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Sentencing — harmless error

United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — harmless error

Where it is clear the district court would have imposed the same sentence, even if it hadn’t miscalculated the guideline range, the sentence is affirmed.

“[T]he government’s evidence shows that he possessed identifying information for at least fifty persons but ‘used’ the information of fewer than fifty. (Rabiu puts the number of persons whose identifying information was ‘used’ at thirty-three; the government makes no effort to challenge that number.) The government argued that persons whose identifying information Rabiu stole became ‘victims’ the minute he wrote down the information and took it to his apartment. But the plain language of the application note and the reasoning of Hall compel the conclusion that Rabiu only had possessed the information at that point; he had not actively used it for any purpose. See Hall, 704 F.3d at 1322–23 & n.3. Because his possession of the information was not ‘use,’ the offense did not involve at least fifty victims. If the number was thirty-three, as Rabiu concedes, then under the current version of § 2B1.1(b)(2) he should have received a two-level (rather than four-level) upward adjustment. See U.S.S.G. § 2B1.1(b)(2). If everything else remained constant, Rabiu’s total offense level would be 24, and his imprisonment range would be 51 – 63 months, rather than 63 – 78 months. But because the district court noted it would have given the same sentence despite its error, Rabiu cannot prevail on this argument either.”

Affirmed.

12-3884 U.S. v. Rabiu

Appeal from the United States District Court for the Northern District of Illinois, Guzmán, J., Manion, J.

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