Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:12-CR-00346-JLK-1).
Jessica E. Yates (Bethany A. Gorlin, with her on the briefs) Snell & Wilmer, L.L.P., Denver, Colorado, for Defendant--Appellant.
J. Bishop Grewell, Assistant U.S. Attorney (John F. Walsh, United States Attorney, with him on the brief) Office of the United States Attorney, Denver, Colorado, for Plaintiff--Appellee.
Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.
BACHARACH, Circuit Judge.
Mr. Kefelegne Alemu Worku is an Ethiopian man who entered the United States after assuming the identity of an Eritrean man, Mr. Habteab Berhe Temanu. Using Mr. Berhe's identity, Mr. Worku lived in the Denver area for years and eventually became a U.S. citizen.
Immigration authorities learned that Mr. Worku was using a false identity and suspected that he had tortured Ethiopian prisoners in the 1970s. After an investigation and trial, Mr. Worku was convicted of three crimes:
1. unlawful procurement of citizenship or naturalization,
2. fraud and misuse of visas, permits, and other documents, and
3. aggravated identity theft.
The court sentenced Mr. Worku to 22 years, relying in part on a finding that he had committed these crimes to conceal violations of human rights in Ethiopia.
On appeal, Mr. Worku makes four contentions:
1. The immigration-related convictions violated the Double Jeopardy Clause.
2. The conviction for aggravated identify theft was improper because Mr. Worku had permission to use the identity of Mr. Berhe.
3. The sentence was procedurally unreasonable because (1) there was no evidence that Mr. Worku had come to the United States to conceal violations of human rights and (2) the witnesses identifying him as an Ethiopian torturer had done so because of improperly suggestive photo arrays.
4. The sentence was substantively unreasonable.
We reject these challenges and affirm.
I. Challenges to the Conviction
In the first two contentions, Mr. Worku attacks his conviction for the first time on appeal. Because these contentions were not raised in district court, we confine our review to the plain-error standard. United States v. Burns, 775 F.3d 1221, 1223 (10th Cir. 2014). To establish plain error, Mr. Worku must show an error that is plain, affects his substantial rights, and seriously affects the fairness, integrity, or public reputation of the judicial proceedings. Id. Applying this standard of review, we reject Mr. Worku's challenges to his conviction.
A. Double Jeopardy
Mr. Worku argues that his conviction under Counts 1 and 3 violated the Double Jeopardy Clause. Count 1 was based on 18 U.S.C. § 1425(a) and (b), and Count 3 was based on 18 U.S.C. § 1546(a). These statutes criminalize the fraudulent use of immigration or naturalization documents. 18 U.S.C. § 1425(a), (b) (2006); 18 U.S.C. § 1546(a) (2006).
We must consider these statutes against the backdrop of the Double Jeopardy Clause, which protects a defendant from being punished multiple times for the same offense. United States v. Benoit, 713 F.3d 1, 12 (10th Cir. 2013). Mr. Worku's conviction under Counts 1 and 3 would have violated the Double Jeopardy Clause if
o the conviction under Counts 1 and 3 was based on the same conduct and
o one of the statutes of conviction was a lesser-included offense of the other.
United States v. Morehead, 959 F.2d 1489, 1506-07 (10th Cir. 1992). For the sake of argument, we can assume that Mr. Worku has satisfied the first three prongs of the plain-error test.
But even with these assumptions, we must affirm the conviction on Counts 1 and 3 because Mr. Worku has not satisfied the fourth prong of the plain-error standard. Under this prong, we must affirm when evidence of guilt " on the challenged point is 'overwhelming' and 'essentially uncontroverted.'" United States v. Edeza, 359 F.3d 1246, 1251 (10th Cir. 2004). In our view, the evidence of guilt would have remained overwhelming and essentially uncontroverted even if the charges in Counts 1 and 3 had been more clearly identified with different acts.
Mr. Worku argues that his conviction under Counts 1 and 3 constituted a double-jeopardy violation in part because the two counts were based on the same conduct: misrepresentations in his form for naturalization (N-400 form). But the government contends that Counts 1 and 3 related to different conduct: Count 1 related to misrepresentations in Mr. Worku's form for naturalization (N-400 form), and Count 3 related to misrepresentations in Mr. Worku's application for permanent residence (I-485 form).
According to Mr. Worku, this distinction was blurred in the jury instructions. The instruction for Count 1 referred to lies in Mr. Worku's form for naturalization (N-400 form). But the jury instruction for Count 3 did not refer to any specific documents. Instead, the instruction referred to conduct occurring over a time span that covered both Mr. Worku's form for naturalization (N-400 form) and his application for permanent residence (I-485 form).
For the sake of argument, we can assume that the jury relied on Mr. Worku's form for naturalization (N-400 form) as the basis for finding Mr. Worku guilty under both counts (1 and 3). But even then, the government could easily have cured the alleged error by narrowing the charge in Count 3 to exclude the form for naturalization (N-400 form). See United States v. Goode, 483 F.3d 676, 682 (10th Cir. 2007) (holding that the fourth prong was not satisfied because the alleged error " could have been quickly cured by amending the instruction" if the defendant had raised the issue at trial).
And we can reasonably expect that the government would have modified the charge to avoid the alleged double-jeopardy violation. In closing argument, the government linked Count 3 with the form for permanent residence, indicating an intent to match the counts to different conduct. See, e.g., R., vol. VI, at 377 (" Count 3 is fraud and misuse of visa, permits and other documents. So what's the document? The lawful permanent resident card." ); R. vol. V, at 405-06 (discussing the contents of the form for permanent residence in connection with Count 3).
If the jury instruction for Count 3 had been narrowed to false statements in the form for permanent residence, we know that the jury would have found Mr. Worku guilty of lying in two different documents, constituting two separate acts. In both forms, the defendant stated under oath that his name was " Habteab Berhu Temanu." But the defendant never denied that he had used a false name on both forms.
Without any dispute on this fact, the jury found that Mr. Worku had used a false name. This finding is spelled out in the special interrogatories for Count 1, where the jury found that " the government [had] proved beyond a reasonable doubt that [Mr. Worku] falsely identified himself as 'Habteab Berhe Temanu'" in the naturalization form (N-400). R., vol. I, at 327. Mr. Worku made the same representation in his form for permanent residence (I-485 form). Thus, the jury's finding of a lie in the naturalization form (N-400 form) would have required a finding that Mr. Worku had lied on the form for permanent residence (I-485 form). And a finding that Mr. Worku had lied on the I-485 form would have required the jury to find guilt on Count 3. See R., vol. I, at 255 (the district court's instruction to the jury that 18 U.S.C. § 1546(a) " prohibits someone from knowingly possessing or using a visa or other document required as evidence of an authorized stay or employment in the United States that is falsely made or that was procured by means of a false statement" ).
Under these circumstances, we conclude that the evidence of guilt would have remained overwhelming and essentially uncontroverted even if the two counts had more clearly identified different acts. Thus, Mr. Worku has failed to show that the alleged double-jeopardy violation seriously affected the fairness, integrity, or public reputation of the proceedings, leading us to affirm based on the fourth prong of the plain-error standard. See United States v. Sinks, 473 F.3d 1315, 1320-21 (10th Cir. 2007).
B. Lawful Authority to Assume Another's Identity
Mr. Worku was also convicted of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). The subsection provides:
(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.
18 U.S.C. § 1028A(a)(1) (2006) (emphasis added). Mr. Worku obtained permission to use Mr. Berhe's identity from his children. As a result, Mr. Worku argues that he had " lawful authority" to use Mr. Berhe's identity. We reject the claim under the plain-error standard because the alleged error would not have been obvious.
Mr. Berhe's children approached Mr. Worku, asking him to tell federal authorities that he was their father. Their actual father had developed dementia, and the children feared he could not complete the interview requirements for admission into the United States.
But Mr. Worku has not presented any cases suggesting that the children could lawfully allow another person to use their father's identity. Rather, Mr. Worku has provided cases indicating at most that § 1028A(a)(i) is not violated when someone allows use of his or her own identity. These cases are inapplicable, for Mr. Worku does not allege consent from the person whose identity was used: Mr. Berhe. Thus, even if the district court had erred, the error would not have been obvious. In these circumstances, we conclude that Mr. Worku has not established plain error.
II. Challenges to the Sentence
Mr. Worku raises procedural and substantive challenges to his 22-year sentence. We reject these challenges.
A. Procedural Reasonableness
At sentencing, the court determined that Mr. Worku had committed the underlying crimes to avoid punishment for the violation of human rights in Ethiopia. This determination affected the judge's ...