United States v. Almeida, III

United States Court of Appeals
For the First Circuit

No. 12-2265

UNITED STATES OF AMERICA,

Appellee,

v.

ANTHONY E. ALMEIDA III,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Chief Judge,
Stahl and Kayatta, Circuit Judges.

Henry W. Griffin for Appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for Appellee.

April 4, 2014
 STAHL, Circuit Judge. On July 20, 2012, a jury convicted

Anthony Almeida of possessing counterfeit obligations of the United

States, in violation of 18 U.S.C. § 472. The court sentenced

Almeida to fifty-one months' imprisonment. Almeida timely

appealed, challenging a number of evidentiary rulings, the

sufficiency of the evidence to sustain a conviction, and his

sentence. Finding that the district court committed no error in

the proceedings below, we affirm.

I. Facts & Background

On July 5, 2011, Detective Maurice Drouin was pursuing a

vehicle that was traveling with a headlight out on Route 4 in

Turner, Maine, when he noticed a Chevrolet Silverado pickup truck

that failed to yield to his emergency lights. Although Drouin

initially passed the truck in pursuit of the other vehicle, he

later located the truck and pulled it over. A search for the

truck's license plate number on Drouin's mobile data terminal

revealed that the truck was registered to Maynard Martin. The

driver provided a temporary Maine license with no photograph issued

to John Martin. The passenger gave his name as Joshua Almeida. In

fact, the passenger was John Martin and the driver was Anthony

Almeida, Joshua's brother.1

1
This opinion will refer to Anthony Almeida as "Almeida" and
Joshua Almeida as "Joshua."

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 Drouin returned to his cruiser and ran another search on

the data terminal that showed Martin's license was expired and

Joshua's was suspended. Drouin informed the men in the truck of

the results of the search, issued a warning, and let them go. As

the truck headed off, Drouin ran a cross-agency check on John

Martin and Joshua Almeida, retrieving photographs of each. He

determined that the passenger was actually John Martin, and

(erroneously) identified the driver as Joshua Almeida. He also

learned that Joshua Almeida had a history of drug possession and

trafficking.

Drouin pursued the truck again, intending to arrest both

the driver and the passenger for driving identity offenses. When

he stopped the truck, the two occupants had switched places – the

real John Martin was driving and Almeida was in the passenger seat.

Drouin arrested them both. When he handcuffed and patted down

Almeida, Drouin retrieved a wallet from his back pocket. Drouin

opened the wallet and saw a large bundle of cash wrapped in rubber

bands, a manner of carrying money that Drouin associated with drug

traffickers. He put the wallet with the money back in Almeida's

pocket.

After the arrests, Drouin's partner arrived on the scene,

and the two officers called for a K-9 dog to sniff the exterior of

the truck. The dog alerted to the presence of drugs in the truck,

and the dog's handler found a small bag of marijuana in the

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passenger's side door panel. On this basis, Drouin and the other

officers present conducted a full search of the truck.2

During the search, the officers found a large amount of

money wrapped in rubber bands inside a Doritos bag and drug

paraphernalia. Martin stated that the money in the Doritos bag

belonged to him. A dog sniff of the money indicated the presence

of drug residue on the bills. Drouin observed that the money in

the Doritos bag was bundled in the same manner as the money in

Almeida's wallet.

Prior to transporting Martin and Almeida to jail, Drouin

removed the money from Almeida's wallet. He counted the seized

money, placed it in a bag, and retained it as evidence. Drouin

later testified at trial that he believed he had probable cause to

seize the contents of Almeida's wallet as proceeds of drug

trafficking.

At the Androscoggin County Jail, where Almeida and Drouin

were held, there is a policy requiring the staff member who admits

an inmate to conduct a preliminary search for weapons and

contraband. If the staff member finds contraband, the shift

supervisor may turn it over to the originating arresting agency for

further action. In this instance, jail officials found contraband

on Martin and turned it over to Drouin. At some point after Martin

2
Although the magistrate judge discussed the officers' use
of the K-9 at length, those details are not pertinent to the
outcome of this appeal, so we have omitted them here.

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and Almeida were jailed, Drouin learned from a probation officer

that Almeida was Anthony, not his brother Joshua.

Drouin placed the seized items into evidence at the

Androscoggin County Sheriff's Office ("ACSO"). As he was counting

the seized money, he noticed bills that were smaller than others,

and bills with matching serial numbers. Drouin suspected that some

of the money was counterfeit and contacted the United States Secret

Service. Later that day, he met with Secret Service Special Agent

Matt Fasulo, who examined the seized money and concluded that some

of it was counterfeit.

On July 6, 2011, Almeida placed two telephone calls to

his wife from jail. These conversations were recorded. The second

conversation primarily concerned Almeida's efforts to secure bail

money, but Almeida also told his wife, "Throw all my shit – all my

shit needs to be thrown away. You know what I'm sayin? . . . My

suitcase – all that – thrown right away – okay?"

On July 7, 2011, Drouin obtained a warrant to search the

impounded truck for additional evidence related to drug trafficking

or counterfeiting. The search pursuant to the warrant did not

uncover any further evidence. The truck remained at ASCO, subject

to asset forfeiture proceedings initiated by the Secret Service.

As part of those proceedings, Secret Service agents Kelley Erskine

and Joshua Catella performed an inventory search of the truck under

Fasulo's direction. That search yielded, among other items, a

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Canon printer cartridge. An expert testified at trial that the ink

used to produce the counterfeit bills was "consistent with inks

manufactured in Canon inkjet printers and copiers."

While the investigation was in progress, Detective Kelly

Rupert contacted Drouin to inform him about the discovery of

counterfeit bills along Oak Pond Road in Skowhegan, Maine. On June

28, 2011, Travis Pece found $5,950 in loose currency in a pile on

the side of the road ("Oak Pond bills"). He turned them in to the

police, who determined that the money was counterfeit. Subsequent

investigation identified Almeida's fingerprints on two of the Oak

Pond bills. The police also determined that the serial numbers on

some of the genuine bills in Almeida's wallet matched the serial

numbers on several of the Oak Pond bills, as well as some of the

counterfeit bills found in the truck. Fasulo testified at trial

that these genuine bills were "pattern notes" used to manufacture

the matching counterfeit bills.

Almeida was arraigned on August 16, 2011. He pleaded not

guilty to the charge of possessing counterfeit obligations of the

United States, in violation of 18 U.S.C. § 472. After a jury trial

on June 19 and 20, 2012, Almeida was found guilty. On October 15,

2012, the presiding judge sentenced Almeida to fifty-one months'

imprisonment. This appeal followed.

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 II. Analysis

On appeal, Almeida challenges the district court's

decision to admit certain evidence at trial. He also challenges

the court's denial of a motion for acquittal, arguing that there

was insufficient evidence to prove the counterfeiting charge.

Finally, Almeida disputes the reasonableness of his sentence.

A. Motion to Suppress

On September 6, 2011, Almeida filed a motion to suppress

evidence obtained from the officers' search of the truck and from

the seizure of the money in Almeida's wallet. Magistrate Judge

Rich held a hearing on the motion and issued a recommended decision

denying the motion on January 9, 2012. On March 20, 2012, the

district court adopted the recommended decision. "We apply a mixed

standard of review to the district court's denial of a motion to

suppress, reviewing findings of fact for clear error and

conclusions of law . . . de novo." United States v. Bolton, 520

F.3d 80, 82 (1st Cir. 2008).

1. Search of the Truck

In his motion to suppress, Almeida argued that the

warrantless search of the truck violated the Fourth Amendment,

because "[n]o exigency existed which justified a warrantless

search." He also challenges the admission of the evidence gathered

in the inventory search. These arguments fail at a threshold

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issue: whether Almeida had a reasonable expectation of privacy in

the truck. We find that he did not.

"The Fourth Amendment's protection against unreasonable

searches may only be claimed where a defendant demonstrates that he

or she personally has a reasonable expectation of privacy in the

place searched." United States v. Symonevich, 688 F.3d 12, 19 (1st

Cir. 2012). In the context of a vehicle search, a defendant must

show "a property [or] a possessory interest in the automobile" in

order to establish a reasonable expectation of privacy.3 Id.

We have held a person who is "merely a passenger" does

not have a reasonable expectation of privacy in a vehicle, id.

(internal quotation marks and alterations omitted), but in some

circumstances, a person who borrows a vehicle with the owner's

permission may have a reasonable expectation of privacy, see United

States v. Sugar, 322 F. Supp. 2d 85, 94 (D. Mass. 2004) (citing

cases). The facts of this case fall somewhere in between. Almeida

was driving the truck during the initial stop, apparently with

Martin's permission, but during the second stop Martin was driving

and Almeida was the passenger.

3
The Fourth Amendment may also apply when the defendant
shows "an interest in the property seized," Symonevich, 688 F.3d
at 19, but here Almeida never claimed an interest in the
counterfeit bills or any other evidence seized from the truck.

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 No bright-line rule determines whether a person has a

reasonable expectation of privacy in a vehicle; instead the court

considers a number of factors:

ownership, possession, and/or control; historical use of
the property searched or the thing seized; ability to
regulate access; the totality of the surrounding
circumstances; the existence or nonexistence of a
subjective anticipation of privacy; and the objective
reasonableness of such an expectancy under the facts of
a given case. We look, in short, to whether or not the
individual thought of the place (or the article) as a
private one, and treated it as such.

United States v. Aguirre, 839 F.2d 854, 856-57 (1st Cir. 1988)

(citations omitted). In applying these factors to the facts before

us, we take guidance from our decisions in United States v. Lochan,

674 F.2d 960 (1st Cir. 1982), and United States v. Sanchez, 943

F.2d 110 (1st Cir. 1991).

In Lochan, as in this case at least part of the time, the

defendant was driving the car while the owner of the car was in the

passenger seat.4 674 F.2d at 965. The court in Lochan further

noted that the defendant had the car's registration in his pocket

and that he was on a long trip, which might "engender a slightly

greater privacy expectation than would a short trip." Id.

Nevertheless, the court found that other factors weighed more

heavily in favor of finding no expectation of privacy. The court

noted, for example, that the defendant "did not own the car, nor

4
Here, the truck was actually registered to Martin's father,
but in this case that distinction does not affect our analysis.

-9-
was there evidence that he had used the car on other occasions.

There was no evidence as to the responsibility or control [the

defendant] had over the automobile other than the fact that he was

driving it when stopped." Id. Accordingly, the court found that

the defendant "failed to meet his burden of proof of a privacy

expectation." Id.

In Sanchez, the defendant was driving the vehicle with

the apparent permission of its owner (although the court expressed

some doubt on that point). 943 F.2d at 113–14. The court

observed, however, that the defendant "had only a casual possession

of the car. He did not own it, nor, as the district court observed,

was there evidence that he had used the car on other occasions."

Id. The court explained that "a history of regular use of the

[car]" or a "pattern of permission, together with his sole control

on a long trip, would have minimized the informal and temporary

nature of this specific acquisition of the car." Id. at 114. But

in the absence of those circumstances, the court held that the

defendant had not met his burden of proof. Id.

In this case, although Almeida was driving part of the

time, apparently with Martin's permission, he had "only a casual

possession" of the truck. Id. at 113. He did not own it, and he

has shown no pattern of repeated use or control over the truck that

would allow us to conclude that his possession of the truck was

anything more than "informal and temporary." Id. at 114. Almeida

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argues that we should infer an expectation of privacy from the fact

that there was incriminating evidence in the truck: "Considering

that the contents of the truck . . . formed much of the

condemnatory evidence produced at trial, it is logical that

[Almeida] bore a reasonable expectation of privacy with respect to

the area searched and the items seized." This argument goes

nowhere. The existence of incriminating evidence does not by

itself create a reasonable expectation of privacy. If it did, the

Fourth Amendment would apply to any search the reveals

incriminating evidence. That is obviously not the case. See

United States v. Hershenow, 680 F.2d 847, 855 (1st Cir. 1982) ("[A]

legitimate expectation of privacy means more than a subjective

expectation of keeping incriminating evidence hidden.")

Considering the relevant factors as applied in Sanchez

and Lochan, we conclude that Almeida has failed to meet his burden

of proof establishing that he had a reasonable expectation of

privacy in the truck. Thus, he cannot bring a challenge under the

Fourth Amendment to the evidence recovered from the truck, either

in the course of Drouin's warrantless search or the subsequent

inventory search. We therefore affirm the district court's order

denying the motion to suppress with respect to this issue.

2. Seizure of Bills from Almeida's Wallet

Almeida's motion to suppress also challenged Drouin's

seizure of money from his wallet prior to Almeida's transfer to

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jail. The Magistrate Judge recommended denying the motion on two

alternate grounds, the "plain view" exception and the "inevitable

discovery" exception, and the district court adopted the decision.

We affirm on the basis of the inevitable discovery exception.

The application of the inevitable discovery exception

involves three questions:

first, whether the legal means by which the evidence
would have been discovered was truly independent; second,
whether the use of the legal means would have inevitably
led to the discovery of the evidence; and third, whether
applying the inevitable discovery rule would either
provide an incentive for police misconduct or
significantly weaken constitutional protections.

United States v. Almeida, 434 F.3d 25, 28 (1st Cir. 2006).5 Here,

Drouin arrested Almeida and Martin for presenting him with false

identification during the initial stop. Androscoggin County Jail,

where Almeida was booked, has a policy mandating that arrestees be

fully searched and their property removed. If the search uncovers

contraband, the jail routinely turns it over to the arresting

officer. Under these circumstances, the district court held that

"the contents of the wallet inevitably would have been discovered

and seized by an independent, lawful means when Almeida was

processed at the Jail." Almeida presents us with no persuasive

reason to disagree with the district court's conclusion.

Turning to the first question involved in this analysis,

the legal means of discovery in this case were "truly independent,"

5
The 2006 Almeida case is unrelated to the present case.

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because Drouin had probable cause to arrest Almeida for presenting

false identification (and in fact did arrest him on that basis),

regardless of whether he seized the cash. Therefore the arrest and

subsequent seizure of cash during the booking process at the jail

would have occurred independently of the challenged seizure.

Second, the search at the jail would have inevitably

resulted in the seizure of the cash, because it was the jail's

policy to remove an arrestee's property during the booking process.

Almeida does not dispute the existence of the policy, or claim that

the policy was not regularly followed. Instead, he argues that

there is "nothing 'inevitable' about the jails [sic] discovery of

the bills in the wallet that initially fooled a trained detective."

This argument takes the name of the exception too literally.

It is possible, of course, that the jail official might

have missed what Drouin noticed, the irregular size and matching

serial numbers of the counterfeit bills. But we are not looking

for metaphysical certainty. The exception is applicable if there

is a "high degree of probability[] that the evidence would have

been discovered." Almeida, 434 F.3d at 29; see also United States

v. Rogers, 102 F.3d 641, 646 (1st Cir. 1996) ("The term

'inevitable' . . . is something of an overstatement."). There is

no question the bills would have been seized at the jail. The

counterfeit bills might have "fooled" Drouin in the midst of

conducting an arrest, but when he had the opportunity to look at

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the bills without distraction, he recognized them as fake. We have

no trouble concluding that there is a high degree of probability

that the result would have been the same if a jail official had

inspected the bills.

Third, given the particular facts of this case, the

application of this exception will not "provide an incentive for

police misconduct or significantly weaken constitutional

protections." Almeida, 434 F.3d at 28. Drouin arrested Almeida

for reasons unrelated to the seized money. At the time of the

arrest, Drouin was fully aware that the jail would take Alemida's

money and other property when he was booked – he testified that the

money "would have went to the jail with him and I probably would

have just taken it from his property there." Under these

circumstances, application of the exception will not incentivize

unconstitutional behavior, because the seizure of the money gave

the police no particular investigative advantage. See id. at 29.

Therefore, we hold that the inevitable discovery

exception applies to Drouin's seizure of the money in Almeida's

wallet and affirm the district court's denial of Almeida's motion

to suppress with respect to that issue.

B. Motions in Limine

Prior to trial, the government filed a motion in limine

seeking the admission of evidence related to the Oak Pond bills,

which Almeida opposed. Almeida filed a motion in limine to exclude

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evidence that he falsely identified himself to Drouin as Joshua

Almeida during the initial stop. The district court granted the

government's motion and denied Almeida's.

We review these rulings for plain error, because Almeida

did not renew his objection to the challenged evidence at trial.

As we have explained:

[i]f an in limine ruling excludes evidence
unconditionally, the adversely-affected party need take
no additional steps to preserve the issue for appeal,
which means abuse-of-discretion review will control. But
if the ruling is merely tentative and clearly invites the
party to offer the evidence at trial under the ruling's
terms, that party must follow up on the invitation or
else plain-error review will hold sway.

Rodríguez v. Señor Frog's de la Isla, Inc., 642 F.3d 28, 35 (1st

Cir. 2011) (alterations, citations, and internal quotation marks

omitted). Here, while the rulings in limine admitted the

challenged evidence, Almeida has not argued that those rulings were

final rather than tentative, so Almeida's failure to renew his

objection at trial triggers plain error review on appeal. "To

establish plain error, a party must show that there was error, that

it was plain, and that it affected the party's substantial rights;

an appellate court may then notice the error only if it seriously

affect[ed] the fairness, integrity, or public reputation of

judicial proceedings." Long v. Fairbank Reconstruction Corp., 701

F.3d 1, 5 (1st Cir. 2012) (per curiam) (internal quotation marks

omitted). Almeida has not met this high standard.

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 1. The Oak Pond Bills

Almeida claims that evidence related to the Oak Pond

bills was propensity evidence inadmissible under Federal Rule of

Evidence 404(b). According to Almeida, the evidence only tends to

prove that "since he apparently possessed counterfeit money on a

prior occasion, he must have possessed it on the occasion of his

arrest." He argues further that "[e]ven if such evidence suggested

intent . . . [it] included 'bad character or propensity as a

necessary link in the inferential chain' and any probative value

was substantially outweighed by the danger of unfair prejudice."

The district court questioned whether evidence of the Oak

Pond bills was propensity evidence at all, suggesting that "[i]t's

arguably part of the res gestae of the transaction in terms of the

defendant's alleged use of certain pattern bills in relationship to

what was found in the two locations." It decided, however, that

even "[i]f it is Rule 404(b) evidence, . . . it does come in under

404(b)(2) because it can be used to show evidence of [absence of]

mistake or lack of accident, knowledge of what was going on[,] and

I don't find any unfair prejudice under Rule 403." We see no error

at all in this decision, much less plain error.

This circuit uses a two-part test to evaluate the

admissibility of evidence under Rule 404(b). United States v.

Appolon, 715 F.3d 362, 373 (1st Cir. 2013). We determine first

whether the proffered evidence has "special relevance, such as

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proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident." Id. at 372–73

(citation and internal quotation marks omitted). "If it does, we

then apply Rule 403 to ascertain whether the evidence's probative

value is substantially outweighed by the danger of unfair

prejudice." Id. at 373.

The evidence of the Oak Pond bills easily satisfies both

parts of the test. The existence of counterfeit bills at a

separate location, bearing Almeida's fingerprints and serial

numbers matching pattern bills found in Almeida's wallet, is

probative of Almeida's knowledge and intent regarding the

counterfeit money found in the truck – the jury could decide that

this evidence weighed against the conclusion that Almeida's

possession of counterfeit bills in the truck was unknowing or

unintentional. Thus, we agree with the district court that this

evidence has "special relevance." Id.

We also agree with the district court that this evidence

is not unfairly prejudicial. As we have observed numerous times,

"all evidence is meant to be prejudicial; it is only unfair

prejudice which must be avoided." Id. The term "unfair prejudice"

usually refers to "evidence that invites the jury to render a

verdict on an improper emotional basis." United States v.

Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000). Almeida has not

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shown anything of the sort here. In sum, we find no error in the

district court's decision to admit evidence of the Oak Pond bills.

2. False Identification

Almeida also raises a Rule 404(b) challenge to the

evidence related to his false identification. He argues that he

"was charged with a crime saturated in the concept of deceit. To

allow testimony regarding his provision of deceitful information

. . . regarding ultimately uncharged conduct was a clear invitation

to the jury to reach a conclusion based on inappropriate character

evidence."

Relying on United States v. Wallace, 461 F.3d 15 (1st

Cir. 2006), the district court admitted the evidence as "probative

of a guilty [conscience] or consciousness of guilt." It further

explained that to the extent the evidence fell under Rule 404(b),

"it would be admissible under 404(b)(2) because it does go to proof

of intent and knowledge and I don't find unfair prejudice under

Rule 403." We see no error in the district court's decision.

On appeal, Almeida claims that "the 'consciousness of

guilt' referred to by the trial court was consciousness of [an]

uncharged motor vehicle offense and not the eventual federal

charges that were not being investigated at the time he was

arrested." But Wallace forecloses this argument. In that case,

"we rejected a broad rule that would bar alias evidence whenever a

defendant commits more than one crime," because "such a rule would

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ignore the substantial possibility that the defendant is using the

alias to evade detection for all his crimes, including the one

charged." Wallace, 461 F.3d at 26 (alteration and internal

quotation marks omitted).

There was no reason in this case for the district court

to prevent the jury from considering whether the false

identification revealed a consciousness of guilt of counterfeiting,

even if Almeida was engaged in other criminal activity at the same

time. While we have warned that such evidence "is controversial

and must be handled with care," id. at 25 (alteration and internal

quotation marks omitted), the district court was well aware of our

admonition and offered the defense a cautionary instruction for the

jury.

Under these circumstances, the district court did not err

in holding that the evidence was sufficiently probative to be

admissible under Rule 404(b). Neither did it err in finding no

unfair prejudice under Rule 403. As with the evidence of the Oak

Pond bills, Almeida has failed to point out any unfairness beyond

the ordinary prejudice inherent in all evidence. We therefore

affirm the district court's denial of Almeida's motion in limine

seeking the exclusion of evidence related to his false

identification.

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C. Sufficiency of the Evidence

At trial, after the close of the government's case,

Almeida made an oral motion for acquittal, arguing that the

government had failed to meet its burden to prove Almeida's intent

to defraud as required by 18 U.S.C. § 472. The district court

decided there was enough evidence of intent to go to the jury and

denied the motion. On appeal, Almeida renews his argument that the

evidence presented at trial was insufficient to prove intent. We

disagree.

We review claims of insufficient evidence de novo,

"considering whether the evidence, viewed in the light most

favorable to the prosecution, would allow a rational jury to find

all the elements of the crime beyond a reasonable doubt." United

States v. Mousli, 511 F.3d 7, 14 (1st Cir. 2007) (internal

quotation marks omitted); see also United States v. Hall, 434 F.3d

42, 49 (1st Cir. 2006). "The requisite fraudulent intent required

by . . . 18 U.S.C. § 472[] may be inferred from surrounding

circumstances or circumstantial evidence and thus need not be

proven directly. Courts may look to surrounding circumstances to

supply inferences of knowledge which adequately prove intent."

Mousli, 511 F.3d at 16 (citations omitted); see also United States

v. Silva, 742 F.3d 1, 9 (1st Cir. 2014).

There is no need to catalogue every piece of evidence

presented at trial; two key points will suffice. The government

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presented evidence that Almeida possessed fourteen pattern notes

that matched numerous counterfeit bills found in the truck and

along Oak Pond Road. The jury could easily infer from the "number

and variety of bills" that Almeida's possession of them was not

unwitting or coincidental; rather he "was engaged in an ongoing

effort to produce . . . fake currency with the intent of using it."

Mousli, 511 F.3d at 16. The jury also heard evidence that twelve

counterfeit bills with serial numbers matching the pattern bills

were put into circulation in areas near where Almeida lived and

vacationed. That evidence "support[s] an inference that [Almeida]

had previously passed the bills in commercial transactions."

Silva, 742 F.3d at 10. These facts provide sufficient

circumstantial evidence of intent to sustain a conviction under 18

U.S.C. § 472.

Almeida's suggestion that the counterfeit bills were of

such poor quality that he could not have intended to use them to

defraud is unpersuasive. First, it directly contradicts his

argument that the discovery of the counterfeit bills at the jail

was not inevitable because the bills looked authentic enough to

fool Officer Drouin at the scene of the arrest. But even setting

that contradiction aside, there was ample evidence that the bills

were of sufficient quality for a reasonable jury to infer Almeida's

intent to defraud. Twelve counterfeit bills matching the pattern

bills found in Almeida's possession were successfully passed around

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the time of Almeida's arrest and were discovered only when the

people who had accepted them in good faith presented them to banks.

Moreover, even were there not "evidence [of] a high degree of

likeness" between the counterfeit bills and the real ones, that

would not "prevent proof by other means of intent to defraud."

Mousli 511 F.3d at 16. Here, the government presented enough

circumstantial evidence to allow a jury to infer Almeida's intent

to defraud. Thus, we affirm the district court's denial of the

motion for acquittal.

D. Sentencing

Almeida attacks his fifty-one-month sentence on three

fronts: the calculation of his criminal history category ("CHC"),

the application of sentencing guideline enhancements to his base

offense level ("BOL"), and the disparity between his sentence and

that of his co-defendant, Martin. He has failed to identify any

errors, however, and we therefore affirm the sentence as handed

down by the district court.

1. Criminal History Category

With respect to his CHC, Almeida does not contend that

the district court made any factual errors in the calculation.

Rather, he argues that a downward departure was appropriate in this

case because the CHC "significantly over-represents his criminal

history." The district court considered this argument at the

sentencing hearing and came to the opposite conclusion: "I find

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that the criminal history here does not overrepresent in light of

the defendant's history of recurrent criminal law violations,

despite sentences that have been imposed which involve custody of

either small amounts or large amounts."

We review a district court's decision whether to depart

from the CHC for abuse of discretion. United States v. Tavares, 93

F.3d 10, 17 (1st Cir. 1996). Here, the district court did not

commit an error of any sort; it simply disagreed with Almeida about

the seriousness of his criminal history. A disagreement of that

nature does not approach an abuse of discretion. Accordingly, it

is not grounds for reversal on appeal.

2. Sentencing Guideline Enhancements

Almeida claims that the district court erred in applying

enhancements to his BOL for loss in excess of $10,000 under

U.S.S.G. § 2B1.1(b)(1)(C), the manufacture or production of

counterfeit obligations under U.S.S.G. § 2B5.1(b)(2), and

obstruction of justice under U.S.S.G. § 3C1.1. "As a general

matter, we review a sentencing court's legal determinations of the

Sentencing Guidelines' meaning and scope de novo and its factual

determinations for clear error." United States v. Bryant, 571 F.3d

147, 153 (1st Cir. 2009); see also United States v. Doe, 741 F.3d

217, 235 (1st Cir. 2013). It is the government's burden at

sentencing to prove sentencing enhancement factors by a

preponderance of the evidence, and a district court may base its

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determinations on "any evidence that it reasonably finds to be

reliable." United States v. Walker, 665 F.3d 212, 232 (1st Cir.

2011).

Section 2B1.1 increases a defendant's BOL for various

forms of theft and fraud, including counterfeiting, based on the

amount of loss caused by the defendant. U.S.S.G. § 2B1.1; United

States v. Appollon, 695 F.3d 44, 66 (1st Cir. 2012). As a general

rule, we measure loss under § 2B1.1 as "the greater of actual loss

or intended loss." Appollon, 695 F.3d at 66. "Intended loss is

the loss that the defendant could have reasonably expected to occur

at the time he or she perpetuated the fraud." Id. at 67.

Here, the district court imposed a four-level enhancement

under § 2B1.1(b)(1)(C) for a loss greater than $10,000. It found

as a factual matter that Almeida was responsible for the

counterfeit money in the truck as well as the Oak Pond bills,

totaling $10,270, based on his possession of the pattern bills and

his fingerprints on the Oak Pond bills. These facts are a

sufficient basis for the district court to infer by a preponderance

of the evidence that Almeida was responsible for producing over

$10,000 in counterfeit bills. It follows that Almeida could

reasonably expect over $10,000 in loss to result. Therefore the

court did not err in applying § 2B1.1(b)(1)(C).

Section 2B5.1 provides for a two-level enhancement "if

the defendant . . . manufactured or produced any counterfeit

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obligation or security of the United States, or possessed or had

custody of or control over a counterfeiting device or materials

used for counterfeiting." U.S.S.G. § 2B5.1(b)(2)(A). On appeal,

Almeida argues primarily that pattern notes are not "a

counterfeiting device or materials used for counterfeiting." The

district court stated quite clearly, however, that it was "not

going to rely on the possession of material used for

counterfeiting, but instead that the defendant did manufacture or

produce counterfeit obligations." It based this conclusion on

Almeida's possession of the pattern notes and the counterfeit bills

that were produced with them. Again, we find this conclusion

sufficiently supported by the evidence. Thus, Almeida's challenge

to the application of § 2B5.1(b)(2)(A) fails.

The third enhancement imposed by the court was two levels

for obstruction of justice under § 3C1.1. That enhancement was

based on the court's interpretation of the phone calls Almeida made

to his wife from jail, in which he told her "all my shit needs to

be thrown away." The district court reasonably interpreted this

statement as an instruction to dispose of evidence. Having

reviewed the transcript of the calls, we find that the district

court's understanding of Almeida's statement is more plausible than

the interpretation Almeida offers on appeal – that he was referring

to a suitcase full of clothes that he brought with him on vacation.

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 Almeida also argues that he could not have been

obstructing the investigation of the counterfeiting charge, because

at the time of the calls he was only facing the false

identification charge. But during the call recorded at 4:39 on

July 6, 2011, prior to the call where Almeida told his wife to

dispose of his things, his wife stated that "they had the Secret

Service looking into everything and stuff like that." The district

court could infer from that statement that Almeida was aware of the

counterfeiting investigation at that time. In sum, the district

court did not err in applying a two-level enhancement for

obstruction of justice under § 3C1.1.

3. Sentencing Disparity

Finally, Almeida points to the disparity between his

sentence of fifty-one months and Martin's sentence of only six

months. He claims that "[t]o deliver a sentence that is

potentially ten times the sentence of a co-defendant is simply not

reasonable." He does not fully develop an argument on this point,

but we construe it as a challenge to the substantive reasonableness

of the sentence. We review substantive reasonableness for abuse of

discretion. United States v. Walker, 665 F.3d 212, 232 (1st Cir.

2011). "[T]he linchpin of a reasonable sentence is a plausible

sentencing rationale and a defensible result." United States v.

Martin, 520 F.3d 87, 96 (1st Cir. 2008).

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 Here, Almeida fails to offer any explanation as to why

the sentences of the two co-defendants should be less disparate.

Merely pointing out the disparity is plainly insufficient to

establish unreasonableness. There are many valid reasons why two

co-defendants might receive dramatically different sentences, and

the district court expressly identified the reasons applicable in

this case. Martin accepted responsibility; he was not connected to

the Oak Pond bills; and he did not engage in obstruction. Under

these circumstances, the district court did not abuse its

discretion in sentencing Almeida to a much harsher penalty than

Martin.

III. Conclusion

For the foregoing reasons, we AFFIRM Almeida's conviction

and sentence.

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