United States v. Lee , 418 F. App'x 214 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4916
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO DONEIL LEE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00242-TDS-1)
Argued: January 25, 2011 Decided: March 21, 2011
Before KING, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Harry L. Hobgood, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellant. James Darren Byers,
LAW OFFICE OF J. DARREN BYERS, PA, Winston-Salem, North
Carolina, for Appellee. ON BRIEF: Anna Mills Wagoner, United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Doneil Lee pled guilty to bank fraud (Count One),
in violation of 18 U.S.C. § 1344(2), and was found guilty, after
a bench trial, of aggravated identity theft (Count Two), in
violation of 18 U.S.C. § 1028A(a)(1). The district court
sentenced Lee to forty-eight months imprisonment on Count One in
addition to a statutorily mandated consecutive sentence of
twenty-four months on Count Two. Lee appeals his conviction for
Count Two and challenges the amount of loss attributed to Count
One at sentencing. Finding no error, we affirm the judgment of
the district court.
I.
Lee argues the district court improperly denied his motion
for judgment of acquittal on Count Two. We review de novo the
district court’s denial of a motion for judgment of acquittal.
United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010).
“[A]ppellate reversal on grounds of insufficient evidence . . .
will be confined to cases where the prosecution’s failure is
clear.” Burks v. United States, 437 U.S. 1, 17 (1978). The
verdict will be affirmed if, when viewed in the light most
favorable to the government, there is substantial evidence to
support it. United States v. Alerre, 430 F.3d 681, 693 (4th
Cir. 2005). Substantial evidence is defined as evidence that a
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“‘reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.’” Green, 599 F.3d at 367 (quoting United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)).
18 U.S.C. § 1028A(a)(1), the statute charged in Count Two,
imposes a mandatory two-year consecutive sentence on an
individual who “knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another person”
during or in relation to the commission of certain enumerated
felonies. In Flores-Figueroa v. United States, 556 U.S. ----,
129 S. Ct. 1886 (2009), the Supreme Court held that this
language requires the Government to “show that the defendant
knew that the means of identification at issue belonged to
another person.” Flores-Figueroa, 129 S. Ct. at 1894. Lee
argues the Government failed to offer sufficient evidence to
prove that he knew that the identification documents he used to
cash altered checks actually belonged to a real person, as
required by the Supreme Court in Flores-Figueroa.
The Flores-Figueroa standard may impose a difficult burden
on the Government in proving the elements of § 1028A(a)(1) in
certain cases of identity theft. As the Ninth Circuit has
noted, however, requiring proof of knowledge “that the
identification document belonged to another person . . . . is
not an insurmountable burden, especially in a case where the
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identification document contains someone else’s photo and does
not appear to be a fake.” United States v. Miranda-Lopez, 532
F.3d 1034, 1040 (9th Cir. 2008). 1 This observation properly
reflects that circumstantial evidence can be fully sufficient
for purposes of sustaining a conviction under a sufficiency of
the evidence review. See United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982) (“We must consider circumstantial as
well as direct evidence, and allow the government the benefit of
all reasonable inferences from the facts proven to those sought
to be established.”). Thus, circumstantial evidence supporting
a reasonable inference of knowledge that the means of
identification belonged to another person will be sufficient to
sustain a conviction under 18 U.S.C. § 1028A(a)(1).
After reviewing the record, we conclude that the evidence
was sufficient to support Lee’s conviction on Count Two. That
evidence established that the Social Security and North Carolina
identification cards used by Lee were both genuine in fact and
appearance. In particular, the North Carolina identification
card used to cash the altered check bore two images of the
card’s actual owner in addition to a series of complex holograms
1
Although issued prior to Flores-Figueroa, the Ninth
Circuit’s decision in Miranda-Lopez, by requiring proof of
knowledge that the identification belonged to another person,
was consistent with the Supreme Court’s later ruling on the
meaning of § 1028(A)(a)(1).
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not found on counterfeit versions. Additionally, the North
Carolina identification card “contains someone else’s photo and
does not appear to be a fake.” Miranda-Lopez, 532 F.3d at 1040.
Furthermore, the record shows that Lee’s modus operandi was to
use genuine identification documents when he or his accomplices
cashed altered checks. This evidence, a consistent modus
operandi combined with the cards’ factual and apparent
genuineness, was sufficient for a reasonable finder of fact to
conclude that Lee had knowledge that the identification belonged
to an actual person.
Accordingly, we conclude that the district court did not
err in denying Lee’s motion for acquittal. We therefore affirm
Lee’s conviction under Count Two for violating U.S.C. §
1028A(a)(1).
II.
The other issue raised by Lee is whether the district court
erred in its determination of the amount of loss attributable to
him for sentencing purposes under Count One. Lee challenges the
district court’s finding at sentencing that a $20,000 check,
found in his car at the time of his arrest, was part of the
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“same common scheme or plan” as the charged conduct. 2 We review
factual findings made at sentencing for clear error. United
States v. Pauley, 289 F.3d 254, 258 (4th Cir. 2002).
“The sentencing guidelines establish that certain relevant
conduct may be considered in determining the guidelines range
for a criminal defendant.” United States v. Hodge, 354 F.3d
305, 312 (4th Cir. 2004). Conduct that is a “part of the same
course of conduct or common scheme or plan as the offense of
conviction” is considered relevant under the guidelines.
U.S.S.G. § 1B1.3(a)(2). Several factors are considered when
determining whether uncharged conduct is part of “the same
course of conduct or common scheme or plan,” including “the
nature of the defendant’s acts, his role, and the number and
frequency of repetitions of those acts.” Pauley, 289 F.3d at
259 (quotation omitted). Additionally, we evaluate the
“similarity, regularity and temporal proximity between the
offense of conviction and the uncharged conduct.” Id.The district court did not err in finding that the $20,000
check was part of a “common scheme or plan” with the charged
conduct. Like the more than forty stolen checks successfully
cashed by Lee, the record reflects that the $20,000 check had
2
The district court’s finding as to the $20,000 check had
the effect of raising Lee’s offense level under the sentencing
guidelines from fourteen to sixteen.
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also been stolen and chemically washed to remove the original
payee’s name. This is strong evidence that Lee’s role, purpose,
and modus operandi were substantially the same with respect to
the $20,000 check as with the successfully cashed checks. Lee’s
attempt to distinguish this $20,000 check by emphasizing that it
was a pre-printed business check rather than a hand-written
personal check is unpersuasive. 3 The district court properly
considered the relevant factors under United States v. Pauley
and correctly concluded that the $20,000 check was part of a
“common scheme or plan” pursuant to U.S.S.G. § 1B1.3.
Accordingly, we affirm the sentence imposed by the district
court.
III.
For the aforementioned reasons, the judgment of the
district court is
AFFIRMED.
3
We also reject Lee’s arguments that the check be excluded
from the loss calculations because it was severely damaged and
he had never tried to cash it. The Sentencing Guidelines
provide that the amount of loss for determining sentencing
enhancements is the greater of the actual or intended loss.
U.S.S.G. § 2B1.1 cmt. n. 3(A) (2008). Intended loss is defined
as “the pecuniary harm that was intended to result from the
offense . . . and . . . includes intended pecuniary harm that
would have been impossible or unlikely to occur.” Id. at §
2B1.1 cmt. n. 3(A)(ii). We think that Lee’s alterations to and
retention of the check, in conjunction with his well-established
modus operandi, provided the district court with ample evidence
to conclude that it was an intended loss under the check cashing
scheme.
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