USCA11 Case: 19-14647 Date Filed: 07/27/2022 Page: 1 of 18
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14647
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AARON EMMANUEL WALKER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-cr-20923-RKA-6
____________________
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2 Opinion of the Court 19-14647
Before JORDAN, JILL PRYOR, and MARCUS, Circuit Judges.
PER CURIAM:
Aaron Walker appeals his convictions and sentences for ac-
cess device fraud under
18 U.S.C. § 1029(a)(2) and aggravated iden-
tity theft under 18 U.S.C. § 1028A(a)(1). He raises three issues on
appeal, one having to do with his guilty plea and the other two
having to do with sentencing enhancements the district court im-
posed under the Sentencing Guidelines.
First, Walker asserts that the district court plainly erred in
failing to read aloud the elements of access device fraud and aggra-
vated identity theft at the change-of-plea hearing. The district
court’s failure to identify the elements, Walker contends, led him
to plead guilty to offenses he did not understand, in violation of
Federal Rule of Criminal Procedure 11 and his constitutional rights
under the Due Process Clause. He asks us to vacate his convictions
as a result.
Second, Walker challenges a factual finding the district court
made at sentencing. Walker asserts that the district court clearly
erred in finding that it was reasonably foreseeable to him that the
joint criminal activity in which he participated involved 10 or more
victims. The district court imposed a two-point offense-level en-
hancement under the Sentencing Guidelines based on its finding.
Because of the district court’s clear error, Walker argues, we must
remand to the district court for resentencing.
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19-14647 Opinion of the Court 3
Third, Walker argues that the district court erred in assign-
ing him two criminal history points under the Sentencing Guide-
lines for a suspended sentence he received in state court. As part of
that sentence, the state court gave Walker 140-days’ credit for time
served. In the instant case, the district court counted the 140-day
time-served credit as a previous sentence of imprisonment under
the guidelines, leading to the assignment of the two criminal his-
tory points. Walker argues that his time-served credit was not part
of any criminal sentence; rather, it was time he spent awaiting sen-
tencing. Given that distinction, he argues, the district court erred
in counting his 140-day credit as a previous sentence of imprison-
ment under the guidelines.
After careful review, and with the benefit of oral argument,
we conclude that the district court committed no reversible error
in the three issues Walker raises on appeal. The district court’s
judgment is therefore affirmed.
I. BACKGROUND 1
Walker and six other people conspired to use victims’ per-
sonal identifying information—social security numbers and the
like—to steal cell phones. The scheme worked like this: Walker or
one of his co-conspirators would use a victim’s social security num-
ber, address, or other information to open a line of credit with
1 The facts in this section are taken from the factual proffer Walker signed and
from the presentence investigation report.
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4 Opinion of the Court 19-14647
Sprint. 2 Once the victim’s credit was approved, Sprint would gen-
erate an “application number.” Doc. 144 at 1. 3 A co-conspirator
would then call Sprint’s sales support number and “purport[] to be
calling from a Sprint store.” Id. The co-conspirator would provide
the previously-obtained application number over the telephone
and ask Sprint to open the account in Walker’s name but with the
social security number and/or address of the victim. Walker
“would then go to a Sprint store, access the fraudulent account, and
charge thousands of dollars’ worth of cellular phones to the ac-
count and never pay for them.” Id. at 2. “Law enforcement ob-
tained transaction data from hundreds of fraudulent transactions
associated with this scheme.” Id. Walker personally obtained over
$28,000 dollars’ worth of cell phones using victims’ personal iden-
tifying information.
A federal grand jury indicted Walker on three counts: con-
spiracy to commit access device fraud in violation of
18 U.S.C.
§ 1029(b)(2), access device fraud in violation of
18 U.S.C.
§ 1029(a)(2), and aggravated identity theft in violation of 18 U.S.C.
§ 1028A(a)(1). The government offered Walker a plea agreement.
Under the plea agreement, Walker would plead guilty to the access
2 We note that “Sprint” is likely not the formal corporate name of the entity
the conspirators defrauded. But because the factual proffer simply uses
“Sprint” to refer to that entity, and the record reveals no conclusive identifying
information, we too will refer to the entity as “Sprint.”
3 “Doc.” numbers refer to the district court’s docket entries.
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19-14647 Opinion of the Court 5
device fraud and aggravated identity theft charges, and the govern-
ment would move to dismiss the conspiracy charge at sentencing.
At a change-of-plea hearing, the district court established
that Walker had some college education and was 14 credits shy of
meeting the requirements for graduation with an associate’s de-
gree. The court also made sure that Walker was not under the in-
fluence of any drugs or alcohol. After confirming that Walker was
of sound mind, the district court read aloud to him the access de-
vice fraud and aggravated identity theft charges. Walker testified
that he understood the charges and wished to plead guilty. The dis-
trict court also summarized the plea agreement and had the gov-
ernment summarize the factual basis for the charges by reading the
factual proffer aloud. Walker testified that he understood the plea
agreement and that the statements in the factual proffer were true.
The district court asked Walker about two concepts he did
not immediately understand. First, the district court asked Walker
if he knew that parole had been abolished in the federal system.
Walker said that he was unsure of what the district court meant,
and the district court recommended that he confer with his lawyer,
which Walker did. After speaking with his lawyer, Walker testified
that he understood. Second, the district court asked Walker if he
was aware that by pleading guilty to felony offenses, he would lose
some civil rights. Walker again conferred with his lawyer, and after
that conversation, he testified that he understood. After ensuring
that Walker was aware of all the consequences flowing from his
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6 Opinion of the Court 19-14647
guilty plea, the district court found Walker fully competent to en-
ter a knowing and voluntary plea, and it accepted his plea of guilty.
Following the change-of-plea hearing, the United States Pro-
bation Office prepared a presentence investigation report (“PSR”)
to aid the district court in sentencing Walker. The PSR contained
details about Walker’s offense and about his background. Para-
graph 8 in the PSR indicated as follows:
[F]rom February of 2017 through July of 2018, Acosta,
Arauz, Sampson, Benavides, Rojas, Walker[,] and
Mata agreed with each other . . . to use one or more
unauthorized access devices . . . to purchase merchan-
dise valued at over $1,000 from Sprint retail stores.
The merchandise totaled $717,186.15. The victims’
personal identifying information (PII) used in this
fraudulent scheme included the addresses and Social
Security Administration numbers of at least 18 indi-
viduals.
Doc. 192 at 6 ¶ 8 (emphasis added). Other paragraphs in the PSR
indicated that Walker had multiple co-conspirators, all of whom
were individually responsible for tens of thousands of dollars of sto-
len merchandise due to their individual actions. The PSR assigned
Walker a two-level increase to his base offense level because the
offense involved 10 or more victims. See U.S. Sent’g Guidelines
Manual § 2B1.1(b)(2)(A)(i) (U.S. Sent’g Comm’n 2018). Walker ob-
jected to the two-point enhancement.
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19-14647 Opinion of the Court 7
The PSR also contained information about Walker’s crimi-
nal history. The PSR noted that Walker was arrested in Florida for
aggravated stalking and that the state court sentenced him to com-
munity control and probation. Walker violated the conditions of
his community-control sentence twice, and the state court modi-
fied his sentence after each violation. Following the second viola-
tion, the state court modified Walker’s sentence to a suspended
sentence of 3.5 years’ imprisonment with time-served credit for the
140 days Walker had already spent in jail. 4 The PSR assigned
Walker two criminal history points based on the 140 days, conclud-
ing that those days in jail constituted a “prior sentence of imprison-
ment of at least sixty days” under the Sentencing Guidelines. Id.
§ 4A1.1(b). Walker objected to this two-point enhancement as
well.
At sentencing, the district court overruled Walker’s objec-
tions. For the offense-level enhancement, the district court noted
that “Walker himself engaged in defrauding seven victims” and
that it was reasonably foreseeable to him that one of his co-con-
spirators defrauded at least three more. Doc. 259 at 45–46. The dis-
trict court specifically referenced Walker’s concession that he
4 A suspended sentence is a sentence of imprisonment the defendant may
never have to serve if he does not violate the condition of the suspended sen-
tence that triggers the term of imprisonment. Although the record is not en-
tirely clear, it appears that the remainder of Walker’s suspended sentence of
3.5 years’ imprisonment would have been triggered if he had violated the con-
ditions of his community control again.
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8 Opinion of the Court 19-14647
conspired with Anthony Acosta, the leader of the scheme, to de-
fraud victims. The court noted that it was reasonably foreseeable
to Walker that Acosta, the leader of the conspiracy, would have
defrauded at least three additional individuals.
For the criminal-history enhancement, the district court ob-
served that the 140 days Walker spent in jail “was computed and
taken into account” when the state court imposed the 3.5-year sus-
pended sentence. Doc. 259 at 60–61. That is, if Walker ever trig-
gered the suspended sentence, the 3.5-years’ imprisonment would
be reduced by 140 days. And so, the district court reasoned, the 140
days were part of that suspended sentence and thus became a prior
sentence of imprisonment for guidelines purposes.
The district court calculated that Walker had a criminal his-
tory category of III and a total offense level of 10. Walker’s result-
ing sentencing range was 10–16 months’ imprisonment for the ac-
cess device fraud conviction under
18 U.S.C. § 1029(a)(2). For the
aggravated identity theft conviction, a two-year consecutive sen-
tence was required by statute. See 18 U.S.C. § 1028A(a)(1). The dis-
trict court imposed 10 months’ imprisonment for the access device
fraud charge and 24 months’ imprisonment for the aggravated
identity theft charge, to be served consecutively. Taken together,
Walker was committed to the custody of the Federal Bureau of
Prisons for a total of 34 months, to be followed by a three-year term
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19-14647 Opinion of the Court 9
of supervised release. Walker is now serving the supervised release
portion of his sentence. 5
This is Walker’s appeal.
II. LEGAL STANDARDS
When a defendant raises an issue for the first time on appeal,
we review the issue for plain error. Under plain-error review, the
appellant bears the burden of establishing that (1) an error has oc-
curred; (2) the error was plain; (3) the error affected the appellant’s
substantial rights; and (4) the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings. United States
v. Moore,
22 F.4th 1258, 1264–65 (11th Cir. 2022). The error “must
be so clearly established and obvious that it should not have been
permitted by the trial court even absent the defendant’s timely as-
sistance in detecting it.”
Id. at 1266 (internal quotation marks omit-
ted).
5 The fact that Walker is currently on supervised release does not moot his
challenge to the district court’s Sentencing Guidelines calculations. See United
States v. Huang,
977 F.2d 540, 542 n.1 (11th Cir. 1992) (concluding that a sen-
tencing appeal was not mooted when a defendant was on supervised release
because “a lesser sentence on remand” would push back “the beginning date
for the term of supervised release”); see also Dawson v. Scott,
50 F.3d 884, 886
n.2 (11th Cir. 1995) (“Dawson is still serving his term of supervised release,
which is part of his sentence and involves some restrictions upon his liberty.
Because success for Dawson could alter the supervised release portion of his
sentence, his appeal is not moot.”).
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10 Opinion of the Court 19-14647
On review of the district court’s application of the Sentenc-
ing Guidelines, we review factual findings for clear error and the
court’s application of the guidelines themselves de novo. United
States v. Thomas,
32 F.4th 1073, 1077 (11th Cir. 2022).
III. DISCUSSION
Our discussion proceeds in three parts. First, we assess
whether the district court plainly erred in failing to read the ele-
ments of access device fraud and aggravated identity theft to
Walker during the change-of-plea hearing. Second, we determine
whether the district court clearly erred in finding that it was rea-
sonably foreseeable to Walker that the criminal scheme in which
he participated involved 10 or more victims. Third, we ask whether
the district court erred in assigning Walker two criminal history
points for his suspended sentence.
A. The District Court Did Not Plainly Err by Failing to
Read the Elements of the Offenses Aloud to Walker.
Walker first argues that his convictions must be vacated be-
cause the district court failed to read the elements of access device
fraud and aggravated identity theft aloud at the change-of-plea
hearing. Because of the district court’s failure, Walker argues, he
did not understand the nature of the offenses to which he was
pleading guilty. Walker concedes that he did not raise this argu-
ment to the district court. We thus review the issue for plain error.
“Because a guilty plea involves the relinquishment of several
constitutional rights and privileges, it must be entered voluntarily
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19-14647 Opinion of the Court 11
and knowingly.” United States v. Presendieu,
880 F.3d 1228, 1238
(11th Cir. 2018). To ensure the defendant enters a plea voluntarily
and knowingly, Federal Rule of Criminal Procedure 11 requires the
district court to inform the defendant of “the nature of each charge
to which [he] is pleading.” Fed. R. Crim. P. 11(b)(1)(G). 6 Although
the district court must ensure that the defendant is informed of the
nature of the charges, “Rule 11 does not specify that a district court
must list the elements of an offense.” Presendieu, 880 F.3d at 1238.
Rather, we must undertake a case-by-case inquiry, looking at the
totality of the circumstances and what they show about whether
the defendant was adequately informed. Id.
We are confident here that the district court conducted a
sufficiently robust colloquy to ensure that Walker understood the
nature of the offenses to which he pled guilty. “In simple
cases, . . . the district court may only need to read the indictment
and afford the defendant an opportunity to ask questions” to en-
sure that the defendant understands the offenses charged. Id. at
1239. Here, the district court read the indictment aloud to Walker
and afforded him an opportunity to ask questions. It also asked
whether Walker understood that the government would have to
prove “each and every element of each and every count contained
6 Although Walker invokes the Constitution’s Due Process Clause in addition
to Federal Rule of Criminal Procedure 11, we analyze his challenge only under
Rule 11. This is because Rule 11 sets out “the constitutional minimum require-
ments for a knowing and voluntary plea.” Stano v. Dugger,
921 F.2d 1125,
1141 (11th Cir. 1991).
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12 Opinion of the Court 19-14647
in the indictment,” although it did not explicitly explain the ele-
ments to him. Doc. 258 at 16. We have no reason to conclude, un-
der plain error review, that this case was sufficiently complex to
require anything more. To the contrary, we have previously ob-
served that aggravated identity theft—one of the crimes to which
Walker pled guilty—is not a crime of extreme complexity requiring
district courts to read its elements aloud at plea hearings. See Pres-
endieu, 880 F.3d at 1240.
Other circumstances lead us to the conclusion that there was
no error, much less plain error here. We have said that “a factual
proffer may set forth in such detail the facts of the crime that it
effectively incorporates the substance of the elements of the of-
fense.” Id. at 1239. The factual proffer—which Walker signed and
affirmed—indicated that Walker used victims’ personal identifying
information, without authorization, to steal thousands of dollars’
worth of cell phones, all in a manner affecting interstate commerce.
Those details, and others in the factual proffer, largely map onto
the elements of both access device fraud and aggravated identity
theft. 7
7 To convict a defendant of aggravated identity theft, the government must
prove that the defendant: (1) knowingly possessed, transferred, or used; (2)
another person’s means of identification; (3) without lawful authority; (4) dur-
ing and in relation to a felony enumerated in 18 U.S.C. § 1028A(c). See 18
U.S.C. § 1028A(a)(1).
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19-14647 Opinion of the Court 13
We may also consider Walker’s “intelligence and sophistica-
tion” in asking whether he understood the offenses to which he
was pleading guilty. Id. at 1238. Walker testified that he was 14
credits shy of graduating with an associate’s degree from college.
In addition to his partial college education, Walker demonstrated a
willingness to confer with his lawyer about concepts discussed at
the hearing that he did not immediately understand. At no point
during the colloquy did Walker indicate he had trouble under-
standing the offenses with which he was charged. And although the
district court did not identify for Walker the elements of the of-
fenses, it asked him whether he was aware that the government
would have to prove the elements of the crimes charged, and
Walker said he understood that. We find no reversible error in the
district court’s colloquy. Walker’s challenge on this point therefore
fails.
B. The District Court Did Not Clearly Err in Finding It
Reasonably Foreseeable to Walker that the Offense
Involved 10 or More Victims.
Walker next argues that the district court clearly erred in
holding him accountable for 10 or more victims. The Sentencing
Guidelines provide for a two-point offense level enhancement “[i]f
For the crime of access device fraud, the government must prove that
the defendant (1) knowingly used or trafficked in one or more unauthorized
access devices; (2) with intent to defraud; (3) to obtain anything having an ag-
gregate value of $1,000 or more during a one-year period; and that (4) such
use affected interstate or foreign commerce. See
18 U.S.C. § 1029(a)(2).
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14 Opinion of the Court 19-14647
the offense . . . involved 10 or more victims.” See U.S. Sent’g Guide-
lines Manual § 2B1.1(b)(2)(A)(i) (U.S. Sent’g Comm’n 2018). For
cases like this one involving jointly undertaken criminal activity,
the guidelines direct us to look at not only a defendant’s conduct in
isolation, but also the conduct of others that was “(i) within the
scope of the jointly undertaken criminal activity; (ii) in furtherance
of that criminal activity; and (iii) reasonably foreseeable in connec-
tion with that criminal activity.” See id. § 1B1.3. Walker conceded
that he personally harmed seven victims. The district court found
that it was reasonably foreseeable to Walker that at least three
more victims were harmed within the scope and in furtherance of
the jointly undertaken criminal activity. We conclude that the dis-
trict court did not clearly err in making this finding.
Walker never objected to paragraph 8 in the PSR, which in-
dicated he agreed that the offense involved the personal identifying
information of “at least 18 individuals.” Doc. 192 at 6 ¶ 8. At oral
argument, Walker asserted that even though he never objected to
paragraph 8, while enumerating and objecting to other paragraphs
in the PSR, he clearly evinced an intention to raise an overarching
objection that he could not be held accountable for 10 or more vic-
tims. But Walker cited no authority that would relieve him from
having to accurately identify the specific portions of the PSR to
which he objected.
Even if we were to excuse Walker’s failure to object, how-
ever, the district court’s finding would still survive clear error re-
view. Walker conceded before the district court and on appeal that
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19-14647 Opinion of the Court 15
he personally defrauded seven victims. He stipulated to working as
“one of the participants in the scheme” and that law enforcement
obtained data showing “hundreds of fraudulent transactions” asso-
ciated with the scheme. Doc. 144 at 2. Walker agreed that he was
personally responsible for more than $28,000 in stolen cell phones,
and he admitted to working with Acosta, the leader of the scheme,
who was engaged in similar activity. Based on this record, the dis-
trict court committed no clear error in finding that it was reasona-
bly foreseeable to Walker that the joint criminal activity in which
he participated involved at least 10 victims.
C. The District Court Did Not Err in Assigning Walker
Two Criminal History Points for His Suspended Sen-
tence.
Walker next argues that the district court erred in assigning
him two criminal history points for the 140-day time-served credit
he received for his suspended sentence. The Sentencing Guidelines
require the addition of two criminal history points “for each prior
sentence of imprisonment of at least sixty days.” See U.S. Sent’g
Guidelines Manual § 4A.1.1(b) (U.S. Sent’g Comm’n 2018). And
“[i]f part of a sentence of imprisonment was suspended, ‘sentence
of imprisonment’ refers only to the portion that was not sus-
pended.” Id. § 4A1.2(b)(2). The answer to the question before us
turns on whether the district court erred in treating the 140-day
time-served credit as a portion of Walker’s suspended sentence that
was not suspended.
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16 Opinion of the Court 19-14647
We find no error in the district court’s application of the Sen-
tencing Guidelines on this question. The 140-day time-served
credit does not exist in a vacuum; the state court credited those 140
days towards a 3.5-year term of imprisonment such that, had
Walker ever triggered the suspended sentence of 3.5 years, his sen-
tence would have been reduced by 140 days. We think it straight-
forward to say, then, that the 140 days Walker spent in jail were a
“portion [of the suspended sentence] that was not suspended.” Id.
Our reasoning is in line with the Fifth Circuit’s in United
States v. Fernandez,
743 F.3d 453 (5th Cir. 2014). There, the Fifth
Circuit considered a similar situation, where a district court as-
signed the defendant, Fernandez, two criminal history points based
on a suspended state-court sentence with a 254-day credit for time
served. The Fernandez court reasoned that because the state court
gave Fernandez credit for time served, it “explicitly took the period
of pre-sentence confinement into account” in imposing the sus-
pended sentence.
Id. at 457 (internal quotation marks omitted).
And because of that, the time-served credit had to be thought of as
part of the suspended sentence itself for Sentencing Guidelines pur-
poses. See
id. at 456–57. We think the Fernandez court reached the
correct result, and we find no error in the district court’s assign-
ment of two criminal history points for the same reasons.
Walker makes two arguments in response. First, he invokes
the commentary to the Sentencing Guidelines to say that “criminal
history points are based on the sentence pronounced, not the
length of time actually served.” See U.S. Sent’g Guidelines Manual
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19-14647 Opinion of the Court 17
§ 4A1.2 cmt. 2 (U.S. Sent’g Comm’n 2018). Walker maintains that
the 140 days he spent in jail were not part of a pronounced sen-
tence, but rather, were days he spent awaiting sentencing. He adds
that the decision to award time-served credit was not left to the
discretion of the state-court judge but was mandated by Florida
statute. In sum, Walker argues that because there was no punitive
purpose to the 140 days he spent in jail when he served them, those
days cannot be thought of as part of a criminal sentence.
We do not find Walker’s first argument persuasive. Alt-
hough criminal history points are, in the ordinary course, based on
“the sentence pronounced” rather than time served, id., the text of
the guideline is clear that suspended sentences are an exception to
this rule. For suspended sentences, we are to look to the time
served, rather than the sentence pronounced. Id. § 4A1.2(b)(2); see
also United States v. Dixon,
230 F.3d 109, 112 (4th Cir. 2000) (ob-
serving that, under the Sentencing Guidelines, “suspended sen-
tences are counted by the time not suspended, rather than the time
imposed”).
Second, Walker argues that we should think of his sus-
pended sentence not as a suspended sentence of imprisonment, but
instead as a sentence of probation. He cites a provision in the Sen-
tencing Guidelines commentary having to do with probation: “A
sentence of probation is to [result in one criminal history point] un-
less a condition of probation requiring imprisonment of at least
sixty days was imposed.” U.S. Sent’g Guidelines Manual § 4A1.2
cmt. 2 (U.S. Sent’g Comm’n 2018). Walker offers no explanation at
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18 Opinion of the Court 19-14647
all for why a suspended sentence of imprisonment is best thought
of as a sentence of probation. Without any citations to authority or
reasons from Walker on this point, we will not invent arguments
on his behalf. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d
678, 681 (11th Cir. 2014) (“We have long held that an appellant
abandons a claim when he either makes only passing references to
it or raises it in a perfunctory manner without supporting argu-
ments and authority.”).
We therefore conclude that the district court did not err in
assigning Walker two criminal history points for his suspended sen-
tence. 8
IV. CONCLUSION
For the foregoing reasons, Walker’s convictions and sen-
tences are AFFIRMED.
8 Walker asserts that the rule of lenity ought to apply in his favor. The rule of
lenity is a rule of statutory interpretation, and it applies when the statute at
issue is ambiguous. See Romero v. Sec’y, U.S. Dep’t of Homeland Sec.,
20
F.4th 1374, 1383 (11th Cir. 2021). Because we find the Sentencing Guidelines
unambiguous on this question, we do not reach the rule of lenity.
