United States v. Jorge Acevedo ( 2021 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12208
Non-Argument Calendar
________________________
D.C. Docket No. 0:18-cr-60309-WJZ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ACEVEDO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 27, 2021)
Before MARTIN, JILL PRYOR and BRANCH, Circuit Judges.
PER CURIAM:
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A jury convicted Jorge Acevedo of possessing 15 or more unauthorized
access devices, possessing access device-making equipment, and aggravated
identity theft. Following his convictions, the district court imposed a sentence of
45 months’ imprisonment. Acevedo appeals his convictions and his resulting
sentence, arguing that the district court erred in admitting evidence of his prior
uncharged conduct at trial, denying his motion for judgment of acquittal, and
calculating the loss amount for which it held him accountable at sentencing.
Acevedo also argues that his sentence is substantively unreasonable. After careful
review, we affirm.
I. BACKGROUND
Acevedo was indicted and charged with two counts of possessing 15 or more
unauthorized access devices,1 in violation of 18 U.S.C. § 1029(a)(3) (Counts One
and Three); two counts of possessing access device-making equipment,2 in
violation of 18 U.S.C. § 1029(a)(4) (Counts Two and Four); and two counts of
aggravated identity theft, in violation of 18 U.S.C. § 1028A(a) (Counts Five and
Six). Specifically, the indictment alleged that on two occasions, Acevedo used a
credit card skimming device to obtain more than 15 credit and debit card account
1
The definition of “access device” includes credit cards, debit cards, and bank account
numbers. United States v. Wright, 862 F.3d 1265, 1275 (11th Cir. 2017) (collecting cases); see
also 18 U.S.C. § 1029(e)(1).
2
“Device-making equipment” means any equipment designed or primarily used for
making an access device or a counterfeit access device. 18 U.S.C. § 1029(e)(6).
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numbers issued to other people. The underlying criminal complaint alleged that on
both occasions Acevedo had installed a credit card skimmer in a gas pump at a
Chevron gas station in Coral Springs, Florida. After a three-day trial, a jury found
Acevedo guilty on all counts. We begin by summarizing the evidence adduced at
trial, including the evidence introduced under Federal Rule of Evidence 404(b).
We then review the post-conviction proceedings.
A. The Criminal Trial
a. Pre-Trial Dispute Regarding Admission of Prior Conduct Under
Rule 404(b)
Before Acevedo’s trial began, the government announced its intent to
introduce evidence under Federal Rule of Evidence 404(b) of two prior uncharged
incidents where Acevedo allegedly installed or attempted to install credit card
skimmers in gas pumps. The government sought to introduce this evidence to
prove Acevedo’s identity, modus operandi, knowledge, motive, intent, and lack of
mistake. As to the first incident, the government alleged that police found a
skimmer in a gas pump at a Valero gas station (“Valero station”) in Coral Springs.
The pump’s protective seal had been tampered with and Acevedo’s fingerprint was
later found on the seal. The second incident occurred about six months later; a gas
station attendant observed a man attempting to open a pump at a Chevron gas
station (“Chevron station”), which was across the street from the Valero station.
When the witness told the man to stop, he got into a van and left. The police did
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not find a skimmer in the pump, but they investigated the van’s tag number and
found that Acevedo was one of its authorized drivers. The witness then identified
Acevedo as the man he saw trying to open the gas pump.
Acevedo objected to the admission of this evidence, arguing that the
government had not established a proper purpose for admitting it, that it was
unduly prejudicial, and that it was not inextricably intertwined with the charged
conduct.
The district court reserved ruling on whether to admit the proffered 404(b)
evidence until after the government presented its case in chief. After hearing
government’s case, the court, over Acevedo’s objection, allowed the government
to introduce the 404(b) evidence. The court concluded that the prior uncharged
conduct was being offered to establish Acevedo’s identity and modus operandi and
that the jury could find by a preponderance of the evidence that Acevedo had
committed the conduct. The court also determined that the probative value of this
evidence was not substantially outweighed by undue prejudice to Acevedo and that
the acts were not so remote in time as to be no longer probative or relevant.
b. The Trial
The government presented the following evidence at trial. Ana Ribeiro, a
former manager at the Chevron station, testified that one day a customer
complained that someone had “skimmed” his credit card while he was at the gas
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station. Doc. 73 at 114.3 In response, Ribeiro went to check the gas pump; she
observed that the seal on the pump had been broken and when she opened the
pump, she saw a skimmer inside. Ribeiro then called the police. A crime scene
technician who responded to Ribeiro’s call testified that she lifted a latent
fingerprint from the skimmer, and a fingerprint examiner testified that the print
matched Acevedo’s fingerprint.
Roberto Rodriguez, a gas station repairperson, testified that about six weeks
after the first skimmer was discovered, another skimmer was found at the Chevron
station inside a gas pump. A second crime scene technician testified that she lifted
a fingerprint from the skimmer, and the fingerprint examiner testified that this print
matched Acevedo’s.
Craig Williams, a Special Agent with the United States Secret Service,
testified that a skimmer has no legitimate purpose. He explained that a skimmer,
when connected to a legitimate credit card reader, “skims” or reads the data (the
account holder’s name and account number) on credit cards passed through the
reader. The skimmer stores the data directly and can also transmit the data to
another device via Bluetooth. Williams testified that the two skimmers found at
the Chevron station stored more than 30 account numbers, including accounts
belonging to B.D. and J.D. B.D. and J.D. both testified that they had used their
3
“Doc.” numbers refer to the district court’s docket entries.
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credit cards to buy gas at the Chevron station during the relevant period, their cards
had not been lost or stolen, and they had never given Acevedo permission to
possess their credit card accounts.
The government also introduced the abovementioned 404(b) evidence
involving the two prior uncharged incidents. Williams testified that the two
skimmers found at the Chevron station and the skimmer found at the Valero station
all had Bluetooth capability. Williams extracted the data from all three skimmers
(two from the charged acts and one from the uncharged act) and listed all the
account numbers and names in a spreadsheet that was admitted into evidence. The
spreadsheet listed 93 accounts numbers and names. Regarding the skimmer found
at the Valero station, Williams testified that it contained over 15 account numbers,
including accounts belonging to F.P. and J.E. F.P. and J.E. both testified that they
had used their credit cards to buy gas at the Valero station during the relevant
period, their cards had not been lost or stolen, and they had never given Acevedo
permission to possess their credit card accounts.
The government then rested its case, and Acevedo moved for a judgment of
acquittal, which the district court denied. After the parties’ closing arguments, the
court instructed the members of the jury that although they could consider
evidence of past acts similar to those with which Acevedo was currently charged,
they could not convict him simply because they believed he may have committed
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the past uncharged acts. The jury returned a verdict convicting Acevedo on all
counts.
B. Presentence Investigation Report and Sentencing
Before sentencing, the probation office prepared a presentence investigation
report (“PSR”). The PSR determined that the three skimmers collectively
contained 93 pieces of personal identification information (credit card account
information). It noted that law enforcement spoke to 15 victims who confirmed
that Acevedo was not permitted to access their credit card information. And it
determined that the total loss amount was $46,500—$500 for each of the 93
unauthorized access devices. See U.S.S.G § 2B1.1 cmt. n.3(F)(i) (“In a case
involving any counterfeit access device or unauthorized access device, loss . . .
shall be not less than $500 per access device.”).
Based on Acevedo’s convictions, the PSR applied a base offense level of
six. See id. § 2B1.1(a)(2). The PSR recommended several enhancements to the
base offense level: a six-level enhancement because the loss amount was between
$40,000 and $95,000, id. § 2B1.1(b)(1)(D); a two-level enhancement because the
offense involved more than 10 victims, id. § 2B1.1(b)(2)(A); and a two-level
enhancement because the offense involved the possession or use of device-making
equipment, id. § 2B1.1(b)(11)(A)(i). After applying these enhancements,
Acevedo’s total offense level was 16. The PSR arrived at a criminal history score
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of zero, resulting in a criminal history category of I. Based on his total offense
level and criminal history category of I, Acevedo’s recommended range of
imprisonment under the Sentencing Guidelines was 21 to 27 months. The PSR
noted that Counts Five and Six carried a mandatory consecutive term of two years’
imprisonment, although the district court had discretion to run the mandatory terms
concurrently. See 18 U.S.C. § 1028A(a)(1), (b); U.S.S.G. § 2B1.6 cmt. n.1(B).
Acevedo objected to two of the enhancements. First, he objected to the loss
amount calculation, arguing that the government offered no evidence that he used
the credit cards and that credit card account numbers were not considered access
devices for the purpose of calculating a loss amount. Second, he objected to the
enhancement for the number of victims, contending that the government could not
establish that the offense involved 10 or more victims. The government argued in
response that the PSR correctly calculated the loss amount but agreed that it could
not establish that the offense involved more than 10 victims. The government thus
conceded that Acevedo’s total offense level should be lowered to 14.
At the sentencing hearing, the district court overruled Acevedo’s objection
to the loss amount, concluding that based on the testimony and evidence adduced
at trial the PSR’s calculation was appropriate. The court determined that
Acevedo’s total offense level was 14, his criminal history category was I, his
Sentencing Guidelines range was 15 to 21 months’ imprisonment, and he was
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subject to a mandatory consecutive sentence of 24 months as to Counts Five and
Six.
Acevedo, though his counsel, requested a downward variance, arguing that
the mandatory two-year sentence was appropriate given his lack of criminal history
and the fact that the offense resulted in minimal economic harm and reflected a
lack of sophistication. The government requested a 69-month sentence—21
months as to Counts One to Four and two years to run consecutively as to each of
Counts Five and Six. The government emphasized that Acevedo’s conduct was
sophisticated, the conduct took “great effort,” and Acevedo failed to accept
responsibility. Doc. 71 at 17.
Before imposing a sentence, the district court noted that it had considered
the facts and circumstances surrounding the offense, the parties’ statements, the 18
U.S.C. § 3553(a) factors, and Acevedo’s PSR. The court then sentenced Acevedo
to 45 months’ imprisonment: concurrent terms of 21 months as to Counts One to
Four and a consecutive term of 24 months as to Counts Five and Six.
This is Acevedo’s appeal.
II. STANDARDS OF REVIEW
We review a district court’s evidentiary rulings for abuse of discretion.
United States v. Rushin, 844 F.3d 933, 941 (11th Cir. 2016). “The district court
has broad discretion to determine the relevance and admissibility of any given
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piece of evidence.” United States v. Clay, 832 F.3d 1259, 1314 (11th Cir. 2016)
(internal quotation marks omitted).
We review de novo the denial of a motion for judgment of acquittal based on
insufficiency of the evidence, “viewing the evidence in the light most favorable to
the government and resolving all reasonable inferences and credibility
determinations in the government’s favor.” United States v. Green, 981 F.3d 945,
960 (11th Cir. 2020). The jury’s verdict must be affirmed unless no reasonable
trier of fact could have reached a conclusion of guilt beyond a reasonable doubt.
Id.With respect to sentencing issues, we review a district court’s legal
determinations de novo and its application of the guidelines to the facts for clear
error. United States v. Rodriguez-Lopez, 363 F.3d 1134, 1136–37 (11th Cir. 2004).
“A factual finding is clearly erroneous when, upon review of the evidence, we are
left with a definite and firm conviction a mistake has been made.” United States v.
Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015). A factual finding cannot be
clearly erroneous when the factfinder is choosing between two permissible views
of the evidence. United States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir.
2010).
III. DISCUSSION
On appeal, Acevedo raises several challenges to his convictions and
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sentence. First, we address the challenges related to Acevedo’s convictions;
second, we review the challenges pertaining to his sentence.
A. Acevedo’s Convictions
Acevedo argues that the district court (1) abused its discretion in admitting
evidence of similar uncharged incidents under Fed. R. Evid. 404(b) and (2) erred in
denying his motion for judgment of acquittal based on insufficiency of the
evidence. For the reasons set forth below, we disagree.
a. Admission of Uncharged Incidents
Acevedo argues that the district court abused its discretion in admitting,
under Rule 404(b), evidence of two uncharged prior incidents. He contends that
the government failed to establish he committed the uncharged acts, that the acts
were not relevant to establish his identity, and that the evidence was unduly
prejudicial. We disagree.
Under Rule 404(b), “[e]vidence of any other crime, wrong, or act is not
admissible to prove a person’s character in order to show that on a particular
occasion the person acted in accordance with the character.” Fed. R. Evid.
404(b)(1). Such evidence may be admissible for another purpose, “such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). For evidence of other
crimes or acts to be admissible under Rule 404(b), “(1) it must be relevant to an
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issue other than defendant’s character; (2) there must be sufficient proof to enable
a jury to find by a preponderance of the evidence that the defendant committed the
act(s) in question; and (3) the probative value of the evidence cannot be
substantially outweighed by undue prejudice, and the evidence must satisfy [Fed.
R. Evid.] 403.” United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).
The test for whether Rule 404(b) evidence should be admitted varies
depending on the purpose for which it is offered. United States v. Phaknikone,
605 F.3d 1099, 1108 (11th Cir. 2010). Evidence offered to prove identity must
satisfy a “particularly stringent analysis.” Id. (internal quotation marks omitted).
When extrinsic evidence is offered to prove identity, the “crucial consideration” is
the similarity between the charged crime and the prior act. United States v. Miller,
959 F.2d 1535, 1539 (11th Cir. 1992). “The physical similarity must be such that
it marks the offenses as the handiwork of the accused. In other words, the
evidence must demonstrate a modus operandi.” Id. (internal quotation marks
omitted). “The extrinsic act must be a signature crime, and the defendant must
have used a modus operandi that is uniquely his.” Phaknikone, 605 F.3d at 1108(internal quotation marks omitted). The government must, therefore, show more
than simply that the defendant has at other times committed the same
“commonplace variety of criminal act.” Id. (internal quotation marks omitted).
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Here, the district court did not abuse its discretion in admitting the 404(b)
evidence of the two prior incidents at the Valero and Chevron stations because the
evidence was relevant to prove Acevedo’s identity and modus operandi. The two
uncharged acts were strikingly similar to the incidents charged in the indictment.
They both occurred within a year of the first incident charged in the indictment and
within the same geographic area. What is more, the first uncharged incident was
essentially identical to the two charged acts—a credit card skimmer was found
inside a gas pump and Acevedo’s fingerprint was found on the pump’s broken seal.
As to the second uncharged incident, Acevedo was identified by a witness as he
was attempting to open a gas pump. The scheme marks Acevedo’s “handiwork” as
it does not appear to be so “commonplace” such that anyone could have committed
the uncharged acts. Id. (internal quotation marks omitted). Further, any potential
prejudice caused by admitting this evidence was mitigated by the district court’s
limiting instruction to the jury. Edouard, 485 F.3d at 1346.
b. Sufficiency of the Evidence
Acevedo contends that the district court erred by denying his motion for
judgment of acquittal because the government failed to prove his guilt beyond a
reasonable doubt. He argues that the government presented no evidence to
establish he placed or had knowledge that someone else placed the skimmers
inside the gas pumps and that the fingerprint evidence only proved that he touched
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the components of the skimmers at some point. We reject Acevedo’s arguments.
As noted, we review the sufficiency of the evidence de novo, considering the
evidence in the light most favorable to the government and drawing all reasonable
inferences in favor of the jury’s verdict. Green, 981 F.3d at 960. A jury is free to
choose among reasonable constructions of the evidence. United States v. Godwin,
765 F.3d 1306, 1320 (11th Cir. 2014). “It is not necessary that the evidence
exclude every reasonable hypothesis of innocence or be wholly inconsistent with
every conclusion except that of guilt.” United States v. Young, 906 F.2d 615, 618
(11th Cir. 1990). Thus, we may not overturn a jury’s verdict “if any reasonable
construction of the evidence would have allowed the jury to find the defendant
guilty beyond a reasonable doubt.” United States v. Capers, 708 F.3d 1286, 1297
(11th Cir. 2013) (internal quotation marks omitted). Further, the test for
sufficiency of evidence is “identical regardless of whether the evidence is direct or
circumstantial,” and no distinction is made between the weight given to either
direct or circumstantial evidence. United States v. Isnadin, 742 F.3d 1278, 1303
(11th Cir. 2014) (internal quotation marks omitted). However, where the
government relies on circumstantial evidence, reasonable inferences, and not mere
speculation, must support the jury’s verdict. Id. Applying this standard, we
conclude that there was sufficient evidence to support Acevedo’s convictions.
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To sustain a conviction for Counts One and Three, the government was
required to show that Acevedo knowingly and with intent to defraud possessed
fifteen or more counterfeit or unauthorized access devices. 18 U.S.C. § 1029(a)(3).
To convict Acevedo of Counts Two and Four, the government had to establish that
he knowingly possessed device-making equipment with the intent to defraud. Id.§ 1029(a)(4). And to sustain a conviction for Counts Five and Six, the government
was required to prove that Acevedo knowingly transferred, possessed, or used the
means of identification (including an access device) of another person, without
lawful authority, during and in relation to a felony enumerated in 18 U.S.C.
§ 1028A(c). United States v. Presendieu, 880 F.3d 1228, 1240 (11th Cir. 2018);
see also 18 U.S.C. § 1028A(a)(1). Section 1028A(c) includes fraud in connection
with access devices under §§ 1029(a)(3) and (a)(4) as enumerated felonies. 18
U.S.C. § 1028A(c)(4).
Guilty knowledge “may be inferred from circumstantial evidence[] and the
surrounding circumstances may supply inferences of knowledge which adequately
prove intent.” United States v. Perez, 698 F.2d 1168, 1170 (11th Cir. 1983)
(internal quotation marks omitted). An “intent to defraud” involves an 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) (internal quotation marks omitted). And
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possession may be actual or constructive. United States v. Delva, 922 F.3d 1228,
1248 (11th Cir. 2019). “A person constructively possesses an item when he has
knowledge of the thing possessed coupled with the ability to maintain control over
it,” or when he “exercises ownership, dominion, or control over the contraband.”
Id. (internal quotation marks omitted).
Here, there was sufficient evidence to convict Acevedo on all six counts.
The government presented evidence that Acevedo’s fingerprints were found on the
two skimmers discovered at the Chevron station; the jury could thus reasonably
conclude that he possessed the skimmers. See United States v. Tyler, 474 F.2d
1079, 1081 (5th Cir. 1973) (concluding that the jury was free to draw an inference
of actual possession from the presence of defendant’s fingerprint on a check).4
The jury heard evidence that a witness saw Acevedo attempting to open a gas
pump and then fleeing when told to stop. And based on Williams’s testimony that
skimmers have no lawful purpose and are used to capture credit card information
that passes through legitimate credit card readers, it was not unreasonable for the
jury to infer that Acevedo possessed the skimmers with the intent to defraud.
Further, because the skimmers could transmit the credit card information via
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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Bluetooth, the jury could also infer that Acevedo had access to the 93 account
numbers captured by the skimmers.
As to Acevedo’s conviction for aggravated identity theft, in addition to the
evidence listed above, the government established that the skimmers found at the
Chevron station stored a total of more than 30 account numbers, including
accounts belonging to B.D. and J.D. The jury heard B.D. and J.D. testify that they
had used their credit cards to buy gas at the Chevron station during the relevant
period, their cards had not been lost or stolen, and they had never given Acevedo
permission to possess their credit card accounts. It was therefore reasonable for
the jury to infer that Acevedo unlawfully possessed B.D.’s and J.D.’s means of
identification in relation to possessing unauthorized access devices and access
device-making equipment.
Viewing the above evidence in the light most favorable to the government,
we cannot say the district court erred in denying Acevedo’s motion for judgment of
acquittal. See Green, 981 F.3d at 960. We thus affirm Acevedo’s convictions on
all counts.
B. Acevedo’s Sentence
Acevedo next challenges his 45-month sentence as procedurally and
substantively unreasonable. Procedurally, he contends that the district court erred
in calculating the loss amount as between $40,000 and $95,000. Substantively, he
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argues that the district court imposed a sentence that was unreasonably severe. As
we explain below, we discern no error.
a. Loss Amount
Acevedo contends that the district court erred in determining the loss amount
of $46,500 because the government offered no evidence that he possessed the 93
credit card numbers. We reject Acevedo’s argument.
We review a district court’s determination of the loss amount under the
Sentencing Guidelines for clear error. United States v. Cavallo, 790 F.3d 1202,
1232 (11th Cir. 2015). Because the district court is in a unique position to assess
the evidence and estimate the loss based upon that evidence, its loss determination
is entitled to appropriate deference. United States v. Melgen, 967 F.3d 1250, 1265
(11th Cir. 2020); U.S.S.G § 2B1.1, cmt. n.3(C). The Guidelines define “loss” as
the greater of “actual loss”—the reasonably foreseeable pecuniary harm that
resulted from the offense—or “intended loss”—the pecuniary harm the defendant
purposefully sought to inflict. U.S.S.G § 2B1.1, cmt. n.3(A)(i), (ii). The
Guidelines do not require a precise determination of loss. Cavallo, 790 F.3d at
1232. Instead, the district court “need only make a reasonable estimate of the loss,
given the available information.” Id. (internal quotation marks omitted). The
Guidelines state that if the case involved any counterfeit or unauthorized “access
device,” the loss includes “any unauthorized charges made . . . and shall be not less
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than $500 per access device.” U.S.S.G § 2B1.1, cmt. n.3(F)(i). Further, all
relevant conduct, whether charged conduct or not, may be considered in
determining the loss amount. See United States v. Foley, 508 F.3d 627, 633 (11th
Cir. 2007).
The district court did not clearly err in calculating the loss amount at
$46,500. The court applied the lowest loss amount per access device permitted by
the Sentencing Guidelines, see U.S.S.G. § 2B1.1, cmt. n.3(F)(i), and Acevedo has
not shown the court clearly erred by using 93 access devices—the number of credit
card accounts obtained across the three skimmers—as the basis for that calculation.
Therefore, we conclude that the district court did not plainly err when it
calculated the loss amount and assessed Acevedo a six-level enhancement.
b. Substantive Reasonableness of the Sentence
Acevedo asserts that his sentence is substantively unreasonable because his
45-month sentence was more than double the high end of the Guidelines range, and
the district court offered only a “blanket statement” that it had considered the 18
U.S.C. § 3553(a) factors. We reject his argument.
We review for abuse of discretion whether a sentence is substantively
unreasonable by considering the totality of the circumstances, including “whether
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the statutory factors in § 3553(a) support the sentence in question.”5 United States
v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). We will not “second guess the
weight (or lack thereof) that [a district court] accorded to a given factor . . . as long
as the sentence ultimately imposed is reasonable in light of all the circumstances
presented.” United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (internal
quotation marks omitted). We may vacate a sentence only if we firmly believe 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.” United States v. Irey, 612 F.3d 1160, 1190 (11th
Cir. 2010) (internal quotation marks omitted). The party challenging the sentence
bears the burden of showing it is unreasonable. United States v. Tome, 611 F.3d
1371, 1378 (11th Cir. 2010). And a sentence that is within the Guidelines range
and well below the statutory maximum penalty is usually reasonable. See United
States v. Whyte, 928 F.3d 1317, 1338 (11th Cir. 2019) (“We ordinarily expect that
a sentence within the Guidelines is reasonable.”); Gonzalez, 550 F.3d at 1324
5
Under § 3553(a), the district court is required to impose a sentence “sufficient, but not
greater than necessary, to comply with the purposes” of the statute. These purposes include the
need to: reflect the seriousness of the offense; promote respect for the law; provide just
punishment; deter criminal conduct; protect the public from the defendant’s future criminal
conduct; and effectively provide the defendant with educational or vocational training, medical
care, or other correctional treatment. 18 U.S.C. § 3553(a)(2). 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 guidelines range, the pertinent policy statements of
the Sentencing Commission, the need to avoid unwarranted sentencing disparities, and the need
to provide restitution to victims. Id. § 3553(a)(1), (3)–(7).
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(holding that the sentence was reasonable in part because it was well below the
statutory maximum).
Here, the district court did not abuse its discretion in sentencing Acevedo to
45 months’ imprisonment. Before imposing the sentence, the court expressed that
it had considered the § 3553(a) factors, the PSR, the Guidelines range, and the
parties’ arguments. The district court’s statement is sufficient, as nothing “requires
the district court to state on the record that it has explicitly considered each of the
§ 3553(a) factors or to discuss each of the § 3553(a) factors.” United States v.
Docampo, 573 F.3d 1091, 1100 (11th Cir. 2009) (internal quotation marks
omitted). Acevedo argues that the sentence imposed was “problematic” given his
lack of criminal history, his acknowledgment of wrongdoing, and his familial
support. Appellant’s Br. at 44. But the weight the district court accords to “any
given § 3553(a) factor is a matter committed to the sound discretion of the district
court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (internal
quotation marks omitted).
Additionally, Acevedo argues that his 45-month sentence is outside the
Guidelines range, but he fails to acknowledge that the district court was required to
impose a mandatory two-year sentence for the aggravated identity theft counts to
run consecutively to his other sentence. See 18 U.S.C. § 1028A(a)(1), (b);
U.S.S.G. § 2B1.6 cmt. n.1. Acevedo’s remaining sentence, 21 months for Counts
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USCA11 Case: 19-12208 Date Filed: 05/27/2021 Page: 22 of 22
One to Four, was within the Guidelines range and well below the 120-month
statutory maximum for possession of unauthorized access devices and the 180-
month statutory maximum for possession of device-making equipment, see
18 U.S.C. § 1029(c)(1)(A)(i)–(ii), which supports a finding of reasonableness, see
Whyte, 928 F.3d at 1338; Gonzalez, 550 F.3d at 1324.
We cannot conclude from this record that the district court abused its
discretion in imposing a 45-month sentence.
IV. CONCLUSION
For the foregoing reasons, we affirm Acevedo’s convictions and sentence.
AFFIRMED.
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