In U.S. v. Bonilla, No. 08-112127 (Aug. 18, 2009), the Court – on plain error review after a guilty plea – reversed identify theft convictions, because the indictment was multiplicitous and violative of Double Jeopardy.
The defendant was convicted under both 18 U.S.C. § 1208(a)(7) and 1028(a)(1), which address access device fraud. The Court found that both of the statutes contain "identical" elements. "This is a clear example of one act violating two distinct statutory provisions and therefore violating the protection against double jeopardy."
Turning to the factual record at the defendant’s plea colloquy, the Court found that (without the need to depend on facts outside the record, which the guilty plea would have waived), the same factual information supported both charged offenses.
Bonilla’s time in prison, however, will remain the same. His sentence on the duplicative counts ran concurrent to sentence on the remaining counts.
The Court found no duplicativeness violative of Double Jeopardy in Bonilla’s conviction under § 1028A, because this statute authorized cumulative punishment, by providing for an additional two-year penalty in addition to any term of imprisonment for the underlying offense.
The Court rejected Bonilla’s challenge to the district court’s decision to impose consecutive sentences, noting that the district court has discretion to do so under the Guidelines, and here noted the seriousness of Bonilla’s crimes.