United States Court of Appeals

For the First Circuit

No. 07-2767

UNITED STATES OF AMERICA,

Appellee,

v.

PEDRO JOSÉ VIDAL-REYES,

a/k/a PEDRO LUIS RODRÍGUEZ,

a/k/a/ PEDRO LUIS RODRÍGUEZ-TRINIDAD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella, Lipez, and Howard,

Circuit Judges.

William W. Fick, Federal Defender Office, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, was on brief for

appellee.

April 3, 2009
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TORRUELLA, Circuit Judge. Defendant-Appellant Pedro José

Vidal-Reyes ("Vidal"), a citizen of the Dominican Republic, pled

guilty to aggravated identity theft under the federal aggravated

identity theft statute, 18 U.S.C. § 1028A, as well as to several

non-predicate counts relating to his attempt to pass himself off as

a United States citizen on a previous occasion. He was sentenced

to a mandatory term of imprisonment of two years on the identity

theft count, followed by fifteen months on the other counts. The

sentencing court indicated that it believed that it lacked

authority under § 1028A to impose a lighter sentence.

Vidal now challenges his sentence, alleging, inter alia,

that the district court erred as a matter of law in finding that it

could not consider the mandatory two-year sentence imposed by 18

U.S.C. § 1028A in assigning a sentence for Vidal's non-predicate

offenses. His challenge raises a question of first impression in

this circuit concerning the extent to which 18 U.S.C. § 1028A curbs

a district court's discretion to take the statute's mandatory

sentence into account when sentencing a defendant on other counts

of conviction.

After careful consideration, we conclude that the

district court erred in determining that it lacked authority to

consider 18 U.S.C. § 1028A's mandatory two-year sentence for

aggravated identity theft in sentencing the defendant for non-
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predicate crimes charged in the same indictment. We therefore

vacate the sentence imposed and remand for resentencing.

I. Background

Vidal pled guilty to all counts. We therefore recite the

facts as contained in the pre-sentence report ("PSR"), sentencing

memoranda, and transcripts of the plea and sentencing hearings.

See United States v. Marks, 365 F.3d 101, 102 (1st Cir. 2004);

United States v. Santos, 357 F.3d 136, 138 (1st Cir. 2004).

Moreover, as Vidal challenges only his sentence, the facts

recounted are limited to those necessary to addressing that claim.

A. Factual Background

The appellant, Vidal, is an illegal alien from the

Dominican Republic who has been residing in the United States under

the assumed identity and identifiers of another individual -- Pedro

Luis Rodríguez –- a United States citizen born in San Juan, Puerto

Rico on September 3, 1964. In July 2002 Vidal applied for a U.S.

passport application under the name "Pedro Luis Rodríguez," listing

that individual's social security number and other personal

identifiers in the application, but appending a photograph of

himself. Vidal was issued a U.S. passport carrying the name "Pedro

Luis Rodríguez," bearing Vidal's photograph.

Around this time Vidal was being investigated by the

Commonwealth of Massachusetts for unrelated state drug offenses for

which he was ultimately charged, convicted and, in 2005, sentenced
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to a four-year and one-day term of imprisonment. Upon Vidal's

arrest and fingerprinting in connection with the drug offense

investigation, authorities discovered Vidal's true identity and

destroyed the fraudulent U.S. passport he had obtained under his

assumed name. Nevertheless, Vidal was not notified that his true

identity had been discovered nor was he charged with any identify

theft or fraud-related crime at that time. The Commonwealth

charged him and incarcerated him for the drug offense in a

Massachusetts correctional facility under the name Pedro Luis

Rodríguez.

Around January 2006, while still incarcerated in

Massachusetts on the state drug offenses, Vidal wrote a letter to

the Department of Health and Demographic Registry in Puerto Rico,

representing himself to be a U.S. citizen and requesting a birth

certificate in the name "Pedro Luis Rodríguez," listing that

individual's social security and date of birth. Vidal later asked

another person, Gloria Frías, to mail the letter for him, and to

attach to it a photocopy Vidal retained of the fraudulent U.S.

passport he had previously obtained. Frías complied with Vidal's

request.

On June 1, 2006, Vidal was interviewed in prison by

agents from the Department of Diplomatic Security. At first, Vidal

told agents that he was Pedro Luis Rodríguez of Puerto Rico. He

ultimately admitted to being a Dominican national by the name of
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José Luis Vidal-Reyes, and to filing fraudulent passport

applications under the name "Pedro Luis Rodríguez".

B. The Original and Superseding Indictments

On December 6, 2006, a federal grand jury returned a

four-count indictment (the "original indictment") charging Vidal

with misrepresentation of a social security account number, in

violation of 42 U.S.C. § 408(a)(7)(B) (Count One); false

representation of U.S. citizenship in violation of 18 U.S.C. § 911

(Count Two); aggravated identity theft in violation of 18 U.S.C.

§ 1028A (Count Three); and false statements on a passport

application, in violation of 18 U.S.C. § 1542 (Count Four). All

the counts charged derived from the events that took place on or

about July 2002 when Vidal first submitted a U.S. passport

application under his assumed name and social security number.

On April 13, 2007, Vidal moved to dismiss the aggravated

identity theft count charged in the original indictment, on the

ground that the aggravated identity theft statute, 18 U.S.C.

§ 1028A, was not enacted until 2004, and thus, its application to

Vidal's 2002 conduct violated the Ex Post Facto Clause of the U.S.

Constitution. Recognizing its error, the government then

superseded the original indictment. In the superseding indictment,

the government changed the factual basis for the aggravated

identity theft charge, renumbered as Count Four, to offense conduct

that took place in 2006. Specifically, the § 1028A count was
 Thus, as amended, the superseding indictment charged defendant 1

with the 2002 misrepresentation of a social security number, 42

U.S.C. § 408(a)(7)(B) (Count One), false representation of U.S.

citizenship in 2002, 18 U.S.C. § 911 (Count Two), false statements

in the 2002 passport application, 18 U.S.C. § 1542 (Count Three),

and aggravated identity theft in 2006, 18 U.S.C. § 1028A (Count

Four).

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amended so as to be based on Vidal's use of false information to

obtain a copy of a United States birth certificate in the name

"Pedro Luis Rodríguez," which Vidal had requested from Puerto Rican

authorities in 2006, while he was incarcerated. Notably, the

alteration of the offense conduct time frame for the aggravated

identity theft count, from events that occurred in 2002 to events

that occurred in 2006, was the only change made to the original

indictment by the superseding indictment. The factual basis for

the additional counts remained Vidal's conduct in July 2002 and no

new charges based on conduct occurring in 2006 were brought.1

Vidal ultimately pled guilty to all four counts charged.

C. Sentencing

In its PSR, the Probation Office calculated Vidal's

Guidelines sentencing range ("GSR") to be 15 to 21 months on Counts

One through Three (based on a total offense level of 12 and a

criminal history category of 3). The PSR further stated that, for

Count Four, a "consecutive term of 2 years is mandated by statute."

Vidal submitted objections to the PSR and filed a

sentencing memorandum with the district court. A sentencing

hearing was held on November 7, 2007. In his submissions and at
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the hearing, Vidal did not challenge the probation officer's

calculation of the GSR, but instead requested a below-GSR sentence

of one day on Counts One, Two and Three, followed by the mandatory

two-year term on Count Four. Vidal's position was that this total

sentence of two-years and one day would be, under 18 U.S.C. § 3553

(a), "sufficient, but not greater than necessary, to comply with

the purposes [of sentencing]."

Vidal argued that the substantial variance from the GSR

he requested on Counts One through Three was justified because a

GSR sentence (15 to 21 months) would be "excessive" when combined

with the consecutive mandatory two-year sentence to be imposed on

Count Four. This was especially true when compared to the types of

sentences that persons who traffic in false documents, rather than

mere end-users like Vidal, usually receive. Vidal further argued

that a variance was justified in order to take into account such

factors as the delays in the case (including the government's

charging error) that precluded him from serving a greater portion

of his federal sentence concurrently with his state sentence and

the fact that after completing his sentence Vidal would likely be

held in immigration detention for a substantial period awaiting

deportation.

The government recommended a fifteen-month sentence on

Counts One, Two and Three -- the bottom of the applicable GSR -- to

run consecutively with the two-year term mandated by statute for
 18 U.S.C. § 1028A, in relevant part, states: 2

(a) Offenses

(1) In general – Whoever, during and in

relation to any felony violation enumerated in

subsection (c), knowingly transfers,

possesses, or uses, without lawful authority,

a means of identification of another person

shall, in addition to the punishment provided

for such felony, be sentenced to a term of

imprisonment of 2 years.

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Count Four. In response to Vidal's request that the district court

downwardly vary from the GSR and impose only a one-day sentence on

Counts One through Three in order to make the total sentence

reasonable, the government argued that doing so would be

impermissible based on the language of the aggravated identity

theft statute. Specifically, the government took the position 2

that the statute, at § 1028A(b)(3), prohibited the court from

"tak[ing] into account" the two-year statutory minimum for

aggravated identity theft when sentencing a defendant for other

counts of conviction. See 18 U.S.C. § 1028A(b)(3) (quoted infra at

section II.C.). Moreover, the government argued that the statute,

at § 1028A(b)(2), prohibited running any part of the two-year

mandatory sentence concurrently with any other sentence, and that

doing as Vidal proposed would be an "end run around the language of

the statute."

Vidal responded that § 1028A(b)(3)'s prohibition on

considering the mandatory two-year term when sentencing a defendant

on other counts, by its terms, only applied where those other
 Vidal further argued that, whatever the effect of § 1028A, the 3

court must take into account his arguments for downward variance

from the GSR in determining the appropriate sentence on Counts One

through Three.

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counts were predicate felonies underlying the aggravated identity

theft conviction. In this case, Vidal maintained, because the 2006

conduct underlying his aggravated identity theft count was never

charged, § 1028A(b)(3) did not apply. Thus, according to Vidal, 3

the court was free to take the two-year mandatory sentence for

Count Four into account in sentencing Vidal on the non-predicate

counts.

The court adopted the government's recommendation and

sentenced Vidal to a term of 15 months on Counts One through Three,

followed consecutively by a two-year term on Count Four. Though

the court expressed a desire to impose a lower sentence, it thought

itself precluded from doing so. It explained its reasoning as

follows:

I am going to sentence you to the

recommendation that has been made by the

government in this case. And I want you to

understand, for defense counsel's purposes, I

don't feel I have the authority to adopt your

recommendation. So if I had the authority, I

thought I had the authority, I would conclude

that a two-year sentence as a cumulative

effect would be the appropriate sentence here.

Not too much, not too little but just right.

But I don't believe I can do what you have

asked me to do. So having said it that way,

you have got an appealable issue I think and

whatever happens happens. But that is -- I

think the government's advice to me on this
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issue is the correct advice and that is why I

am following the recommendation.

Vidal filed a timely notice of appeal.

II. Discussion

In this sentencing appeal defendant argues that the

district count erred for two reasons, either of which justify

remand for resentencing: (1) that the district court erred as a

matter of law in holding that it could not take into account the

mandatory sentence imposed under 18 U.S.C. § 1028A in assigning a

sentence for Vidal's other non-predicate offenses; and (2) that,

whatever the effect of § 1028A, the district court erred in failing

to grant a downward variance from the GSR on the non-1028A

offenses. Because we accept Vidal's first argument and vacate and

remand for resentencing on that ground, we need not reach Vidal's

second claim regarding the reasonableness of his 15-month sentence

for the non-1028A offenses. See United States v. Rodríguez, 527

F.3d 221, 231 (1st Cir. 2008) (reasoning that because court vacated

defendant's sentence and remanded for resentencing, it need not

reach defendant's alternative argument, which challenged the

substantive reasonableness of sentence); United States v. Reccko,

151 F.3d 29, 34 n.3 (1st Cir. 1998) (concluding that because remand

for resentencing was already required based on finding of one

sentencing error, court need not address defendant's alternative

claim of sentencing error).
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A. Standard of Review

This court reviews de novo questions of statutory

interpretation that bear on sentencing. United States v. JacaNazario, 521 F.3d 50, 56 (1st Cir. 2008). As the effect of 18

U.S.C. § 1028A upon a district court's sentencing discretion "is

purely a question of statutory interpretation . . . the [district]

court's answer to it engenders de novo review." See United States

v. Caraballo, 552 F.3d 6, 9 (1st Cir. 2008).

B. Mandatory Sentence as Grounds for Variance

Before assessing the extent to which 18 U.S.C. § 1028A

altered the district court's authority to consider the effect of a

mandatory sentence as grounds to vary downwardly from the

guidelines on other counts of conviction, we will begin by noting

the extent of that authority absent statutory intervention.

Vidal cites United States v. Webster for his proposition

that a sentencing court's discretion to take a mandatory sentence

into account is "long-acknowledged in the law of this Circuit and

reinforced by recent Supreme Court sentencing jurisprudence." See

54 F.3d 1 (1st Cir. 1995). In Webster we concluded that:

[I]n departing from a guideline sentence the

district court is free to exercise its own

judgment as to the pertinence, if any, of a

related mandatory consecutive sentence. Should

the district court think that the latter has

some role along with other factors in fixing

the extent of a guideline departure in a

particular case, that is within its authority;

and should that court decline to consider the

mandatory minimum in fixing the other
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sentence, that too is within its authority.

For this court to decide upon the ingredients

of a departure one by one would go very far

toward defeating discretion.

Id. at 4. However "long-acknowledged" such discretion may be, it

is clear that such discretion exists following the fundamental

revival of discretion in sentencing accomplished by the Supreme

Court's decision in United States v. Booker, 543 U.S. 220 (2005)

and its progeny. See United States v. Taylor, 532 F.3d 68, 69 (1st

Cir. 2008) (noting that the Supreme Court's decisions in Gall v.

United States, 128 S. Ct. 586 (2007), Kimbrough v. United States,

128 S. Ct. 558 (2007), and Rita v. United States, 551 U.S. 338

(2007), "make[] clear that in the post-Booker world, district

judges are empowered with considerable discretion in sentencing").

After Booker, the applicable guidelines range is treated merely as

advisory and the sentencing court is free to exercise its

discretion to impose a reasonable sentence outside the guidelines

range that is "sufficient, but not greater than necessary" based on

the factors articulated in § 3553(a). See Rodríguez, 527 F.3d at

227-38 (describing § 3553(a) as a "tapestry of factors, through

which runs the thread of an overarching . . . parsimony principle"

that "instructs district courts to impose a sentence sufficient,

but not greater than necessary to accomplish the goals of

sentencing" (internal quotation marks & citation omitted)). Thus,

to the extent that a mandatory term of imprisonment reasonably
 The effect of a mandatory consecutive sentence certainly bears 4

upon the § 3553(a) factors to a certain extent. Most obviously,

the total amount of time a defendant will spend incarcerated due to

the effect of a mandatory consecutive sentence inherently

implicates the goal of incapacitation, i.e. "the need for the

sentence imposed . . . to protect the public from further crimes of

the defendant." 18 U.S.C. § 3553(a)(2); see also United States v.

Franklin, 499 F.3d 578, 587 (6th Cir. 2007) (Moore, J. concurring)

("The § 3553(a) factors require the district court to give at least

some consideration to the total amount of time that a defendant

will spend in prison.").

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bears on those relevant factors, it remains, absent legislation to 4

the contrary, within the sentencing court's discretion to take it

into account. See Rodríguez, 527 F.3d at 230 ("[A]bsent an

unambiguous congressional directive barring sentencing courts from

considering [a particular factor], a sentencing court can include

that datum in its sentencing calculus, as long as the court grounds

its rationale in the complex of factors enumerated in 18 U.S.C.

§ 3553(a)"). The issue then, is whether the language of 18 U.S.C.

§ 1028A curtails that discretion.

C. Effect of 18 U.S.C. § 1028A

The federal aggravated identity theft statute, 18 U.S.C.

§ 1028A, imposes a mandatory two-year term of imprisonment. 18

U.S.C. § 1028A(a)(1). That mandatory term is to be added to the

sentence imposed for "any felony violation enumerated in subsection

(c)" of the statute, if, "during and in relation to" that felony,

the perpetrator "knowingly transfers, possesses, or uses, without

lawful authority, a means of identification of another person."

Id. Among the felonies enumerated in the relevant subsection are
 We note that "[t]he only exception to this statutorily mandated 5

rule [requiring that all other sentences run consecutively to a

sentence under § 1028A] grants a district court discretion to run

additional § 1028A sentences imposed at the same time concurrently

with each other." United States v. Lee, 545 F.3d 678, 680 (8th Cir.

2008) (citing 18 U.S.C. § 1028A(b)(4))(emphasis added).

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those that violate 18 U.S.C. § 911, relating to false personation

of U.S. citizenship, and 42 U.S.C. § 408, relating to

misrepresentation of a social security number. 18 U.S.C. § 1028

A(c)(2) & (11).

In addition to imposing a mandatory two-year sentence for

violations of the statute, 18 U.S.C. § 1028A contains several

provisions dictating how that sentence must be imposed. Two of

these are central to the issues before us in this appeal. First,

section (b)(2) requires that:

[N]o term of imprisonment imposed on a person

under [it] shall run concurrently with any

other term of imprisonment imposed on the

person under any other provision of law.

18 U.S.C. § 1028A(b)(2) (emphasis added). Second, section (b)(3) 5

provides that:

[I]n determining any term of imprisonment to

be imposed for the felony during which the

means of identification was transferred,

possessed or used, a court shall not in any

way reduce the term to be imposed for such

crime so as to compensate for, or otherwise

take into account, any separate term of

imprisonment imposed or to be imposed for a

violation of this section.

18 U.S.C. § 1028A(b)(3) (emphasis added).
 While no one disputes that Counts One through Three were not 6

predicates for Vidal's § 1028A Count, this may be somewhat

obfuscated on these facts, as the "unrelated" counts would actually

be predicate offenses if not for the temporal disparity between

their commission and the commission of the aggravated identity

theft charged. Nevertheless, the indictment is abundantly clear

that the offenses underlying the § 1028A count are offenses that

took place in 2006, while other counts are based on conduct that

took place in 2002. Thus, the latter cannot be predicates for the

former.

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As shown above, the language of the statute, at

§ 1028A(b)(3), clearly prohibits a sentencing court from taking

into consideration § 1028A(a)(1)'s mandatory two-year term for

aggravated identity theft to reduce the sentence that it would

otherwise impose when sentencing a defendant for predicate offenses

underlying the aggravated identity theft conviction, i.e. "the

felony during which the means of identification was transferred,

possessed or used." Id.; see also United States v. Omole, 523 F.3d

691, 699 (7th Cir. 2007) (holding that had the sentencing judge

"even slightly factored" § 1028A's mandatory two-year sentence into

his decision to lean toward a lighter sentence on predicate wire

fraud counts "he would have violated 18 U.S.C. § 1028A(b)(3)"). It

is undisputed, however, that in this case the court never had

occasion to impose a sentence for any "felony during which the

means of identification was transferred," because the 2006

predicate offenses underlying Vidal's aggravated identity theft

conviction were never charged. Rather, all counts charged, with 6

the exception of Count Four, related to Vidal's 2002 conduct.
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Thus, the question raised in this appeal, which is one of first

impression, is whether § 1028A similarly curbs the sentencing

court's discretion to take the two-year mandatory sentence for

aggravated identity theft into account in sentencing a defendant

for other non-predicate counts of conviction charged in the same

indictment.

In interpreting the meaning of the statute, our analysis

begins with the statute's text. United States v. Godin, 534 F.3d

51, 56 (1st Cir. 2008) ("Our interpretive task begins with the

statute's text"); see also Carcieri v. Salazar, 129 S. Ct. 1058,

1063 (2009). "If the meaning of the text is unambiguous our task

ends there as well." Godin, 534 F.3d at 56; see also Carcieri, 129

S. Ct. at 1063-64 (noting the "settled principle[]" that where "the

statutory text is plain and unambiguous" the court "must apply the

statute according to its terms"). "If the statute is ambiguous, we

look beyond the text to the legislative history in order to

determine congressional intent." Godin, 534 F.3d at 56. "'A

statute is ambiguous only if it admits of more than one reasonable

interpretation.'" Id. (quoting Gen. Motors Corp. v. Darling's, 444

F.3d 98, 108 (1st Cir. 2006)).

Vidal argues that the unambiguous text of 18 U.S.C.

§ 1028A(b)(3) only bars a court from taking into account the

mandatory two-year sentence for aggravated identity theft to reduce

the sentence "for the felony during which the means of
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identification was transferred, possessed or used," i.e. for

predicate felonies only. Nothing in the statute, however, says

that district courts may not take the mandatory two-year sentence

into account when sentencing for non-predicate offenses. According

to Vidal, absent an express prohibition in the text of the statute,

courts retain their authority to take the mandatory term into

account. We agree.

The government asks us to look beyond the express

language of 18 U.S.C. § 1028A(b)(3) to other indicators of

congressional intent which, it argues, necessitate a contrary

interpretation of the statute. Because we find that the "the plain

language of the statute unambiguously reveals its meaning, and the

revealed meaning is not eccentric," we "need not consult other aids

to statutory construction." United States v. Meade, 175 F.3d 215,

219 (1st Cir. 1999); see also Carcieri, 129 S. Ct. at 1065

(overturning an interpretation of a term in the Indian

Reorganization Act ("IRA") as contrary to the plain language of

that statute). Our inquiry could stop here, as Vidal argues it

should. Nevertheless, "[f]rom time to time . . . courts (perhaps

manifesting a certain institutional insecurity) employ . . .

secondary sources as a means of confirmation." Meade, 175 F.3d at

219 (collecting sources). In an abundance of caution, we follow

suit.
 18 U.S.C. § 924(c) imposes an additional prescribed term of 7

imprisonment, over and above that imposed on the underlying

offense, upon a defendant who "during and in relation to any crime

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The government first argues that evidence of

congressional intent gleaned from other provisions in the statute

and the statute's legislative history compel the conclusion that

Congress intended district courts to first independently determine

a reasonable sentence for all other charged offenses, without

regard to the mandatory sentence for aggravated identity theft, and

then add the mandatory two-year sentence to the total. The

government principally relies on § 1028A(b)(2), which prohibits the

sentence for aggravated identity theft to run concurrently "with

any other term of imprisonment imposed on the person under any

other provision of law." 18 U.S.C. § 1028A(b)(2) (emphasis added).

This provision, the government argues, evinces clear congressional

intent that the penalty for aggravated identity theft be

consecutive to any other sentence imposed. According to the

government, to reduce any other sentence so as to lessen the impact

of the mandatory minimum would be to undercut the clear mandate of

§ 1028A(b)(2).

To further support its construction of 18 U.S.C.

§ 1028A(b)(2) as barring the reduction of any other sentence to

compensate for the mandatory minimum, the government relies on

precedent interpreting similar language in 18 U.S.C. § 924(c), a

statute on which, it argues, § 1028A was modeled. That statute 7
of violence or drug trafficking crime . . . uses or carries a

firearm." 18 U.S.C. § 924(c)(1)(A). There is evidence that 924(c)

influenced the drafting of § 1028A. See Identity Theft

Investigation and Penalties: Hearing on H.R. 1731 Before the H.

Subcomm. on Crime, Terrorism, and Homeland Security, 108th Cong.

(2003), 2004 WL 576606 at *4 [hereinafter Hearings] (statement of

Timothy Coleman, Counsel to the Assistant Attorney General) (noting

that the structure of § 1028A's penalty scheme is modeled on the

one used in 18 U.S.C. § 924(c)).

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contains a provision stating that "no term of imprisonment imposed

on a person under [it] shall run concurrently with any other term

of imprisonment imposed on the person." 18 U.S.C.

§ 924(c)(1)(D)(ii). The government cites United States v.

Roberson, 474 F.3d 432 (7th Cir. 2007), for the proposition that

courts construing language in the § 924(c) context, which parallels

§ 1028A(b)(2), have interpreted such language to mean that a

district court may not undercut the impact of a mandatory

consecutive sentence by reducing other portions of a defendant's

sentence. See id., 474 F.3d at 436 (reasoning that "to use the

presence of a section 924(c)(1) add-on to reduce the defendant's

sentence for the underlying crime would be inconsistent with

Congress's determination to fix a minimum sentence for using a

firearm in a crime of violence").

We find the government's argument unpersuasive and the

case law interpreting § 924(c) easily distinguishable. First,

§ 1028A and § 924(c) have significant differences. See Meade, 175

F.3d at 219 ("[P]recedent teaches that the case for construing one

statute in a manner similar to another is weakest when the two have
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significant differences . . ."). Specifically, § 924(c) does not

contain any provision that parallels § 1028A(b)(3), and thus no

plain text bearing directly on the question of when the mandatory

term can be taken into account by sentencing courts. Accordingly,

courts analyzing § 924(c)(1)(D)(ii), that statute's consecutive

sentence provision, were not required to reconcile their

interpretations of that provision with another statutory provision

expressly restricting sentencing courts from taking the mandatory

sentence into account when imposing a sentence for predicate

felonies only. In contrast, for us to read § 1028A(b)(2) as

barring the consideration of the statute's mandatory sentence in

imposing a sentencing on all other counts would essentially render

§ 1028A(b)(3) superfluous, as there would be no purpose in Congress

further specifying therein that this restriction applies to

predicate counts. See Carcieri, 129 S. Ct. at 1066 (stating that

a court is "obliged to give effect, if possible, to every word

Congress used" (citation omitted)); Alaska Dep't. of Envtl.

Conservation v. EPA, 540 U.S. 461, 489 n.13 (2004) (discussing the

"cardinal principle of statutory construction that a statute ought,

upon the whole, to be so construed that, if it can be prevented, no

clause, sentence, or word shall be superfluous, void, or

insignificant" (internal quotation marks & citation omitted)).

Second, those decisions reading into the language of

§ 924(c)(1)(D)(ii) a bar on considering the mandatory term in
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sentencing on other counts of conviction have only applied such a

prohibition to sentencing for predicates of the § 924(c) offense.

See, e.g., Roberson, 474 F.3d at 436 (holding that § 924(c)

mandatory sentence could not be taken into account to reduce

sentence for predicate robbery in which firearm was used);

Franklin, 499 F.3d at 586 (same). The government fails to cite,

and we are not aware of, a § 924(c) case that has prohibited

consideration of a mandatory sentence in the context of sentencing

non-predicate offenses. Thus we would read the § 924(c) line of

cases to support, at most, the presence of an implied sentencing

limitation in § 924(c) that mirrors the express sentencing

limitation in the text of § 1028A(b)(3), which applies to predicate

offenses only.

Morever, the government relies heavily on the consecutive

sentence requirement in § 1028A(b)(2) to support its claim that

Congress intended a "real" mandatory sentence, not one that is

watered down by reductions to sentences on accompanying counts of

conviction. However, we are convinced that, to the extent that the

presence of § 1028A(b)(2) in the text of the aggravated identity

theft statute provides any indication of what Congress intended

§ 1028A(b)(3) to mean, it bolsters Vidal's interpretation. This

conclusion comes by way of the expresio est exclusio alterius

canon, a doctrine of statutory construction resting on a

presumption that Congress acts carefully and deliberately in
 See also Carcieri, 129 S. Ct. at 1066. In Carcieri the court 8

cited language similar to that in Councilman to conclude that where

Congress used the phrase "now or hereafter" in one part of the IRA

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including terms in one part of a statute and omitting them in

another. See United States v. Councilman, 418 F.3d 67, 73 (1st

Cir. 2005) ("'[W]here Congress includes particular language in one

section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.'" (quoting

Russello v. United States, 464 U.S. 16, 23 (1983)). Comparing the

language of § 1028A(b)(2) with the language of § 1028A(b)(3) sideby-side, in § 1028A(b)(2) Congress specifically stated that

§ 1028A's mandatory term of imprisonment must run consecutively to

"any other term of imprisonment" imposed "under any other provision

of law." 18 U.S.C. § 1028A(b)(2) (emphasis added). In contrast,

§ 1028A(b)(3)'s bar on taking the mandatory sentence into account

is only applied with respect to sentences "for the felony during

which the means of identification was transferred, possessed, or

used." 18 U.S.C. § 1028A(b)(3). The conspicuous inclusion of the

"any other provision of law" language in § 1028A(b)(2), coupled

with its omission in § 1028A(b)(3), further demonstrates that if

Congress had intended to extend § 1028A(b)(3)'s restriction on

district courts' sentencing discretion to sentencing for offenses

under "any other provision of law," rather than for predicate

felonies only, it would have explicitly said so.8
but only "now" in the challenged provision (§ 479), the use of the

word "now" in § 479, without the accompanying phrase "or

hereafter," provided further textual support to the court's

conclusion that § 479 refers solely to events contemporaneous with

the Act's enactment. Id. It reasoned that "the statutory context

makes clear that 'now' does not mean 'now or hereafter'" and that

"[h]ad Congress intended to legislate [a contrary definition], it

could have done so explicitly, as it did in [the other provisions],

or it could have omitted the word 'now' altogether." Id.

-23-

The government also relies on the legislative history of

the aggravated identity theft statute to support its contention

that Congress intended the mandatory sentence under § 1028A to

apply "in addition to" the sentence for any other crime, predicate

or not. According to the House Report, § 1028A was enacted to

address Congress's concern that identity thieves under prior law

would often receive short prison sentences or be sentenced to

probation and afterwards "go on to use false identities to commit

much more serious crimes." H.R. Rep. No. 108-528, at 3 (2004),

reprinted in 2004 U.S.C.C.A.N. 779, 780. Thus, the provisions in

§ 1028A(b) were enacted to "ensure the intent of this legislation

[was] carried out." Id. at 10, 2004 U.S.C.C.A.N. at 786; see also

Godin, 534 F.3d at 62 (Lynch, C.J., concurring) (explaining that

the language of § 1028A "shows how serious Congress was about

increasing the mandatory sentence" because it "expressly cuts off

most of the mechanisms through which such a sentence could be

reduced").

Nevertheless, the legislative history cited by the

government only shows that Congress, in passing § 1028A, intended
-24-

to enhance criminal penalties for identity theft. Our

interpretation, however, is not inconsistent with that purpose.

Congress could have reasonably chosen to enhance penalties for

identity theft by creating a mandatory sentence for its commission,

requiring that this mandatory sentence not be used to reduce the

sentence for predicate offenses, but also making a reasoned

judgment that this restriction on a sentencing court's discretion

need not extend to sentencing for unrelated crimes. In fact, after

examining the legislative history, we are convinced that this

history supports Vidal's interpretation of the statute by

demonstrating Congress's particular concern about identity theft in

the commission of predicate felonies. For example, in testimony

before the House Judiciary Committee, counsel to the Assistant

Attorney General explained:

[I]dentity theft . . . is an entirely

derivative offense, in that it is virtually

always committed in connection with some other

crime. The Sentencing Guidelines, however, are

generally designed and intended to be . . .

charge-neutral: . . . in other words, the

sentence depends on the underlying . . .

relevant conduct . . . and not on the

particular offense charged in the indictment.

Thus, the Guidelines will generally ignore the

fact that two offenses have been charged (a

derivative offense and a predicate offense);

the same sentence would be imposed in such a

case as would be imposed even if only the

predicate offense had been charged.

Consequently, application of the Guidelines

would mean that there would be virtually no

practical advantage to charging the derivative

criminal offense. Prosecutors would have to
-25-

charge more facts, and prove more facts,

without obtaining any additional punishment.

H.R. 1731 avoids this problem through the

structure of its penalty scheme . . . 

Accordingly, H.R. 1731 provides that, if a

person commits aggravated identity theft by

stealing someone's identity in order to commit

a serious federal predicate offense, that

person will be sentenced to an additional two

years imprisonment over and above the sentence

for the underlying offense.

Hearings, supra n.6 at *4-5 (statement of Timothy Coleman, Counsel

to the Assistant Attorney General) (emphasis added); see id.

(noting that "virtually all of the most serious forms of identity

theft involve predicate criminal activity"); see also H.R. Rep. No.

108-528, at 10, 2004 U.S.C.C.A.N. at 785 (explaining that the bill

amends Title 18 so as to provide for a "mandatory consecutive

penalty enhancement of 2 years for any individual who knowingly

transfers . . . the means of identification of another person in

order to commit a serious Federal predicate offense" (emphasis

added)); id. (explaining that "[t]his 2-year enhancement is in

addition to any term of imprisonment for the underlying offense."

(emphasis added)). This testimony reveals that a major concern of

§ 1028A(b)(3)'s drafters was to ensure, by making the sentences

truly cumulative, that prosecutors had an incentive to charge both

the aggravated identity theft violation and the underlying

predicate felony or felonies. While we reiterate that we are not

required to consider these policy concerns, given that we find that

the statute "speaks for itself," Carcieri, 129 S. Ct. at 1066, we
 These facts raise the question of whether the government may 9

permissibly charge aggravated identity theft under § 1028A without

also charging a predicate felony. Our sister circuits have held in

the context of 18 U.S.C. § 924(c) that that statute "does not

require that a defendant be convicted of, or even charged with, the

predicate offense to be found guilty of using or carrying a firearm

in relation to the predicate offense." See, e.g., United States v.

Frye, 402 F.3d 1123, 1127 (11th Cir. 2005). However, we find no

precedent on this issue in the § 1028A context. Given the parallel

language of these two statutes (for text of § 924(c), see supra

n.7) we will assume, without deciding, that § 1028A is subject to

a comparable interpretation. Nevertheless, because Vidal does not

challenge the government's failure to charge the predicate felonies

in this case, we see no reason to decide this question sua sponte.

-26-

nevertheless note that under our reading of the statute, the

government certainly retains the incentive to charge underlying

felonies, and it is as a result of its unexplained failure to do so

that the present appeal arose. This concern with charging 9

incentives, however, is not implicated where other counts charged

in the same indictment are unrelated offenses, for which the

incentive to separately charge already exists. Therefore, while

our holding ultimately rests on the plain text of the statute

rather than its legislative history, we nevertheless find it

telling that the legislative history of § 1028A is consistent with

its text. Specifically, the legislative history demonstrates that

the express distinction drawn by Congress between predicate and

non-predicate offenses in the plain text of § 1028A(b)(3) was

likely no accident, but rather, an intentional act grounded in a

logical basis.
 U.S.S.G. § 5G1.2(a) states, that "the sentence to be imposed on 10

a count for which the statute (1) specifies a term of imprisonment

to be imposed; and (2) requires that such term of imprisonment be

imposed to run consecutively to any other term of imprisonment,

shall be determined by that statute and imposed independently."

-27-

In its final contention, the government argues that

Vidal's reading of § 1028A runs contrary to the Sentencing

Guidelines, which, in the section governing sentencing on multiple

counts of conviction, state that where a defendant is convicted of

an offense subject to a mandatory consecutive sentence, that

portion of the sentence "shall be determined by that statute and

imposed independently." U.S.S.G. § 5G1.2(a) (emphasis added).10

The government interprets the word "independently" as requiring a

district court to arrive at the appropriate sentence for other

counts of conviction without taking into consideration the

mandatory sentence for the counts subject to it. Vidal counters

that the provision does not support the government's argument

because it merely states that the mandatory minimum should be

determined "separately" from the GSR on other counts; not that the

ultimate sentence imposed on other counts cannot take the mandatory

minimum into consideration. We agree.

A better reading of this provision -- one that is

supported by case law -- would be that in requiring that a

mandatory consecutive sentence be determined "independently," this

provision merely specifies that the sentence for counts subject to

a mandatory consecutive sentence should be calculated separately
-28-

from the GSR on other counts. In other words, those counts

involving mandatory sentences should be excluded from the grouping

procedures that would otherwise apply under the guidelines to

compute a GSR for multiple counts of conviction. See, e.g., United

States v. A.B., 529 F.3d 1275, 1276 n.1 (10th Cir. 2008). Vidal,

however, does not contend that the aggravated identity theft count

ought to have been grouped with his other counts of conviction to

determine his GSR. Rather, he argues that after separately

computing the GSR for Counts One through Three, the court had the

authority to take the mandatory term for Count Four into account in

choosing to downwardly vary from the GSR when determining a

sentence for the other Counts. This guideline provision, which, in

any event is merely advisory after Booker, does not detract from

his position.

III. Conclusion

We thus conclude that a district court, in sentencing a

defendant on a 18 U.S.C. § 1028A aggravated identity theft

conviction, is not precluded from taking § 1028A's mandatory

sentence into account in sentencing a defendant on other counts of

conviction charged in the same indictment that are not predicate

felonies underlying the § 1028A conviction. We find that this

interpretation is the only one consistent with the text of the

statute as written, and thus, the only one to which a criminal

defendant ought fairly be submitted. Because the sentencing court
-29-

erroneously concluded that it lacked the authority to credit

Vidal's proposal to do exactly this, we vacate and remand for resentencing. See United States v. Rivera, 994 F.2d 942, 953 (1st

Cir. 1993) (citing United States v. Castiello, 915 F.2d 1, 5-6 (1st

Cir. 1990) for the proposition that a "new proceeding [is] needed

where [the] district court wrongly thought it lacked legal power to

depart [from sentencing guidelines], but not where it simply chose

not to exercise this authority").

Reversed and Remanded.