United States v. Gonzales (163 F. Supp. 3d 1078, 2016)

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendant’s Sentencing Memorandum, filed November 20, 2014 (Doc. 62)(“Senteneing Memorandum”). The Court held a sentencing hearing on December 4, 2014. The primary issues are: (i) whether the Court should impose a 16-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(1), because the intended loss exceeded $1,000,000.00; (ii) whether the Court should impose a 4-level enhancement under § 2Bl.l(b)(2)(B), because the offense involved fifty or more victims; (iii) whether the Court should impose a 2-level enhancement pursuant to § 2Bl.l(b)(10)(C), because the offense involved sophisticated means; (iv) whether the Court should impose a 4-level aggravated role enhancement under § 3Bl.l(a); (v) whether the Court should grant Defendant Jasonn Gonzales a downward departure under § 5H1.3 based on his mental and emotional health, and/or under § 5H1.4 based on his physical condition, including drug or alcohol abuse, or gambling addiction; (vii) whether the Court should grant Gonzales a downward departure or variance based on his cooperation with law enforcement, his post-offense rehabilitation efforts, his “extraordinary” acceptance of responsibility, his educational and vocational skills, his long and steady employment history, his lack of guidance as a youth, or based on the need to avoid unwarranted sentencing disparities; and (viii) what restitution the Court should impose upon Gonzales. Gonzales’ objections to the PSR are sustained in part and overruled in part. The Court sustains Gonzales’ objection to paragraph 71 of the Original PSR, which imposed a 2-level enhancement under § 2Bl.l(b)(ll)(C)(i). The Court also sustains in part Gonzales’ eighth objection — to paragraph 136 of the PSR — to the extent that it varies from the Guidelines. The Court overrules all other objections and denies all requests for a downward departure. The Court will vary, but not as much as Gonzales requested. Finally, the Court has made a diligent effort to avoid any procedural or substantive error.

FACTUAL BACKGROUND

The Court takes its facts from the Pre-sentence Investigation Report (re-disclosed November 25, 2014)(“PSR”), which the United States Probation Office (“USPO”) prepared. The Court will first outline the facts of Gonzales’ offense. The Court will then describe Gonzales’ criminal history, his other personal characteristics, and his education and financial condition.

1. The Offense of Conviction.

From January 2009 to May 2012, Gonzales and co-Defendant Gerald Archuleta, along with other unindicted individuals, took part, in a conspiracy to devise a scheme to defraud and obtain money, specifically unemployment insurance benefits, from the Texas Workforce Commission, Colorado Department of Labor and Employment, and New Mexico Department of Workforce Solutions by means of materially false and fraudulent pretenses and representations and, for the purpose of executing the scheme and artifice, did knowingly cause the United States Postal Service and commercial interstate carrier to move and deliver envelopes containing debit cards by which benefits were paid. See PSR ¶ 5, at 4.

To carry out their scheme, Gonzales and Archuleta fraudulently obtained “names, social security numbers, and dates of birth of individuals without such individuals’ knowledge.” PSR ¶ 6, at 5. Further, “the defendants provided TWC, CDLE, and NMDWS with false and fictitious quarterly reports listing non-existent companies that reflected the names of individual identities as the employees of the fictitious companies.” PSR ¶ 6, at 5. “The defendants would then apply for UI benefits under such individuals’ identities without their knowledge or authority and provide TWC, CDLE, and NMDWS with the names of false and fictitious last employing units (LEUs) and LEU addresses that they controlled.” PSR ¶ 6, at 5. To provide fictitious LEU addresses, Gonzales and Ar-chuleta traveled across state lines for the purpose of opening various post office boxes to use in their scheme. See PSR ¶ 6, at 5. Once these post office boxes were opened, the Defendants reported the fictitious address to receive debit cards containing unemployment insurance benefits to be sent via the United States Postal Service and private commercial interstate carrier. See PSR ¶ 6, at 5. Upon receipt of these debit cards, Gonzales and Ar-chuleta used the debit cards for their own personal use and benefit. See PSR ¶ 6, at 5. The investigation revealed that the defendants opened sixty-one postal office boxes throughout Texas, Colorado, and New Mexico. See PSR ¶7, at 5. The scheme fraudulently used approximately 107 victim identities and was connected to twenty fictitious companies — eleven in New Mexico, seven in Colorado, and two in Texas. See-PSR ¶7, at 5. “The scheme resulted in a total loss of $804,735.73.” PSR ¶ 7, at 5.

2. Gonzales’ Criminal History up to the Offense of Conviction.

Gonzales has two prior criminal convictions. See PSR ¶¶ 80-81, at 22. First, on December 13, 1988, Gonzales was sentenced to an unknown term of probation for indecent exposure in the Superior Court of California — Juvenile Court, Los Angeles. See PSR ¶ 80, at 22. At the time of the referral, on August 16, 1988, Gonzales was sixteen years old. See PSR ¶ 80, at 22. The PSR further states:

Court documents reflect on August 16, 1988, and August 22,1995, the defendant did willfully, unlawfully, and lewdly expose his private parts in a public place where other people were present, offended, and annoyed. .In addition, on August 11, 1998, the defendant solicited another to engage in the same conduct. Four counts for Lewd Conduct and one count of Indecent Exposure were dismissed.

PSR ¶ 80, at 22. Second, on March 9, 1991, when Gonzales was eighteen years old, he was arrested in Utah and charged with: (i) one count of attempted rape; (ii) one count of attempted sodomy/forcible sodomy; and (iii) one count of attempted ■ burglary of a dwelling. See PSR ¶ 81, at 22. The PSR states that, on May 3, 1991, Gonzales was sentenced to fifteen years as to count one, and, as to count three, not more than five years, all to run concurrently. See PSR ¶ 81, at 22. Regarding this conviction, the PSR also states:

The defendant was represented by counsel. The Information reflects that on February 10, 1991, the defendant had sexual intercourse with another who was not his spouse and without her consent. The offense was committed during the course of a burglary, where he caused physical injury to another while attempting to flee. Due to the age of the offense, law enforcement narrative reports were not available. The defendant was not arrested in this matter until March 9, 1991. Additional counts for Rape and Aggravated Burglary were dismissed.

The defendant was released to parole supervision on March 12, 2002. He successfully discharged parole on January 16, 2006. Contact with the New Mexico Adult Probation and Parole Office (provided supervision for Utah through Interstate Compact) reflects the defendant had no violations while on parole and successfully completed Sex Offender Treatment as required. The defendant is required to register as a sex offender annually, for life. H[e] first registered in the state of New Mexico in 2003, and his last registration occurred on August 13, 2014 (Registration # 48714).

PSR ¶ 81, at 22.

The New Mexico Courts Database also reflects that Gonzales was issued citations for speeding on August 8, 2006, January 2, 2013, and September 25, 2013. See PSR ¶ 84, at 23. Gonzales was convicted in two of these matters and received a deferred sentence and fees. See PSR ¶ 84, at 22. The remaining case was dismissed. See PSR ¶ 84, at 22. Finally, Gonzales was arrested on two other occasions. See PSR ¶¶ 87-88, at 23-24. On January 31, 2007, when Gonzales was thirty-four years old, he was arrested and charged for “Patronizing Prostitutes” in Bernalillo County Metropolitan Court in Albuquerque, New Mexico. PSR ¶ 87, at 23. The PSR states that, on June 26, 2007, the case was dismissed, and further explains:

The defendant was represented by counsel. Arrest reports reflect officers observed a known prostitute enter a vehicle driven by the defendant. The vehicle drove multiple back roads before stopping in an empty parking lot. Officers made contact with the defendant, who admitted he agreed to pay the prostitute $30 for fellatio.

PSR ¶ 87, at 23. On April 30, 2011, when Gonzales was thirty-eight years old, he was arrested for “Registration of Sex Offenders Information Required.” PSR ¶ 88, at 24. The PSR lists the agency involved as “Rio Arriba Magistrate Court, Españo-la, NM,” and states that, on March 26, 2014, the case was dismissed. PSR ¶ 88, at 24. Regarding this incident, the PSR further explains: “The defendant was represented by counsel. He was arrested in this matter on July 28, 2011. Contact with the Rio Arriba Magistrate Court revealed that all records in this case were destroyed in 2011. There is no further information available regarding this charge.” PSR ¶ 88, at 24.

3. Gonzales’ Personal Characteristics.

Gonzales was born on July 19, 1972, in Van Nuys, California. See PSR ¶ 90, at 24. Gonzales’ father is employed as a machine operator in parts production. See PSR ¶ 90, at 24. “His mother, with whom he resides, owns the Purple Adobe Lavender Farm and tea room, which deals primarily in lavender plant and product sales.” PSR ¶ 90, at 24. Gonzales’ parents terminated their relationship when he was two-years-old. See PSR ¶ 91, at 24. Gonzales has indicated that his parents’ relationship during his childhood and formative years was “volatile and unhealthy,” because of his father’s abusive behavior. PSR ¶ 91, at 24. Upon his parents’ separation, Gonzales lived with his father for one year, before returning to his mother’s care when he was approximately three-years old. See PSR ¶ 91, at 24. He continued to visit his father, but Gonzales has indicated that the time he spent with his father resulted in psychological and emotional abuse. See PSR ¶ 91, at 24. His father would speak negatively about. his mother and would turn him against her by making him feel guilty for having a good relationship with her. See PSR ¶ 91, at 24. His father would also involve him in arguments with his mother. See PSR ¶ 91, at 24. “Additionally, the defendant indicated his father is habitually unfaithful when he is in a relationship, which he discussed at length with the defendant when he was a teenager.” PSR ¶ 91, at 24.

Gonzales’ relationship with his father deteriorated to the point that they would not have contact for years at a time. See PSR ¶ 91, at 24. Gonzales’ wife reported that Gonzales did not have contact with his father from the time he was eighteen— 1990 — -until approximately 2008. See PSR ¶ 91, at 25. Gonzales currently has contact with his father each month and described their relationship as “okay.” PSR ¶ 91, at 24. Gonzales’ wife stated that Gonzales’ relationship with his father had improved greatly. See PSR ¶ 91, at 25. Gonzales has always had a good relationship with his mother. See PSR ¶ 91, at 24. Gonzales indicated that, despite his father’s conduct, when he was growing up, his parents met all of his economic needs. See PSR ¶ 91, at 24-25. Gonzales’ wife and mother reported that an unknown female baby-sitter sexually abused Gonzales when he was approximately five-years-old. See PSR ¶ 91, at 25. The baby-sitter was in her early twenties and Gonzales’ mother indicated he disclosed the abuse to her about thirty years ago, when he was five-years-old. See PSR ¶ 91, at 25. No charges were filed in the matter. See PSR ¶ 91, at 25.

“Gonzales indicated that his ex-stepmother, Cheryl Hawkins-Smith, age 65, was present during his childhood beginning at age five.” PSR ¶ 92, at 25. She is retired in Santa Clarita, California. See PSR ¶ 92, at 25. Gonzales reported annual contact with her and stated that they maintain a good relationship. See PSR ¶ 92, at 25. Gonzales’ step-father, Roger Inman, was also present in his life beginning at age five. See PSR ¶ 92, at 25. Gonzales currently resides with his mother and Mr. Inman, with whom Gonzales has a good relationship. See PSR ¶ 92, at 25. Gonzales reported three siblings: Mark Gonzales, Jaimee Lainse, and Mike D’Antonio. See PSR ¶ 93, at 25. Gonzales has not had contact with his brother Mark for five years, because of a falling out over his prior criminal history. See PSR ¶ 94, at 25. Gonzales has monthly contact with his sister Jaimee and has had no contact with his step-brother Mike in approximately nine months. See PSR ¶ 94, at 25. Gonzales’ wife indicated that his brother Mike “disowned” him following his felony conviction in 1991. PSR ¶ 94, at 25.

Gonzales was raised in various communities in California. See PSR ¶ 95, at 25. When he was eight years of age, Gonzales relocated to Utah, where he was incarcerated until 2002. See PSR ¶ 95, at 25. Following his incarceration, Gonzales relocated to New Mexico, where he lived in La Mesilla and Española. See PSR ¶ 95, at 25. Gonzales began a relationship with Rhonda Gonzales in December 2005, they were married in 2006, and they settled in Velarde in 2006. See PSR ¶ 96, at 26. “One child was conceived from this relationship, Jordynn Oliva Gonzales, age 7.” PSR ¶ 96, at 26. Jasonn and Rhonda Gonzales separated in January, 2014, and divorce is pending. See PSR ¶ 96, at 26. Ms. Gonzales resides in Velarde with their daughter. See PSR ¶ 96, at 26. Ms. Gonzales is employed as a teacher and is in good health, but their daughter suffers from asthma. See PSR ¶ 96, at 26. Gonzales indicated that he is also the stepfather of Gonzales’ son from a prior relationship, Joshua Gomez, age twenty, whom Gonzales has helped raise since he was eleven-years-old. See PSR ¶ 96, at 26. Ms. Gonzales indicates that her marriage with Gonzales began to dissolve when the investigation for this federal offense began, “as it greatly affected her ability to trust the defendant.” PSR ¶ 96, at 26. Gonzales “began residing intermittently with his mother from March 2013, until January, 2014, when he moved permanently to his mother’s home after separating from his wife.” PSR ¶ 96, at 26. The residence is a mobile home that is located on the same land as the family lavender farm. See PSR ¶ 96, at 26.

Gonzales is six feet, one inch tall and weighs 410 pounds. See PSR ¶ 97, at 26. He reports that he suffers from Asthma and plantar fasciitis. See PSR ¶ 97, at 26. “He has been prescribed albuterol, and advair to treat his asthma symptoms.” PSR ¶ 97, at 26. He was previously prescribed codeine for pain, but stated that he became addicted to the medicine, “and has since started taking Suboxone, which is used to treat opiate dependence.” PSR ¶ 97, at 26. Documentation provided to the supervising pre-trial officer reflects that Gonzales has also been prescribed prednisone for inflammation. See PSR ¶ 97, at 26. Gonzales has a surgical scar on his stomach, and Ms. Gonzales indicated that Gonzales has a history of past hospitalizations because of ulcers in his legs that became badly infected. See PSR ¶ 98, at 26.

She indicated that the defendant had lap-band surgery in 2009, and has lost 100 pounds since that time. She added she believes the defendant has a gambling addiction. Contact with the investigating case agent revealed some of the proceeds from the instant offense were spent at casinos near the defendant’s residence.

PSR ¶ 98, at 26-27.

Gonzales reported that he was hospitalized because of mental health issues when he was approximately sixteen-years-old. See PSR ¶ 99, at 27. Regarding this period of time, the PSR states:

He indicated he was having issues with anger and began getting into trouble at school and skipping classes resulting in expulsion. The defendant stated his mother was very pro-active in getting him treatment when she observed him having problems in school. He was taken to an unknown inpatient mental health facility in Calabasas, California, where he remained for 6 to 8 months. He was then released to Provo Canyon High School, a boarding school, which provided mental health treatment in addition to academic curriculum. He reported he has not experienced any issues since that time and feels some of his issues can be attributed to his relationship with his father.

PSR ¶ 99, at 27. During Gonzales’ presen-tence interview, Gonzales was asked whether he had any sexual abuse in his past, to which he responded there was none. See PSR ¶ 99, at 27. The PSR further states:

Information received from Provo Canyon High School reflects the defendant was there form [sic] September 15, 1989, through December 20, 1990. He was diagnosed with Dysthymic Disorder, Intermittent Explosive Disorder, and generalized anxiety disorder. Upon completion, the defendant attended outpatient counseling with an unknown provider until his arrest in March 1991. Additional information regarding his treatment was not available due to the age of the records. Contact with the New Mexico Adult Probation and Parole Office reflects the defendant attended Sex Offender Treatment as a requirement of his parole completion on March 23, 2004. The defendant’s mother verified his mental health history and indicated he attended “intense” therapy sessions. Due to the time that has elapsed since then, she was unable to recall specific details regarding the defendant’s behavior or the time spent in treatment.

PSR ¶ 99, at 27.

Gonzales reported a history of addiction to prescription pain medication. See PSR ¶ 100, at 27. “Upon his release on pretrial supervision, with the permission of his supervising officer, he self-referred himself to Presbyterian Medical Services Santa Fe Community Guidance Center and was prescribed Suboxone via transdermal patch (Butrans 10mcg/hour), to address his opiate addiction.” PSR ¶ 100, at 27. The prescribing physician did not recommend counseling and the USPO did not refer Gonzales to counseling. See PSR ¶ 100, at 27. “Gonzales reported experimental use of marijuana approximately ten times during his life, with his last use 8 years ago.” PSR ¶ 100, at 27. Gonzales also indicated that he used cocaine for a few months when he was sixteen-years-old, but that he does not drink. See PSR ¶ 100, at 27. Ms. Gonzales verified that Gonzales does not drink alcohol and reported no known illegal drug use. See PSR ¶ 100, at 27. “She indicated defendant was addicted to prescription pain medication and advised her he was spending as much as $1,500 weekly in 2013, for pills.” PSR ¶ 100, at 27-28.

4. Gonzales’ Financial Condition.

The Court will discuss Gonzales’ education. It will then review his employment. Finally, the Court will describe Gonzales’ assets and liabilities.

a. Education and Employment.

Gonzales attended Agora High School, until he was expelled for truancy, at which point he began attending Indian Hills High School, both in Calabasas, California. See PSR 1Í101, at 28. He attended Indian Hills High School from February 21, 1989, through May 2, 1989. See PSR ¶ 101, at 28. He was then sent to Provo Canyon Charter High School in Utah, where he remained through December 20, 1990. See PSR ¶ 101, at 28. After submitting documentation to verify his completion of classes at Provo Canyon Charter High School, Gonzales received his high school diploma from Indian Hills High School on June 20, 1991. See PSR ¶ 101, at 28. Then, while Gonzales was incarcerated, he attended Utah State University from September 1992 through June 2001, where he earned a bachelor’s degree in Accounting. See PSR ¶ 101, at 28. Gonzales is fluent in English and understands some Spanish. See PSR ¶ 101, at 28. “His scholastic standing is noted as good.” PSR ¶ 101, at 28.

From 2002 to 2005, Gonzales worked as an accountant at Shidoni Bronze in Te-suque, New Mexico, but resigned from his position when he secured new employment. See PSR ¶ 108, at 29. The PSR notes, “[a] request for information was submitted to the employer, but has not been received as of this writing.” PSR ¶ 108, at 29. From April 24, 2006, to August 4, 2006, Gonzales was employed as a staff accountant at Akal Security in Santa Cruz, New Mexico, but resigned for unknown reasons. See PSR ¶ 107, at 29. Gonzales was then employed as a book-keéper in 2006 at Conservation Solutions, Inc. in Santa Fe, New Mexico,- but was laid off because the position was temporary. See PSR ¶ 106, at 29. The PSR further states, “[a] request for information was submitted to the employer, but has not been received as of this writing.” PSR ¶ 106, at 29. From 2007 to 2008, Gonzales was employed as a scheduler and accountant at J & P Plumbing in Santa Fe. See PSR ¶ 105, at 29. Gonzales was laid off from this position because of lack of a business. See PSR ¶ 105, at 29. Subsequently, between August 4, 2008, and September 25, 2009, Gonzales worked as an accountant at the Ohkay Owingeh Housing Authority in Ohkay Owingeh, New Mexico, but he was “terminated for falsifying his application by failing to disclose his prior felony conviction.” PSR ¶ 104, at 29. Since January, 2014, Gonzales’ mother has employed him at the Purple Adobe Lavender • Farm. See PSR ¶¶ 102-103, at 28. The PSR further states:

The defendant is employed assisting his mother with her business, which includes a lavender farm, tea room, and gift shop. He completes any tasks that require his assistance and also helps with accounting. He is paid in trade for all of his living expenses. The defendant has been working with his mother intermittently since 2004, but this has been his primary employment since January 2014.

PSR ¶ 103, at 28.

b. Assets and Liabilities.

Gonzales has no substantive income and multiple liabilities. See PSR 11110, at 30. Gonzales’ only asset is a Chevy Truck valued at $500.00, while he has numerous liabilities including: (i) $14,541.00 in medical accounts; (ii) a collection account at Chase Bank in the amount of $1,371.00; (iii) a collection account at GM Financial in the amount of $8,388.00; (iv) a collection account at Citibank in the amount of $5,332.00; (v) a Student Loans collection account in the amount of $3,489.00; (vi) a collection account in the amount of $1,389.00; (vii) a collection account at GE Money Bank in the amount of $464.00; (viii) a collection account at DirecTV in the amount of $160.00; and (ix) a judgment at Los Alamos National Bank in the amount of $44,905.00. See PSR ¶ 110, at 30. Gonzales’ total liabilities thus amount to $80,039.00, and he has a total net worth of -$79,539.00. See PSR ¶ 110, at 30. The PSR also states that Gonzales receives $357.00 in food stamps and $495.00 in salary, totaling $852.00 per month. See PSR ¶ 110, at 30. Gonzales has monthly expenses totaling $852.00, including automobile insurance, gasoline, child care/schooling, and groceries/supplies. See PSR ¶ 110, at 30. His total monthly cash flow equals his monthly expenses, leaving him nothing at the end of the month. See PSR ¶ 110, at 30.

Regarding Gonzales’ financial condition, the PSR further states:

111. The defendant provided a copy of a Judgment on the Pleading for a default judgment against the defendant for Los Alamos National Bank (Case No. D-132-CV-2013-00038) in the amount of $47,412.09 plus interest through May 6, 2013, in the amount of $3237.07, and interest in the amount of 7% until paid. This balance appears to represent the total amount of four accounts that were unpaid with the lender. The defendant’s wife indicated the defendant owns nothing of value. She stated that the mobile home they resided in belongs to her father (Felix Valdez) as does the property the home is situated on. She added she resided in the home for approximately seven years prior to meeting the defendant as it was provided to her by her father. She stated the default judgment from Los Alamos National Bank includes a vehicle he previously owned that was repossessed (2008 Ford F-250). In addition, she indicated the balance with GM Financial represents the balance of a 2011 Lexus RX that was repossessed. She added she owes the taxes she earned while married to the defendant. Their filing status was married, filing jointly, making the defendant responsible for the outstanding debt as well as Ms. Gonzales. Documentation to verify these balances was requested, but not received prior to the disclosure of this report. The defendant’s mother indicated she recently purchased the defendant’s truck, but it is registered under his name.

112. Based on the defendant’s financial condition, and because he will be required to pay $804,735.73 in restitution because of this conviction, a fine does not appear feasible.

PSR ¶¶ 111-112, at 31. Regarding the imposition of restitution, the PSR further states:

Statutory Provisions: Pursuant to 18 U.S.C. § 3663A, restitution in the total amount of $804,735.73 shall be ordered in this case for both defendant’s to be paid jointly and severally. Restitution, as set forth below, is due and owing to the following victims:

Victim Name Amount of Loss

New Mexico Department of Workforce Solutions $247,929.00

Colorado Department of Labor and Employment $488,107.00

Texas Workforce Commission $68,699.73

TOTAL $804,735.73

Guideline Provisions: Restitution shall be ordered. USSG § 5E1.1

PSR ¶¶ 128-129, at 33.

PROCEDURAL BACKGROUND

The Indictment, filed March 26, 2014 (Doc. 2), charged Gonzales with the following Counts: (i) Count 1 — Conspiracy to Commit Mail Fraud in violation of 18 U.S.C. § 1349; (ii) Counts 2 through 5— Mail Fraud and Aiding and Abetting in violation of 18 U.S.C. §§ 1341 and 2; and (iii) Count 6 — Aggravated Identity Theft in violation of 18 U.S.C. § 1028A. See Indictment ¶¶ 5-36, at 4-11. On August 18, 2014, Gonzales pled guilty to all six Counts of the Indictment. See Plea Minute Sheet, filed August 18, 2014 (Doc. 51). On November 5, 2014, the USPO disclosed an initial Presentence Investigation Report (“Original PSR”).

1. Gonzales’ Sentencing Memorandum.

On November 20, 2014, Gonzales filed a Sentencing Memorandum. See Sentencing Memorandum at 1. In his Sentencing Memorandum, under the heading “Objections to the Pre-Sentence Investigation Report,” Gonzales makes eight objections to the Original PSR. Sentencing Memorandum at 2-4. First, Gonzales “challenges the use of an inchoate, intended loss of $1,317,411.00 to increase his base offense level by 16 levels.” Sentencing Memorandum at 2. Gonzales contends that his base offense level should be increased only by 14 levels to account for the actual loss of $804,735.73. See Sentencing Memorandum at 2-3. Gonzales further asserts that, if the Court uses the intended loss, rather than the actual loss, to increase his base offense level, then “he is entitled to a three-level reduction for an attempted theft, as set out in Section 2Xl.l(b) of the Guidelines.” Sentencing Memorandum at 3.

Second, Gonzales argues that there were only three victims in this case, and not more than fifty, as paragraph 69 of the Original PSR contends. See Sentencing Memorandum at 3. Gonzales asserts that “Application Note 1 to Section 2B1.1 defines a ‘victim’ only as ‘any person who sustained any part of the actual loss determined under section (b)(1).’ ” Sentencing Memorandum at 3 (emphasis in Sentencing Memorandum). According to Gonzales, there are only three “victims” of fraud in this case: (i) the Texas Workforce Commission; (2) the Colorado Department of Labor; and (iii) the New Mexico Department Solutions. Sentencing Memorandum at 3. Gonzales next “objects generally to an enhancement of his sentence for the use of sophisticated means under 2Bl.l[b][10][C] because that fact substantially overlaps with, and is adequately taken into account by, the loss amount in section 2B1.1 [b][1][H].” Sentencing Memorandum at 3.

Fourth, Gonzales objects to the Original PSR’s paragraph 71. See Sentencing Memorandum at 3. Gonzales asserts:

Because Mr. Gonzales faces a mandatory, consecutive sentence of 24 months for the crime of aggravated identity theft as admitted in Count VI of the Indictment, Application Note 2 to section 2B1.6, specifically prohibits the use of “any specific offense characteristic for the transfer, possession or use of a means of identification when determining the sentence for the underlying offense” as suggested in Paragraph 71. Mr. Gonzales should not be subjected to the two-level increase recommended by this paragraph because the Guidelines specifically recognize that a two-year consecutive sentence fully “accounts for this factor for the underlying offense of conviction.”

Sentencing Memorandum at 3. Gonzales next objects to the Original PSR’s paragraph 73, which imposes a 4-level enhancement for being an organizer or leader of criminal activity which involved five or more participants. See Sentencing Memorandum at 3-4. Gonzales maintains that this enhancement “substantially overlaps with, and is adequately taken into account by, the loss amount in section 2Bl.l[b][l][H].” Sentencing Memorandum at 4.

Sixth, Gonzales objects to the Original PSR’s paragraph 134, contending that “a downward departure based on his Mental and Emotional Condition under section 5H1.3 would be appropriate in this case.” Sentencing Memorandum at 4. Seventh, Gonzales “submits that a departure based on his serious addiction to prescription pain medication and his persistent, untreated gambling addiction could together justify a departure under section 5H1.4 because these addictions are present to an unusual degree and substantially contributed to the commission of the charged offense.” Sentencing Memorandum at 4. Finally, objecting to the Original PSR’s paragraph 136, Gonzales asserts:

[I]n addition to the factors identified in the Pre-Sentence Investigation Report which could support a departure or a variance, this Honorable Court can depart or vary from the sentence recommended by the United States Sentencing Guidelines in an effort to avoid unwarranted sentencing disparities caused by substantially overlapping specific offense characteristics which unreasonably aggregate Mr. Gonzales’ sentence. Cf. United States v. Lauersen, 348 F.3d 329 (2nd Cir.20[03]). In addition, Mr. Gonzales contends that this Honorable Court could depart or vary based on his cooperation with law enforcement officers following the detection of his criminal offense and his post-offense efforts at rehabilitation.

Sentencing Memorandum at 4.

Gonzales asserts broadly that “a sentence of no more than 81 months in prison is sufficient, without being greater than necessary, to reflect the seriousness of the offense, provide just punishment and promote respect for the law.” Sentencing Memorandum at 8. Gonzales maintains that a sentence of 81 months in prison is appropriate under a correct application of the Guidelines, and that the Court “would be justified in departing, or varying, from the sentence recommended by the Guidelines in light of his mental and emotional condition, his chronic drug and gambling addiction, his post-offense efforts at rehabilitation and his cooperation with law enforcement officials.” Sentencing Memorandum at 8-9. Gonzales then makes three high-level arguments: (i) that the recommended guideline sentence, based on five specific offense characteristics, which were not alleged in the indictment or admitted by Gonzales, violates the Fifth and Sixth Amendments to the Constitution of the United States of America; (ii) that the specific offense characteristics set forth in the Original PSR are not applicable or substantially overlap; and (iii) that the Court should depart or vary from the recommended guidelines sentence based on Gonzales’ unique history and characteristics. See Sentencing Memorandum at 9-20.

On the first point, Gonzales argues that, if the Court relied only on the facts alleged in the Indictment and which Gonzales admits, “the final adjusted offense level would be 18 and the criminal history category will be II, yielding a recommended Guideline sentence of 30 to 37 months followed by a mandatory consecutive 24 months for a total sentence of 54 to 61 months.” Sentencing Memorandum at 9. According to Gonzales, the Original PSR recommends a sentence of 159 to 192 months “based on a myriad of inapplicable sentencing factors which were never alleged in the Indictment or admitted by Mr. Gonzales.” Sentencing Memorandum at 9. Gonzales argues that “the imposition of such a dramatically increased sentence would clearly violate the Fifth and Sixth Amendments.” Sentencing Memorandum at 9. Gonzales cites to United States v. Staten, 466 F.3d 708, 717 (9th Cir.2006), for the proposition that “constitutional error may occur if a judge-found fact is determined only by a preponderance of the evidence.” Sentencing Memorandum at 10-11. According to Gonzales, the United States Court of Appeals for the Ninth Circuit stated that, “when a sentencing factor has an extremely disproportionate effect on the sentence relative to the conviction, the government must prove such a factor by clear and convincing evidence.” Sentencing Memorandum at 11 (quoting United States v. Staten, 466 F.3d at 717). Gonzales concedes that the United States Court of Appeals for the Tenth Circuit has not “expressly decided this important question,” but asserts that the Tenth Circuit has nonetheless “left open the possibility that due process may require proof by clear and convincing evidence before imposition of a Guidelines enhancement that increases a sentence by an ‘extraordinary or dramatic’ amount.” Sentencing Memorandum at 11 (quoting United States v. Ray, 704 F.3d 1307, 1314 (10th Cir.2013)). Gonzales argues:

The Pre-Sentence Investigation Reports recommends tripling the sentence recommended by the Guidelines based on the facts alleged in the Indictment on the basis of a variety of “judgefound” facts which were not alleged in the Indictment or admitted by Mr. Gonzales. This exercise in judicial fact finding inexorably increases Mr. Gonzales’s sentence as surely ás the facts found by the judge in Alleyne, in violation of the Fifth and Sixth Amendment. Therefore, Mr. Gonzales respectfully submits that the Constitution forbids this Honorable Court from using these uncharged facts and unproven misconduct to increase his sentence, especially if the Court finds these facts based on a preponderance of the evidence.

Sentencing Memorandum at 11.

As stated above, Gonzales’ second high-level argument is that “the specific offense characteristics set out in the pre-sentence investigation report are inapplicable or substantially overlap.” Sentencing Memorandum at 11. Gonzales argues that he should be sentenced only for the actual loss that the three state unemployment agencies suffered and that his sentence should not be enhanced by any additional specific offense characteristics. See Sentencing Memorandum at 12. Gonzales maintains that enhancing his offense level with the specific offense characteristics that the Original PSR sets forth is “either expressly prohibited by the plain terms of the Guidelines or is even more severe than necessary to account for the nature and circumstances of the charged crimes.” Sentencing Memorandum at 12. First, Gonzales contends that “any effort to punish him for inchoate, unrealized loss is inconsistent with other, competing sections of the Guidelines.” Sentencing Memorandum at 13. He argues that actual loss is the fairest, most direct measurement of loss in this case, maintaining that an incomplete attempt to steal $1.3 million is not equivalent to actually stealing that sum of money. See Sentencing Memorandum at 13. Second, Gonzales argues that the PSR erred in recommending an enhancement for more than fifty victims under § 2Bl.l(b)(2)(B). See Sentencing Memorandum at 14. Gonzales maintains that the United States “can only show by clear and convincing evidence that three state unemployment agencies suffered an actual, monetary loss as defined by the Guidelines.” Sentencing Memorandum at 14. Gonzales cites to United States v. Sutton, 582 F.3d 781, 785 (7th Cir.2009), for the proposition that “[p]ecuniary harm does not include inchoate losses that do not materialize into an actual monetary loss.” Sentencing Memorandum at 14. Gonzales therefore maintains that, because the Original PSR documents that there were only three victims who suffered actual loss, an additional upward adjustment for multiple victims is unwarranted. See Sentencing Memorandum at 14.

Third, Gonzales asserts that § 2B1.6 forecloses the recommended enhancement of 2 levels for the offense of mail fraud based on “the unauthorized transfer or use of any means of identification.” Sentencing Memorandum at 15. According to Gonzales, that section “prohibits the application of ‘any specific offense characteristic for the transfer, possession or use of a means of identification when determining the sentence for the underlying offense’ if a mandatory, consecutive sentence is not imposed for the offense of aggravated identity theft.” Sentencing Memorandum at 15 (quoting § 2B1.6, cmt. n.2). Gonzales contends that “the rationale for this prohibition is that the sentence for aggravated identity theft already accounts for this offense conduct.” Sentencing Memorandum at 15. Gonzales argues that, because he will receive a two-year consecutive sentence on the identity theft count (Count VI), “his sentence for the underlying offense is not eligible for a two-level increase for ‘transfer, possession or use’ of false identification.” Sentencing Memorandum at 14-15.

Gonzales’ fourth and final point under his second high-level argument is that the Court should depart or vary from the recommended guidelines sentence because, “many of the specific offense characteristics, such as the enhancements for sophisticated means and aggravated role, overlap and punish the same conduct.” Sentencing Memorandum at 16. Gonzales refers to the concept of “factor creep” and refers to commentators that are “concerned that by ‘piling on’ multiple specific offense characteristics, the Guidelines are essentially punishing the defendant for the same conduct.” Sentencing Memorandum at 16. Gonzales contends that, when a district court imposes multiple, similar enhancements, it may exercise its discretion to mitigate the enhancement’s effect by making a downward departure. See Sentencing Memorandum at 17 (citing United States v. Lauersen, 348 F.3d at 344). Gonzales concedes that some of the enhancements that the Original PSR proposes may arguably apply, but asks the Court to depart or vary from the recommended guidelines sentence “because these enhancements over lap and essentially punish the same conduct.” Sentencing Memorandum at 17. Gonzales asserts that a departure or variance is warranted because of the unwarranted sentence disparity created by sentencing him based on the loss amount combined with four specific offense characteristics. See Sentencing Memorandum at 17. First, Gonzales argues that the sophisticated-means and aggravating role enhancements overlap, and second, he argues that empirical evidence demonstrates that “offenders who are subjected to sentencing under 2B1.1 based on the loss table and more than two specific offense characteristics are outliers who suffer unnecessarily based on ‘factor creep.’ ” Sentencing Memorandum at 19-20. In Gonzales’ view, any attempt to punish an offender like him “creates an unreasonable and unwarranted sentence disparity among similarly situated offenders” that the Court should seek to avoid under 18 U.S.C. § 3553(a). Gonzales explains:

A recent review of sentences under section 2B1.1 by statisticians at the United States Sentencing Commission has found that the imposition of multiple sentencing enhancements in fraud and theft cases is relatively rare. This analysis has shown that for offenders sentenced under 2B1.1 in 2012, fifty percent of the defendants received an increase from the loss table and at least one other specific offense characteristic. (Courtney Semisch, Sentencing Symposium, 9/18/13, Tx., pp. 40)

Of this sub-set of those one-third of the offenders who were sentenced under both the loss table and at least one other specific offense characteristic, 63.2% received an increase from the loss table and only one additional specific offense characteristic. Another 27.8% of these offenders received an increase from the loss table and two additional specific offense characteristics. Only 8% of this subset received an increase based on the loss table and three specific offense characteristics and only .9% received an increase from the loss table and four additional specific offense characteristics. (Courtney Semisch, Sentencing Symposium, 9/18/13, Tx., pp. 40-41)

Mr. Gonzales contends that offenders who are subjected to sentencing under 2B1.1 based on the loss table and more than two specific offense characteristics are outliers who suffer unnecessarily based on “factor creep.” He further submits that any effort to punish such an offender, like him, creates an unreasonable and unwarranted sentence disparity among similarly situated offenders which this Court should seek to avoid under 18 U.S.C. § 3553.

Sentencing Memorandum 19-20.

Gonzales then moves to his final' high-level argument, asking the Court to depart or vary from the sentence the Guidelines recommend, based on Gonzales’ unique history and characteristics. See Sentencing Memorandum at 20. Gonzales argues that, after the Court has calculated the applicable Guidelines range, it must make an individualized assessment based on all of the § 3553(a) factors to determine whether a departure or variance is warranted. See Sentencing Memorandum at 20. Gonzales further asserts that, through this inquiry, a district court can impose any sentence that is reasonable, as long as it fairly and fully considers all of the factors set forth in § 3553(a). See Sentencing Memorandum at 20 (citing United States v. Cage, 451 F.3d 585, 595 (10th Cir.2006)). Gonzales asserts that, in his case, there are many aspects of his history and characteristics that mitigate this criminal offense, including: (i) he is a survivor of childhood trauma and abuse; (ii) he has struggled with depression and anxiety since he was a young adult, and has repeatedly sought treatment for his mental health disease; (iii) while he was imprisoned at the Utah State Penitentiary, he “did everything he could to improve his life, culminating in the receipt of a Bachelor’s of Arts in accounting”; (iv) “Hollowing his release from prison on 2002, he successfully completed sex offender treatment, and was discharged from parole without a single violation and began a productive life as a bookkeeper and accountant”; (v) he married, started a family, and enjoyed a long period of rehabilitation; (vi) since law enforcement searched his residence in May, 2012, he has been doing everything in his power to forge a new life; and (vii) he has repeatedly cooperated with the United States, complied with all conditions of pre-trial release, and has undergone drug counseling. Sentencing Memorandum at 22-23.

2. The Addendum and Re-disclosure of the PSR.

On November 20, 2014, in response to Gonzales’ Sentencing Memorandum, the USPO filed an Addendum to the PSR, specifically addressing the eight objections Gonzales raises. See Addendum to the Presentence Report, filed November 20, 2014 (“Addendum”). Regarding Gonzales’ objection to paragraph 68, the USPO maintains that the intended loss amount of $1,317,411.00 should be used to increase Gonzales’ base offense level by 16 levels. See Addendum at 1. The USPO further asserts that Gonzales is incorrect that, if the Court uses the intended loss, he is entitled to a 3-level reduction for an attempted theft. See Addendum at 1. The USPO states that, the Court must “pursuant to USSG § 3D1.3(b), in the case of counts grouped together under this section, when two counts involve offenses of the same general type to which different guidelines apply, apply the offense guideline that produces the highest offense level.” Addendum at 1. It argues that, in this case, “only Count 1, is a Conspiracy, which would be covered under USSG § 2X1.1 (Attempt, Solicitation, or Conspiracy Not Covered by a Specific Offense Guideline). Counts 2 through 5 are specifically covered under USSG § 2B1.1, which was used throughout the Presentence Report as the applicable guideline.” Addendum at 1-2.

The USPO counters Gonzales’ argument that there were only three victims in this federal offense, resulting in no specific offense characteristic application under § 2Bl.l(b)(2)(B). See Addendum at 2. According to the USPO, application note 4(E) to § 2B1.1 states that, in a case involving means of identification, “a victim means (i) any victim as described in Application Note 1; or (ii) any individual whose means of identification was used unlawfully or without authority.” Addendum at 2. The USPO asserts that, here, “at least 107 victims were identified whose information was possessed without permission or knowledge and without legal authority to further the scheme perpetrated by the defendant and his co-conspirator.” Addendum at 2. Regarding Gonzales’ third objection, the USPO maintains that an enhancement for sophisticated means under U.S.S.G. § 2Bl.l(b)(10)(C) is warranted. See Addendum at 2. According to the USPO, under Application Note 9(B), sophisticated means “is defined as an especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense” and that “[n]o consideration is made for the amount of loss....” Addendum at 2.

The USPO agrees with Gonzales that “the application of the SOC[] pursuant to USSG § 2Bl.l(b)(ll)(C)(i), was applied incorrectly.” Addendum at 2. The USPO explains:

Review of the above noted Application note specifically indicates that if a Sentence for Aggravated Identity Theft is imposed in conjunction with a sentence for an underlying offense, the SOC for transfer, possession, or use of a means of identification should not be applied. It should be noted, that although this specific application note prohibits the use of the SOC pursuant to USSG § 2Bl.l(b)(ll)(C)(i), it does not prohibit the use of all SOCs that are based on the transfer, possession, or use of a means of identification, and thus are not forbidden. The PSR will be re-disclosed to reflect those changes.

Addendum at 2. Regarding Gonzales’ argument that he should not be subjected to an aggravated role adjustment as an organizer or leader of criminal activity that involved five or more participants under § 3Bl.l(a) because this enhancement substantially overlaps with and is taken into account by § 2Bl.l(b)(l), the USPO responds that the SOC should apply, because § 3B1.1 does not reflect that the amount of loss has any bearing on Gonzales’ role under this enhancement. See Addendum at 2. The USPO next addresses Gonzales’ sixth and seventh objections, which ask for downward departures based on his mental health, physical condition, gambling abuse, and cooperation with law enforcement, and for his post-offense rehabilitation efforts. See Addendum at 2. The USPO maintains that a departure is unwarranted based on the information that the Original PSR sets forth in paragraphs 134 and 135. See Addendum at 2. Finally, the USPO rejects Gonzales’ contention that “a downward departure or variance based on his cooperation with law enforcement following his arrest and his Post Offense Rehabilitation efforts is appropriate.” Addendum at 2.

In light of the fact that the USPO agreed with Gonzales regarding his fourth objection, it re-disclosed the PSR on November 25, 2014. See PSR at 1. The PSR explains that Counts 1 through 6 are grouped for guideline calculation purposes, but that Count 6 is treated separately as the statute mandates imposition of a consecutive sentence. See PSR at 20. The PSR identifies the base level offense for the group, under § 2B1.1, as seven. See PSR ¶ 67, at 21. It then increases the offense level by 16 under § 2Bl.l(b)(l)(l), because the- intended loss exceeds $1,000,000.00. See PSR ¶ 68, at 21. The PSR also imposes: (i) a 4-level increase under § 2B1.1(b)(2)(B), because the offense involved fifty or more victims; (ii) a 2-level increase under § 2Bl.l(b)(10)(C), because the offense involved sophisticated means; and (iii) a 4-level increase under § 3Bl.l(a), because Gonzales was an organizer or leader of criminal activity that involved five or more participants, or was otherwise extensive. See PSR ¶¶ 69-72, at 21. After decreasing the offense level 3 levels because Gonzales accepts responsibility and assisted authorities in his investigation or prosecution, the PSR states that Gonzales’ total offense level is 30. See PSR ¶¶ 76-78, at 21. Based on Gonzales’ criminal history, the PSR assigns him a criminal history category of II. See PSR ¶ 83, at 23. The PSR concludes that, “[bjased on a total offense level of 30 and a criminal history category of II, the guideline imprisonment range is 108 months to 135 months.” PSR ¶ 115, at 31. The PSR also explains that, pursuant to 18 U.S.C. § 3663A, restitution in the amount of $804,735.73 “shall be ordered in this case for both defendant’s [sic] to be paid jointly and severally.” PSR ¶ 128, at 33.

3. The Sentencing Hearing.

The Court held a sentencing hearing on December 4, 2014. See Transcript of Hearing (taken December 4, 2014)(“Tr.”). Gonzales began by addressing his objection to paragraph 68 that the USPO should have used actual loss, rather than potential or intended loss. See Tr. at 3:15 (Court). Gonzales stuck to his briefing on this objection, but eventually conceded that there is no relief within the Guidelines, and that the proper avenue is to use a variance. See Tr. at 6:8-12 (Court, Pori). The United States agreed that the Guidelines were properly applied on Gonzales’ first objection, and that if there is an argument, it must be pursued through the § 3553(a) factors. See Tr. at 6:16-7:8 (Court, Neda). The Court stated that it was inclined to overrule Gonzales’ objection to paragraph 68, largely for the reasons that the USPO sets forth in the Addendum. The Court explained:

It seems to me that it’s appropriately calculated and the argument is more in the nature of Kimbrough or in addition to Kimbrough. It’s also asking for some variance, because of the way it operates, and I’m inclined to overrule that objection, and treat it more in the nature of a request for a variance after we calculate the guidelines correctly.

Tr. at 8:3-14 (Court).

The Court then moved to Gonzales’ second objection — that there were only three victims in this case, rather than the fifty or more that the USPO calculates in the PSR. See Tr. at 8:15-18 (Court). Gonzales again reiterated his arguments from the briefing. See Tr. at 8:19-10:17 (Court, Pori). The Court asked, however: “[I]f you just had the application note 4E, would you agree we should count any individuals whose means of identification was used unlawfully or without authority.” Tr. at 10:18-21 (Court). Gonzales responded: “If I just had 4E yes, if I didn’t have application note 2B1.6 and if Mr. Gonzales was not facing a sentence of two years consecutive for aggravated identity theft[.]” Tr. at 10:22-25 (Pori). The United States emphasized that there are two different considerations at play: the harm done, and the breadth of the crime. See Tr. at 11:5-25 (Neda). It asserted that here there are 109 “actual people who are receiving incidentally letters from the IRS demanding that taxes be paid ... for the insurance benefits that they’ve received over the past few years.” Tr. at 11:7-12 (Neda). According to the United States, Gonzales’ cited application note refers does not deal with the breadth of the crime and how many true identities Gonzales unlawfully used. See Tr. at 11:21-12:21 (Neda). Gonzales countered that the information about individuals receiving letters is not part of the PSR and is therefore not properly before the Court. See Tr. at 14:4-16 (Pori). He further asserted that these individuals have never had actual harm, and that he is unable to see how it is not double counting to enhance the sentence because there were many victims of identity theft, and then sentence him to a mandatory consecutive term of two years because of identity theft. See Tr. at 14:14-23 (Pori). The Court concluded:

Well, this may create a problem down the road, but I think that the more specific language of 4E at least for the purpose of determining victims controls here over the general definition of victim which applies to B 1, and here we’re dealing with B 2. So I’d be inclined to overrule that objection and deal with the other objection when we get to 2B1.6.

Tr. at 19:3-10 (Court).

The Court then moved to objection number 3 and objection number 5. See Tr. at 19:11-18 (Court, Pori). Gonzales conceded that he did not think that anyone could argue that this offense did not involve sophisticated means, or that it did not involve leading or managing more than five people. See Tr. at 19:19-23 (Pori). He admitted that “I think enhancements under the facts do apply,” Tr. at 19:17-23 (Pori), but asserted that he thinks that he has “a very good argument when it comes to considering this kind of variance based on substantially overlapping specific offense characteristics,” Tr. at 21:17-20 (Pori). The United States maintained that: (i) this crime was a sophisticated scheme involving significant planning, and the creation of companies and 107 fake identification cards; and (ii) that there were five or six people involved, which the Guidelines punish more severely because conspiracies create more danger and crimes. See Tr. at 21:22-25:2 (Neda). The Court concluded:

Well, I think that on the facts that are in the PSR, it does appear that the defendant used sophisticated means, and that he did manage others or was a leader or organizer, so I think the guidelines are correctly calculated. I am concerned about the statistics the defendant is presenting about how few of these have more than one enhancement. This one seems to have a lot. But I think that goes more for a Kimbrough or variance argument, but I think the guidelines were correctly calculated here.

Tr. at 26:3-16 (Court).

The parties confirmed that objection number 4 should be sustained. See Tr. at 26:13-24 (Court, Pori). Gonzales then asked the Court to take judicial notice of the case of the former head of the New Mexico State Senate — Manny Aragon— who received a sentence of 67 months for conspiring with five other people to defraud the State of New Mexico of $2 million in the construction of the courthouse in Albuquerque. See Tr. at 28:17-30:3 (Court, Pori). The parties further confirmed that the Court had dealt with all of Gonzales’ objections, and they then moved to the requested downward departure based upon mental and emotional health, and on physical addiction including drug or alcohol abuse. See Tr. at 28:14-16 (Court). The parties largely stuck to their briefing, and the Court denied the request for any departure from the Guidelines. See Tr. at 30:15-35:19 (Court, Neda, Pori). The Court explained that, while the Guidelines certainly authorize departures for mental and emotional health under § 5H1.3, and for physical addiction, including drug or alcohol abuse, under § 5H1.4, it does not think that they are warranted under the facts of this case. See Tr. at 35:12-19 (Court). The Court acknowledged that Gonzales has these problems, but noted that he was also operating at a fairly high level and was able to commit a sophisticated crime. See Tr. at 35:19-23 (Court). The Court observed that it must sentence many people with mental, emotional, physical health problems or addictions, but it thinks that this case fits into the heartland of cases. See Tr. at 35:23-36:8 (Court). The Court stated that, even if a departure were warranted under the facts, it would exercise its discretion not to depart, “because in my view this case remains a heartland case.” Tr. at 36:11-14 (Court). The Court noted, however, that it thinks that these factors are relevant to the § 3553(a) variance analysis and that it would keep these arguments in mind in fashioning a sentence to reflect those factors. See Tr. at 36:15-19 (Court).

The Court and the parties spent the remainder of the hearing discussing the § 3553(a) factors. See Tr. at 37:5-55:16 (Court, Neda, Pori). The parties largely re-asserted their arguments set forth-in the briefing. See Tr. at 37:5-55:16 (Court, Neda, Pori). Gonzales suggested that, if the Court were to sentence Gonzales based on the loss amount and the aggravated identity theft, he would be facing a sentence of approximately five years. See Tr. at 43:16-20 (Pori). Instead, according to Gonzales, he faces eleven years, “twice as much sentence based upon specific offense characteristics that were not alleged in the indictment, admitted by Mr. Gonzales, proven beyond a reasonable doubt, even proven by more than a preponderance of the evidence.... ” Tr. at 43:20-25 (Pori). Gonzales contended that to sentence him on the basis of so many specific offense characteristics that substantially overlap would result in a an unreasonable sentence that is more severe than necessary to achieve Congress’s sentencing aims. See Tr. at 43:25-44:6 (Pori). Moreover, Gonzales suggested that the Court impose a total sentence of 81 months. See Tr. at 46:13-47:10 (Court, Pori). The United States opposed a variance under the § 3553(a) factors, because: (i) although, after being arrested, Gonzales gave consent for a search of his thumb drives and computer, nothing of evidentiary value was found at that point; (ii) although Gonzales has expressed remorse, the 3-level reduction for acceptance of responsibility addresses it; (iii) although Gonzales offered to debrief, the United States Postal Service agents did not find it helpful, because the only thing he told them was that Post Office Boxes and debit cards can be misused; (iv) when Gonzales was not even an adult, he was convicted of heinous crimes — burglary and rape — for which he served time; (v) although he earned a bachelor’s degree in accounting, he used it to steal individuals’ identities, because he had access to their personal files; (vi) although he has a daughter who will suffer, most defendants have children or spouses who will suffer; (vii) he had an education, caring family, and everything else required to live a respectable life; and (viii) this crime was a deliberate, long-term, repeated, criminal episode that imperiled the system designed to help those much more needy. See Tr. at 47:13-50:19 (Neda).

The Court then stated the sentence. See Tr. at 55:17-70:24 (Court, Neda, Pori). The Court explained that, after considering Gonzales’ objections and overruling them, it would “adopt those in the presen-tence report as its own including in the addendum which had that one objection that was sustained.” Tr. at 55:17-70:24 (Court). The Court stated that the offense level is therefore 30 and the criminal history category is II, producing a guideline imprisonment range of 108 to 135 months on counts one through five. See Tr. at 56:8-12 (Court). The Court further explained that, as to count 6, “the guideline sentence is the statutorily required [sentence] of 24 months [ — ] two years [ — ] which will run consecutively to any sentence imposed[.]” Tr. at 56:12-14 (Court). The Court explained that it has identified roughly eleven factors that put downward pressure on the sentence: (i) although the Court has no Kimbrough disagreement with the Guidelines advisory range, the actual loss here is considerably below the intended loss, only three governmental agencies are sustaining actual losses in this case, and although this criminal enterprise qualifies as sophisticated under the