United States v. Tajudeen Rabiu
2013 U.S. App. LEXIS 16037
| 7th Cir. | 2013Background
- Rabiu, a bank teller (2003–2007), stole customers’ identifying information; investigators recovered handwritten notes for 86 customers and some fake IDs from his home. 17 account holders suffered temporary pecuniary loss that banks later reimbursed.
- Rabiu pleaded guilty to bank fraud (18 U.S.C. § 1344) and aggravated identity theft (18 U.S.C. § 1028A(a)(1)).
- At sentencing the district court applied the 2010 Guidelines amendment (Application Note 4(E)) that defines a “victim” to include any individual whose means of identification was “used unlawfully or without authority,” and concluded the offense involved 50+ victims, triggering a 4-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B).
- Rabiu argued application of the 2010 guideline violated the Ex Post Facto Clause and, alternatively, that “used” requires active employment of the identification (so he had fewer than 50 victims).
- The district court applied the 4-level increase, calculated offense level 26 (63–78 months guideline range), but stated on the record it would have imposed the same sentence even under the more lenient calculation; the court imposed 102 months (78 + 24 consecutive).
Issues
| Issue | Plaintiff's Argument (Rabiu) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether applying the 2010 Guidelines amendment violated the Ex Post Facto Clause | Application of the post‑offense amendment that expands “victim” increases Rabiu’s guideline range and violates the Ex Post Facto Clause | Demaree and other precedent permit using the current Guidelines; the broader definition properly counts victims | Peugh v. United States controls that applying a Guideline amendment that increases the range raises ex post facto concerns, but here the error was harmless because the district court expressly said it would impose the same sentence under the older calculation |
| Whether a person’s identifying information is “used unlawfully or without authority” merely by theft/possession (e.g., writing it down and keeping it) or requires active employment | “Used” requires active employment to further the fraud; mere possession or transfer is insufficient, so Rabiu had fewer than 50 victims | Victims are created when information is taken/recorded and retained in furtherance of the scheme; writing it down and taking it home qualifies as “use” | Court adopts the active‑use reading (aligning with Hall and Bailey): mere possession/transfer is not “use.” Rabiu’s conceded figure (~33 used; 17 with actual loss) means fewer than 50 victims. Nonetheless, that error was harmless given the district court’s statement it would impose the same sentence |
Key Cases Cited
- United States v. Demaree, 459 F.3d 791 (7th Cir. 2006) (earlier Seventh Circuit precedent permitting use of current Guidelines)
- Peugh v. United States, 133 S. Ct. 2072 (2013) (holding Ex Post Facto Clause bars sentencing under a Guidelines version promulgated after the offense if it yields a higher sentencing range; harmless‑error instruction)
- Bailey v. United States, 516 U.S. 137 (1995) ("use" requires active employment or implementation, not mere possession)
- United States v. Hall, 704 F.3d 1317 (11th Cir. 2013) (interpreting Application Note 4(E): “use” means active employment of identification; mere theft/transfer without application does not count as use)