United States v. Elton Lee Flenaugh ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11121
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-00116-ODE-GGB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELTON LEE FLENAUGH,
a.k.a. Ali Emir Waheed,
a.k.a. Joshua Ford,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(July 27, 2015)
Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Elton Lee Flenaugh appeals his sentence of 111 months of imprisonment
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following his pleas of guilty to possessing 15 or more counterfeit or unauthorized
access devices, 18 U.S.C. § 1029(a)(3), and aggravated identity theft, id. § 1028A.
Flenaugh challenges the four-level enhancement of his offense level for using the
means of identification of 50 or more victims to manufacture fraudulent credit
cards. United States Sentencing Guidelines Manual § 2B1.1(b)(2)(B) (Nov. 2013).
We affirm.
Flenaugh argues, for the first time, that the “district court should have
required proof of the number of victims by clear and convincing evidence rather
than by a preponderance of the evidence” because the enhancement significantly
increases his advisory guideline range, but we rejected a similar argument to apply
a more stringent burden of proof in United States v. Florence, 333 F.3d 1290, 1294
(11th Cir. 2003). In Florence, we reiterated that “our precedent states that ‘the
government’s burden of proof in establishing the applicability of a sentencing
enhancement is the preponderance of the evidence standard.’” Id. (quoting United
States v. Gonzalez, 71 F.3d 819, 836 (11th Cir. 1996) (brackets omitted)). Like the
defendant in Florence, Flenaugh “is unable to establish any error, let alone plain
error, by the district court in regard to the burden of proof required to establish the
facts supporting the application” of his sentence enhancement. Id.
Flenaugh contends that he was not subject to section 2B1.1(b)(2)(B) because
he did not use the means of identification of other persons unlawfully or without
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authority, but the district court did not clearly err by making a contrary finding.
Numerous fraudulent credit cards and driver’s licenses discovered in Flenaugh’s
belongings, and photographs and emails collected from personal electronic devices
and email accounts controlled by Flenaugh and his girlfriend, Deje Silas,
established that Flenaugh used stolen personal identity information to manufacture
fraudulent credit cards. When Flenaugh and Silas were arrested at the Atlanta
airport, they had in their baggage 94 fraudulent credit cards, a majority of which
had been encoded with real account information, and some of those cards had been
embossed with the names of Robert Lloyd, Burton Andrews, and Daniel Roberts,
which matched the names on three counterfeit driver’s licenses containing
Flenaugh’s photograph. Earlier, officers in California and Miami had discovered
fraudulent credit cards in Flenaugh’s control that had been embossed with Lloyd’s
name and the name of Matthew Carnegie, an identity that Flenaugh used to travel
to Portland, Oregon, where he made unauthorized purchases using a real credit
account number identical to one encoded on a fraudulent card that he possessed at
the Atlanta airport. The officers in California and at the Atlanta airport also seized
Flenaugh’s iPad, the couple’s iPad Mini, and Silas’s cellular telephones, and the
searches of those devices and the couples’ email accounts revealed that the couple
transacted with persons in Russia and Costa Rica; accessed information about
software used to create credit card templates; received software used to encode the
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magnetic strips of credit cards with account information; bought and sold blank
credit cards and retail gift cards; had an embossing machine; and had multiple
images and lists of detailed personal identification information for hundreds of
persons, some of which had been encoded on the fraudulent credit cards seized at
the Atlanta airport. At sentencing, a district court is free to make reasonable
inferences from the evidence. See United States v. Chavez, 584 F.3d 1354, 1367
(11th Cir. 2009). In the light of the uncontested facts in Flenaugh’s presentence
investigation report and the evidence introduced during his sentencing hearing, the
district court could reasonably infer that Flenaugh made the fraudulent credit cards
found in his possession when he had resources available to create the cards and
they were encoded with real account information and embossed with Silas’s name
and names matching those on Flenaugh’s counterfeit driver’s licenses.
Flenaugh argues, for the first time, that he did not manufacture every
fraudulent credit card found in his possession, but even accepting that as true, the
district court nonetheless could hold him responsible for all the fraudulent cards
that he possessed. His sentence enhancement is based on “the offense . . .
involved,” U.S.S.G. § 2B1.1(b)(2), and encompasses “the offense of conviction
and all relevant conduct under § 1B1.3,” U.S.S.G. § 1B1.1cmt. n.1(H), which
includes “acts . . . committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the defendant” and the reasonably foreseeable acts
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of his coconspirators, id. § 1B1.3(a)(1). Based on the evidence that Flenaugh
possessed functionable fraudulent credit cards, identification information for
hundreds of people, and access to equipment and associates involved in producing
fraudulent cards, the district court reasonably found that Flenaugh manufactured
the fraudulent cards or directed others to make the cards for him. Although many
of the fraudulent cards in Flenaugh’s possession were not encoded with personal
identification information discovered on his devices or in his email accounts, the
district court could reasonably infer that Flenaugh used, directed an associate to
use, or reasonably could have foreseen that an accomplice would use identification
information they had available to them to produce the fraudulent credit cards.
The district court did not clearly err in finding that Flenaugh had more than
50 victims. At sentencing, Flenaugh conceded that two victims had suffered actual
financial losses from unauthorized charges made on credit card accounts that were
fraudulently created in their names. And Flenaugh, by failing to object to the
statement in his presentence investigation report, admitted that the fraudulent credit
cards in his possession contained the personal identification information of at least
116 persons. See United States v. Bennett, 472 F.3d 825, 833–34 (11th Cir. 2006).
Flenaugh’s offense involved more than 50 victims.
We AFFIRM Flenaugh’s sentence.
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