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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16246 & 16-17312
Non-Argument Calendar
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D.C. Docket No. 0:16-cr-60035-BB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KARRLOS JAAMIN KAGERA TYNDALE,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(June 29, 2017)
Before WILSON, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Karrlos Jaamin Kagera Tyndale appeals his convictions and sentences for
making a false statement on a passport application, in violation of 18 U.S.C.
§ 1542, and for aggravated identity theft, in violation of 18 U.S.C. § 1028A. On
appeal, Tyndale argues that there was insufficient evidence to sustain his
convictions and that his sentences were procedurally and substantively
unreasonable.
I.
We review de novo whether the evidence was sufficient to sustain a criminal
conviction, “viewing the evidence in the light most favorable to the government,
and drawing all reasonable factual inferences in favor of the jury’s verdict.”
United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). The evidence will
be sufficient if “a reasonable trier of fact could find that [it] established [the
defendant’s] guilt beyond a reasonable doubt.” Id. at 1285 (internal quotation
marks omitted).
To convict a defendant for making a false statement in an application for a
U.S. passport, the government must prove that the defendant “willfully and
knowingly ma[de a] false statement in an application for [a U.S.] passport with
[the] intent to induce or secure the issuance of the passport.” See 18 U.S.C.
§ 1542.
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To convict a defendant for aggravated identity theft, the government must
prove the “knowing[] transfer[], possess[ion], or use[], without lawful authority,
[of] a means of identification of another person,” in relation to certain enumerated
felonies. 18 U.S.C. § 1028A(a)(1), (c). A violation of 18 U.S.C. § 1542 is one of
the enumerated felonies. Id. § 1028A(c)(7). “A means of identification can be a
name, social security number, date of birth, or driver’s license number, among
other things.” See United States v. Doe, 661 F.3d 550, 561 (11th Cir. 2011)
(internal quotation marks omitted).
The Supreme Court has held that Ҥ 1028A(a)(1) requires the [g]overnment
to show that the defendant knew that the means of identification at issue belonged
to another person.” See Flores-Figueroa v. United States, 556 U.S. 646, 657, 129
S. Ct. 1886, 1894 (2009). We have held that this element of the aggravated
identity theft statute can be satisfied by circumstantial evidence. See United States
v. Holmes, 595 F.3d 1255, 1258 (11th Cir. 2010) (per curiam). In Holmes, we
concluded that there was sufficient evidence that the defendant knew the means of
identification belonged to another person where the defendant used the victim’s
social security card and birth certificate to successfully apply for a passport and
Florida driver’s license and identification card. 595 F.3d at 1256–58. Witnesses
from the Florida DMV and the U.S. Department of State testified that the
identifying information submitted in the applications was subject to verification.
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Id. at 1257. Because a reasonable jury could infer that the defendant was aware
that there were verification procedures, the successful approval of the driver’s
license and passport applications was evidence that the defendant knew the social
security card and birth certificate belonged to a real person when she later used
them in connection with the offenses. Id. at 1258.
Here, there was sufficient evidence to sustain Tyndale’s convictions. The
jury heard testimony during trial that the passport acceptance clerk ensures that the
photographs match the individual presenting the application. The jury was free to
compare the photographs from the fraudulent passport application with Tyndale’s
physical appearance at trial. Based on this circumstantial evidence the jury was
free to conclude that Tyndale submitted the fraudulent passport application. Also,
the jury was free to conclude that Tyndale’s use of the identifying information to
successfully obtain a Florida driver’s license was indicative of his knowledge that
the identifying information belonged to a real person.
II.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. See Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007).
Reviewing a sentence for reasonableness consists of a two-step process,
whereby we ensure that the sentence is procedurally and substantively reasonable.
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See id., 552 U.S. at 51, 128 S. Ct. at 597. “The party challenging the sentence
bears the burden to show that [the sentence] is unreasonable in light of the record
and the § 3553(a) factors.” See United States v. Tome, 611 F.3d 1371, 1378
(11th Cir. 2010). We will reverse only if “left with the definite and firm conviction
that the district court committed a clear error of judgment in weighing the
§ 3553(a) factors by arriving at a sentence that lies outside the range of reasonable
sentences dictated by the facts of the case.” See United States v. Irey, 612 F.3d
1160, 1190 (11th Cir. 2010) (en banc) (internal quotation marks omitted).
A sentence is procedurally unreasonable if the district court erred in
calculating the guideline range, treated the Sentencing Guidelines as mandatory,
failed to consider the § 3553(a) factors, selected a sentence based on clearly
erroneous facts, or failed to adequately explain the sentence. See Gall, 552 U.S.
at 51, 128 S. Ct. at 597. The district court is generally not required to explicitly
discuss each of the § 3533(a) factors, and consideration plus a statement that it
took the factors into account is sufficient. See United States v. Sanchez, 586 F.3d
918, 936 (11th Cir. 2009).
Here, the district court committed no procedural error when sentencing
Tyndale. The district court noted that the Guidelines range was advisory, noted
that it considered the § 3553(a) factors, did not rely on an inappropriate sentencing
factor, and adequately explained the sentence.
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We examine whether a sentence is substantively reasonable in light of “the
totality of the circumstances.” See Gall, 552 U.S. at 51, 128 S. Ct. at 597. The
district court must impose a sentence “sufficient, but not greater than necessary, to
comply with the purposes” listed in § 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. See 18 U.S.C. § 3553(a)(2). In imposing a particular
sentence, the 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 need to avoid unwarranted sentencing
disparities, and the need to provide restitution to victims. Id. § 3553(a)(1), (3)–(4),
(6)–(7).
Absent clear error, we will not reweigh the § 3553(a) factors. See United
States v. Langston, 590 F.3d 1226, 1237 (11th Cir. 2009). “A district court abuses
its discretion when it (1) fails to afford consideration to relevant factors that were
due significant weight, (2) gives significant weight to an improper or irrelevant
factor, or (3) commits a clear error of judgment in considering the proper factors.”
Irey, 612 F.3d at 1189 (internal quotation marks omitted). That a sentence falls
below a statutory maximum penalty is an indicator of reasonableness. See United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam) (noting that
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the defendant’s sentence was “well below” the statutory maximum when analyzing
and upholding a sentence as substantively reasonable).
Tyndale’s sentence was not substantively unreasonable. Tyndale sought and
successfully obtained a passport after having stolen an individual’s identity.
Tyndale’s conduct caused an individual to fail to obtain a legitimate passport and
lose job opportunities. The district court did consider the letters provided in
support of Tyndale and how they reflected on his character, his support of his
family, the circumstances of the offense, and the seriousness of the crime.
Furthermore, Tyndale’s 34-month sentence was below the 10-year statutory
maximum penalty for passport fraud, 18 U.S.C. § 1542, which is an indication of
its reasonableness. See Gonzalez, 550 F.3d at 1324. Tyndale seeks to have the
factors considered by the district court reweighed and that is something we will not
do absent clear error. See Langston, 590 F.3d at 1237.
Accordingly, we affirm.
AFFIRMED.
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