑schemers’ actions reasonably foreseeable as part of jointly undertaken activity).
- Weaver v. United States, 716 F.3d 439 (7th Cir. 2013) (clarifies application of role enhancements; contrasts mere supplier vs. supervisor).
- Adeniji v. United States, 221 F.3d 1020 (7th Cir. 2000) (foreseeability assessed by cumulative contextual evidence).
- Wang v. United States, 707 F.3d 911 (7th Cir. 2013) (scope of jointly undertaken activity and foreseeability reviewed for clear error).