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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-13509
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20816-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM GARCIA,
a.k.a. Willie,
a.k.a. Jorge W. Perez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(December 11, 2015)
Before TJOFLAT, JORDON and JULIE CARNES, Circuit Judges.
PER CURIAM:
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In a multi-count indictment, William Garcia and Assnay Fernandez were
charged with conspiracy to produce, use and traffic counterfeit access devices, i.e.,
counterfeit credit cards and debit cards, in violation of 18 U.S.C. § 1029(a)(1), and
Garcia was charged in one count of one count of credit card fraud, in violation of
18 U.S.C. § 1029(a)(1) and (2), and thirteen counts of aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1) and 2. Fernandez pled guilty to the
conspiracy charge. Garcia stood trial, and the jury convicted him on all counts
except three of the aggravated identity theft counts. The District Court sentenced
Garcia to prison sentences totaling 112 months. He appeals his convictions,
contending that the evidence failed to establish that he was using the counterfeit
credit cards. He appeals his sentences as procedurally and substantive
unreasonable. We consider first Garcia’s appeal of his convictions, then address
the appeal of his sentences.
I.
We review the sufficiency of evidence de novo, taking the evidence in the
light most favorable to the Government and accepting all reasonable inferences in
favor of the verdicts. United States v. Mendez, 528 F.3d 811, 814 (11th Cir. 2008).
The question is whether a reasonable jury could have found the defendant guilty
beyond a reasonable doubt. United States v. Silvestri, 409 F.3d 1311, 1327 (11th
Cir. 2005). Credibility questions are for the jury. We assume that the jury
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answered them in a way that supports their verdicts. United States v. Jiminez, 564
F.3d 1280, 1285 (11th Cir. 2009).
18 U.S.C. § 1029(a)(1) criminalizes “knowingly and with intent to defraud
produc[ing], us[ing], or traffic[king] in one or more counterfeit access devices.”
18 U.S.C. § 1029(a)(1). Intent to defraud refers to “the specific intent to deceive or
cheat, for the purpose of either causing some financial loss to another, or bringing
about some financial gain to one’s self.” United States v. Klopf, 423 F.3d 1228,
1240 (11th Cir. 2005) (quotation omitted). Further, a defendant may be convicted
for conspiring to violate § 1029(a)(1) if the government shows: (1) an agreement
existed between at least two people to commit a crime; (2) the defendant
knowingly and voluntarily joined or participated in the conspiracy; and (3) a
conspirator performed an overt act in furtherance of the agreement. United States
v. Ndiaye, 434 F.3d 1270, 1294 (11th Cir. 2006).
Additionally, 18 U.S.C. § 1028A(a)(1) states that “[w]hoever, during and in
relation to any felony violation enumerated in subsection (c), knowingly transfers,
possesses, or uses, without lawful authority, a means of identification of another
person shall, in addition to the punishment provided for such felony, be sentenced
to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1). Among the
felonies enumerated in subsection (c) is “any provision contained in this chapter
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(relating to fraud and false statements), other than this section or section
1028(a)(7).” 18 U.S.C. § 1028A(c)(4).
At the time he was committing these offenses, Garcia was a detective with
the Sweetwater Police Department. The Government’s case against him was based
on his accomplices, including Assay Fernandez and Richard Munoz, formerly a
detective with the City of South Miami Police Department, law enforcement
officers, his victims, and audio and video recordings of his calls and meetings with
his accomplices. A reasonable jury could have found him guilty of credit card
fraud, conspiracy to commit credit card fraud, and aggravated identity theft.
Although he contests the credibility of prosecution witnesses, their credibility was
a matter for the jury to decide.
II.
Garcia claims that his sentences are procedurally unreasonable because the
District Court, in determining the appropriate sentence range under the Sentencing
Guidelines, erred in (1) determining the loss amount under U.S.S.G.
§ 2B1.1(b)(1)(B); (2) applying a two-level enhancement under U.S.S.G.
§ 2B1.1(b)(11)(B) for producing or trafficking counterfeit access devices; (3)
double counting Guidelines provisions; and (4) imposing consecutive sentences.
Garcia claims that his sentences are substantively unreasonable because they
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cannot be squared with the sentencing purposes, or factors, set out in 18 U.S.C. §
3553(a). We begin with the procedural issues.
A.
U.S.S.G. § 2B1.1(b)(1)(B) provides that if the loss attributable to the
defendant exceeds $5,000, but is less than $10,000, the defendant is subject to a 2-
level increase in his offense level. U.S.S.G. § 2B1.1(b)(1)(B). The Guidelines
state that, in the case of counterfeit access devices, loss includes any unauthorized
charges and “shall be not less than $500 per access device.” Id. § 2B1.1, comment.
(n.3(F)(i)). The Guidelines further define “loss” as “the greater of actual loss or
intended loss.” Id. § 2B1.1, comment. (n.3(A)). Actual loss is the “reasonably
foreseeable pecuniary harm that resulted from the offense,” while intended loss is
the “pecuniary harm that was intended to result from the offense,” even if the harm
was “impossible or unlikely to occur.” Id. § 2B1.1, comment. (n.3(A)(i)-(ii)).
“Reasonably foreseeable pecuniary harm” means pecuniary harm that the
defendant knew or, under the circumstances, reasonably should have known, was a
potential result of the offense. Id. § 2B1.1, comment. (n.3(A)(iv)).
While “estimates are permissible, courts must not speculate concerning the
existence of a fact which would permit a more severe sentence under the
guidelines.” United States v. Bradley, 644 F.3d 1213, 1290 (11th Cir. 2011)
(quotation omitted). When the loss amount is at issue, the Government must
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support its loss calculation with “reliable and specific evidence.” Id. (quotation
omitted). In addition, the district court must make specific factual findings
sufficient to support the Government’s claimed loss amount attributable to a
defendant. United States v. Gupta, 463 F.3d 1182, 1200 (11th Cir. 2006). Where
the defendant “submit[s] no proof that the Government’s averages, estimates, or
results are so wildly inaccurate as to be unreasonable,” the district court “d[oes]
not engage in the kind of speculation forbidden by the Sentencing Guidelines.”
Bradley, 644 F.3d at 1292.
We review the court’s amount-of-loss determination for clear error. United
States v. Grant, 431 F.3d 760, 762 (11th Cir. 2005). Garcia has not shown that a
loss amount based on the 14 counterfeit credit cards attributed to him was “so
wildly inaccurate as to be unreasonable” and thus erroneous. See Bradley, 644
F.3d at 1292. The 14-card number was determined based on testimony that Garcia
possessed 8 cards from Officer Ricardo De Armas, received multiple cards from
Luis Camacho, and provided his own credit card to produce more counterfeit
cards. Such evidence led to a permissible estimate of 14 cards that Garcia was
directly involved with in the course of his criminal activity. In short, the court did
not clearly err in attributing 14 cards to Garcia in calculating the loss amount.
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U.S.S.G. § 2B1.1(b)(11)(B) provides a two-level enhancement of the offense
level if the offense involved the “production or trafficking” of any “unauthorized
access device or counterfeit access device.” U.S.S.G. § 2B1.1(b)(11)(B)(i).
“Production” includes manufacture, design, alteration, authentication, duplication,
or assembly. Id. § 2B1.1, comment. (n.10(A)). “Unauthorized access device,” as
defined in § 1029(e)(3), includes any access device that is lost, stolen, expired,
revoked, canceled, or obtained with intent to defraud. 18 U.S.C. § 1029(e)(3).
Unauthorized credit cards are unauthorized access devices. United States v.
Morris, 81 F.3d 131, 134 (11th Cir. 1996). Specific offense enhancements are
determined by “all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant.” U.S.S.G.
§ 1B1.3(a)(1)(A). Since the two-level increase only affects the Guidelines
calculation, and not the statutory minimum or maximum, the fact of “production or
trafficking” need not be submitted to a jury under Alleyne.1 United States v.
Charles, 757 F.3d 1222, 1225-26 (11th Cir. 2014).
Several witnesses testified that Garcia had used the embossing machine and
called the merchant number to confirm valid card numbers. Witnesses also
testified that Garcia was present in Camacho’s home while counterfeit cards were
being produced. Thus, there was sufficient evidence for the court to enhance
1
Alleyne v. United States, 570 U.S. ___, ___, 133 S. Ct. 2151, 2161, 186 L. Ed. 2d 314 (2013).
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Garcia’s sentence for “production or trafficking” of “counterfeit access devices”
under U.S.S.G. § 2B1.1(b)(11)(B).
Generally, an issue of “double counting” is a question of law that we review
de novo. United States v. Naves, 252 F.3d 1166, 1168 (11th Cir. 2001). However,
when the objection to “double counting” is raised for the first time on appeal, the
objection we review only for plain error. Id. Under plain error review, the
defendant must show (1) error, (2) that is plain, and (3) that affects substantial
rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If these
elements are met, we may recognize the error, in our discretion, if the error
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. Plain error cannot be established where the explicit language of
a statute or rule does not resolve an issue and there is no precedent from the
Supreme Court or this Court directly resolving it. United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir. 2003).
“Impermissible double counting occurs only when one part of the Guidelines
is applied to increase a defendant’s punishment on account of a kind of harm that
has already been fully accounted for by application of another part of the
Guidelines.” Naves, 252 F.3d at 1168. Double counting is permissible when “the
Sentencing Commission intended the result” and “each section concerns
conceptually separate notions related to sentencing.” Id. (quotation omitted).
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The District Court clearly found the enhancement for abuse of a position of
trust to be insufficient to account for Garcia’s conduct in committing this criminal
activity while working as a detective for the Sweetwater Police Department. As a
result, the harm was not fully accounted for in the enhancement alone, and the
court acted within its discretion in considering this factor under § 3553(a) when
crafting a fair sentence. There is no error here, much less plain error.
We review the District Court’s imposition of a consecutive sentence for
abuse of discretion. United States v. Covington, 565 F.3d 1336, 1346 (11th Cir.
2009). With regard to sentences for violations of 18 U.S.C. § 1028A(a)(1), a
defendant must serve a term of two years’ imprisonment, which shall run
consecutively to any term of imprisonment imposed for any other offense.
18 U.S.C. §§ 1028A(a)(1), (b)(2). Where a defendant has multiple convictions
under § 1028A, the court has discretion to determine whether these sentences
should run concurrently with each other. 18 U.S.C. § 1028A(b)(4). The
commentary for § 5G1.2 of the Guidelines indicates that, in making this
determination, the court should consider the nature and seriousness of the offenses,
whether the offenses may be grouped under U.S.S.G. § 3D1.2, and whether the §
3553(a)(2) purposes are better served by imposing a concurrent or a consecutive
sentence. U.S.S.G. § 5G1.2, comment. (n.2(B)). We have held that a court may,
based on the seriousness of the defendant’s offenses, order that a defendant’s
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sentences for multiple convictions under § 1028A run consecutively to each other,
even though generally concurrent sentences would be imposed for offenses
groupable under § 3D1.2. United States v. Bonilla, 579 F.3d 1233, 1244-45 (11th
Cir. 2009).
We find no abuse of discretion in the court’s running some of the aggravated
identity theft convictions concurrently and others consecutively based on the date
of the offense. The court correctly found that these sentences were required to run
consecutive to sentences for any other offense. The court made clear that, absent
the discretion to run the aggravated identity theft convictions consecutively,
resulting in a higher total sentence, it would have varied the sentences upward.
The court, therefore, did not abuse its discretion in determining that running some
of the sentences consecutively was proper to provide adequate punishment.
B.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591,
169 L. Ed. 2d 445 (2007). The substantive reasonableness of a sentence is
determined in light of the totality of the circumstances. Id. at 51, 128 S. Ct. at 597.
The party challenging the sentence bears the burden of showing it is unreasonable
in light of the record and the 18 U.S.C. § 3553(a) sentencing factors. United States
v. Valnor, 451 F.3d 744, 750 (11th Cir. 2006). We will not vacate a sentence as
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substantively unreasonable unless left with the definite and firm conviction that the
district court clearly erred in weighing the 18 U.S.C. § 3553(a) factors and issued a
sentence outside the range of reasonable sentences. Rodriguez, 628 F.3d at 1264-
65.
A district court is required to impose a sentence “sufficient, but not greater
than necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2),
including the need to reflect the seriousness of the offense, promote respect for the
law, provide just punishment for the offense, deter criminal conduct, and protect
the public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2).
In imposing a particular sentence, the district court must also consider the nature
and circumstances of the offense, the history and characteristics of the defendant,
the kinds of sentences available, the applicable guideline range, the pertinent
policy statements of the Sentencing Commission, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. 18
U.S.C. § 3553(a)(1),(3)-(7).
Garcia has not shown that his total 112-month sentence is substantively
unreasonable. Despite his contentions, the District Court clearly considered the
§ 3553(a) factors in crafting the term of incarceration. Although the court could
have imposed a lower term, after consideration of all the factors it crafted a term
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would serve the goals of § 3553(a). Thus, the court did not abuse its discretion in
sentencing Garcia to a total 112-month sentence.
For the foregoing reasons, Garcia’s convictions and sentences are
AFFIRMED.
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