United States v. Syndy Anaia Felix

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10991
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SYNDY ANAIA FELIX,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20085-CMA-1
____________________
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2 Opinion of the Court 22-10991
Before WILLIAM PRYOR, Chief Judge, and JORDAN and BRANCH, Cir-
cuit Judges.
PER CURIAM:
Syndy Felix appeals her convictions and sentences for one
count of the use of unauthorized access devices, 18 U.S.C. §§ 2,
1029(a)(2), and three counts of aggravated identity theft, id. §§ 2,
1028A(a)(1). Felix argues that the district court erred by denying
her motions for a mistrial and for a new trial because the prosecu-
tor’s misstatement during rebuttal closing argument was a deliber-
ate comment on her constitutional right to silence. Felix also ar-
gues that her sentence of 64 months of imprisonment is procedur-
ally and substantively unreasonable. We affirm.
Before trial, Felix stipulated to the fact that she owned a
white Chrysler 200 and that she was the individual depicted in sev-
eral photographs in the government’s exhibits. During her opening
statement, Felix stated that she had used debit cards that did not
belong to her but disputed that she had the knowledge or intent to
defraud.
At trial, the government presented testimony from Roger
Kennedy, a senior field investigator at Regions Bank. Kennedy re-
ceived a daily report from the debit-card-claims department and
noticed that Regions debit cards belonging to individuals outside
of southern Florida were being used in Miami-Dade and Broward
Counties. Kennedy reviewed transaction records and surveillance
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22-10991 Opinion of the Court 3
video for automated teller machines, which depicted a woman
driving a white Chrysler 200 with an unobscured license plate that
was registered to Felix. Kennedy identified Felix as the individual
who had been using the stolen debit account numbers.
Kennedy estimated that, between February 2 and March 22,
2017, Felix was responsible for approximately 90 successful or un-
successful debit card transactions at 12 machines involving 38 bank
accounts. Kennedy determined that Felix was able to withdraw
over $17,000 and was unsuccessful in her attempts to withdraw
slightly less than $17,000. Kennedy noticed that Felix sometimes
stood at teller machines for up to 15 minutes making multiple
transactions with more than one debit card and personal identifica-
tion number, and she did not attempt to hide her face or her license
plate. Kennedy also noticed that Felix used the same debit account
number multiple times in a single night by withdrawing $800,
which was the daily withdrawal limit set by Regions Bank, before
midnight and another $800 a few hours after midnight. Kennedy
believed that another individual was involved because some pho-
tographs depicted a passenger in Felix’s vehicle, but he could not
determine the passenger’s identity.
Felix testified in her defense and denied being a “thief.” Felix
stated that, from the end of January to the end of March 2017, she
had a boyfriend named “Matthew,” whom she called “Cashew.”
They met at a New Year’s Eve party, and he took her on dates to
nice restaurants and nightclubs and paid for everything, including
bottles of liquor. Before they would go out, “Matthew” would ask
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4 Opinion of the Court 22-10991
Felix to drive to a teller machine to obtain cash. He never drove
because his license was suspended, but he sometimes accompanied
her and stayed in the passenger’s seat while Felix made the with-
drawal. Felix explained that she was on the phone with “Matthew”
during many of the transactions because she could not remember
his personal identification number. Whenever the card he gave her
did not work, “Matthew” would tell her that he gave her the wrong
card or that there was not enough money in the account. All of the
cards looked like Regions Bank cards, and she recalled glancing at
one of the cards and seeing “Matthew” printed on it. Felix did not
think that it was unusual for a person to have more than one card
with a single bank. Felix did not cover her face or license plate be-
cause she was unaware that she was committing a crime until she
was indicted three years later. Felix stated that her mistakes were
“dating the wrong guy, trusting the wrong person.”
On cross-examination, Felix stated that Matthew never told
her his last name. Felix knew that Matthew lived in a house in
Miramar, but she did not know if he lived alone. Felix believed that
he was 25 years old and that he owned businesses, but the only
business she knew about was a dirt bike repair business. Felix ex-
plained that he sometimes asked her to make multiple withdrawals
in a single night because he had bills to pay in the morning. Felix
stated that she broke up with Matthew because they grew apart.
During closing argument, defense counsel told the jury,
“Don’t just listen to what [] Felix said on the stand, but look at the
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22-10991 Opinion of the Court 5
way she said it. . . . She answered every question and she answered
honestly and she answered respectfully.”
In rebuttal, the prosecutor stated that Felix “had deliberately
closed her eyes to something that was very, very much apparent to
her.” The prosecutor also addressed Felix’s testimony about her
boyfriend:
There is a man we hear about for the first time today
named Matthew. Matthew doesn’t have a last name,
goes by Cashew, and he lives in a cul-de-sac in a house
in Miramar. That’s all we know about Matthew; quite
literally, specifically that’s all we know.
After Felix reserved a motion, the district court instructed
the jury that “[a]nything the lawyers say is not evidence and is not
binding on the [jury].” The district court also instructed the jury on
deliberate avoidance of knowledge.
After the jury left to deliberate, Felix moved for a mistrial
based on the prosecutor’s statement that this was the first time that
the government learned about “Matthew.” Felix argued that the
statement was an improper comment on her right to remain silent.
Felix also submitted a statement from one of the government’s po-
tential witnesses that stated that Felix’s new boyfriend “went by
Peanut or Nut.” Felix argued that, based on the statement, it was
“obvious this person existed” and the prosecutor’s misstatement
“cast the entire [d]efense in doubt based upon a wrongful fact.” The
government responded that it was not clear that “Cashew” and
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6 Opinion of the Court 22-10991
“Peanut,” or “Nut,” were the same person and argued that the re-
buttal statement responded to the credibility of Felix’s characteri-
zation of her boyfriend and did not dispute his existence.
The district court denied the motion for a mistrial but
brought the jury back in and instructed, “[T]he [g]overnment made
the statement, This is the first time we hear of a Matthew or a
Cashew. You are to disregard that statement in its entirety. That
statement is stricken.” The jury convicted Felix on all counts.
Felix moved for a new trial. Felix argued, in relevant part,
that the prosecutor’s rebuttal statement was plainly erroneous and
a violation of Doyle v. Ohio, 426 U.S. 610 (1976). Felix argued that
the prosecutor had used her post-arrest silence to impeach her ex-
culpatory testimony about her boyfriend, despite having learned
from a potential witness that Felix had dated someone called “Pea-
nut” or “Nut” who flaunted money, jewelry, and nice cars.
The district court denied Felix’s motion for a new trial. The
district court ruled that no Doyle violation occurred because, at
least as of two weeks before trial, the police had never interviewed
Felix, and there was no occasion where Felix would have received
a warning under Miranda v. Arizona, 384 U.S. 436 (1966). The dis-
trict court also ruled that any Doyle violation would have been
harmless in the light of the overwhelming evidence of Felix’s guilt
and the curative instruction to the jury.
Felix’s presentence investigation report provided a criminal
history category of I, a base offense level of six, United States
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22-10991 Opinion of the Court 7
Sentencing Guidelines Manual § 2B1.1(a)(2), a four-level enhance-
ment because the loss was more than $15,000 but less than $40,000,
id. § 2B1.1(b)(1)(C), and a two-level enhancement because the of-
fense involved the production of counterfeit access devices, id.
§ 2B1.1(b)(11)(B)(i). The aggravated identity theft convictions car-
ried a mandatory consecutive term of two years of imprisonment,
which “may, in the discretion of the court, run concurrently, in
whole or in part, only with another term of imprisonment” im-
posed on additional aggravated identity theft convictions. 18 U.S.C.
§ 1028A(a)(1), (b)(2), (b)(4); U.S.S.G. § 5G1.2(a), cmt. n.2(B).
The government objected that the report failed to include
an enhancement for obstruction of justice, U.S.S.G. § 3C1.1. The
government argued that Felix could have testified without resort-
ing to misrepresentations of fact, but instead, she testified that she
carried out 90 transactions at over 10 locations with over 30 differ-
ent debit cards, each with a different personal identification num-
ber, all while believing that each of the cards and the cash belonged
to her boyfriend.
The district court sustained the objection and found that Fe-
lix’s “testimony was frankly incredible” and “remarkable.” With
the obstruction enhancement, Felix’s guideline range sentence be-
came 15 to 21 months of imprisonment and a consecutive 24
months of imprisonment on the three counts of aggravated iden-
tity theft, to run consecutively or concurrently.
The district court heard Felix’s allocution, in which she
stated that she was naïve but had been reformed. In addressing the
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8 Opinion of the Court 22-10991
sentencing factors, 18 U.S.C. § 3553(a), the district court stated that
“[t]here was no reason for [Felix] to get involved in this except
greed and the lack of respect for others” and that the surveillance
videos of Felix showed that she was “doing it without any remorse,
without any concern for what impact this would have on others.”
The district court stated that the nature of the offense was serious
because “identity theft is a plague” and stated that the sentence
should promote respect for the law and deter Felix and others.
The district court sentenced Felix to 16 months of imprison-
ment followed by two consecutive terms of 24 months of impris-
onment and a concurrent term of 24 months of imprisonment, for
a total sentence of 64 months of imprisonment. The district court
also ordered Felix to pay $17,160 in restitution and a $7,500 fine.
Felix challenges the denial of her motions for a mistrial and
a new trial, which we review for an abuse of discretion. United
States v. Reeves, 742 F.3d 487, 504 (11th Cir. 2014).
Felix argues that the prosecutor made a deliberate misstate-
ment of fact in her rebuttal closing argument, but we disagree.
Prosecutorial misconduct during closing argument warrants a new
trial only when the remarks were improper and prejudiced the de-
fendant’s substantial rights. Id. at 505. Viewing the comments in
the context of the trial as a whole, we consider “(1) whether the
challenged comments had a tendency to mislead the jury or preju-
dice the defendant; (2) whether the comments were isolated or ex-
tensive; (3) whether the comments were deliberately or acci-
dentally placed before the jury; and (4) the strength of the
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22-10991 Opinion of the Court 9
competent proof establishing the guilt of the defendant.” Id. A
prosecutor may draw conclusions from the evidence and, “as an
advocate, is entitled to make a fair response to the arguments of
defense counsel.” Id. If the district court issued a curative instruc-
tion, we will reverse only if the evidence is so highly prejudicial as
to be incurable. See id. at 506.
The prosecutor’s statement did not affect Felix’s substantial
rights because there is no reasonable probability that, but for the
statement, the outcome would have been different. Felix presented
no evidence that the government was aware of a “Matthew” before
she testified. And even if the government suspected during Felix’s
testimony that “Cashew” could be the same person who its poten-
tial witness called “Peanut” or “Nut,” that suspicion alone did not
render the prosecutor’s statement a deliberate falsehood. Further,
viewed in the context of the entire trial, this isolated statement did
not undermine Felix’s testimony that another person was involved.
Indeed, Kennedy testified that, based on his investigation, he be-
lieved that another individual was involved in the scheme. And
many of the government’s exhibits depicted either a passenger in
Felix’s vehicle or Felix with her cell phone to her ear when she was
making the withdrawals.
The evidence of Felix’s guilt was overwhelming too. In less
than two months, Felix made or attempted to make over 90 cash
withdrawals totaling $33,960 using 38 stolen debit account num-
bers, each of which required a different personal identification
number. Surveillance video captured Felix and her vehicle at the
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10 Opinion of the Court 22-10991
teller machines, and her face was visible in over two dozen of the
government’s photographic exhibits. By stipulating to the conduct,
Felix placed her intent and knowledge, and the credibility of her
testimony, squarely at issue. But her story that she did not know
any reasonable information about the boyfriend for whom she was
making a significant number of cash withdrawals in a short period
was not believable. And we also “presume that the jury followed
the district court’s curative instruction[].” See United States v. Va-
lois, 915 F.3d 717, 726 (11th Cir. 2019); Reeves, 742 F.3d at 506.
Felix erroneously argues that the prosecutor’s rebuttal state-
ment was a comment on Felix’s right to silence. Doyle held that
the use of a defendant’s post-arrest, post-Miranda silence for im-
peachment purposes violates due process. 426 U.S. at 619. But a
defendant’s post-arrest, pre-Miranda silence is admissible for im-
peachment purposes because such silence may be probative “and
does not rest on any implied assurance by law enforcement author-
ities that it will carry no penalty.” Brecht v. Abrahamson, 507 U.S.
619, 628 (1993). And we “permit the prosecution to use a defend-
ant’s post-arrest, pre-Miranda silence as direct evidence that may
tend to prove the guilt of the defendant.” United States v. Wilch-
combe, 838 F.3d 1179, 1190 (11th Cir. 2016). Because Felix does not
dispute that she never received a Miranda warning, her argument
is foreclosed by precedent. Brecht, 507 U.S. at 628; Wilchcombe,
838 F.3d at 1190.
Felix argues that the district court procedurally erred by fail-
ing to make an independent factual finding to support the
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22-10991 Opinion of the Court 11
enhancement for obstruction of justice, U.S.S.G. § 3C1.1. We disa-
gree. We review factual findings regarding an obstruction of justice
enhancement for clear error and the application of law to those
facts de novo. United States v. Bradberry, 466 F.3d 1249, 1253 (11th
Cir. 2006). The Guidelines provide a two-level enhancement for a
“defendant [who] willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to
the investigation, prosecution, or sentencing of the instant of-
fense,” U.S.S.G. § 3C1.1, which includes attempting to evade con-
viction by perjury, see id. § 3C1.1 cmt. n.4(b). “[I]t is preferable for
a district court to address each element of the alleged perjury in a
separate and clear finding.” United States v. Dunnigan, 507 U.S. 87,
95 (1993). But “a remand is not necessary when the record clearly
reflects the basis for [an] enhancement and supports it.” United
States v. Feldman, 931 F.3d 1245, 1263 (11th Cir. 2019) (alteration
in original) (internal quotation marks omitted).
The determination by the district court that Felix gave false
testimony was supported by the record and was not clearly errone-
ous. The district court ruled that Felix’s testimony that she had no
knowledge of the criminal nature of her conduct was “frankly in-
credible” and “remarkable.” In denying Felix’s motion for a new
trial, the district court explained that the government presented
overwhelming evidence “showing [Felix’s] knowledge—or delib-
erate avoidance of knowledge—that she was making unauthorized
cash withdrawals” and that Felix attempted to shift the blame but
“was discredited when she could not answer the most basic
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questions about her purported ex-boyfriend.” Although Felix com-
plains that these findings were not specific enough, she failed to
request more particular findings, so she cannot complain that the
district court erred by failing to make them. See United States v.
Hubert, 138 F.3d 912, 915 (11th Cir. 1998).
Felix challenges the substantive reasonableness of her sen-
tence, which we review for abuse of discretion. Gall v. United
States, 552 U.S. 38, 51 (2007). The district court “imposes a substan-
tively unreasonable sentence only when it (1) fails to afford consid-
eration 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 fac-
tors.” United States v. Taylor, 997 F.3d 1348, 1355 (11th Cir. 2021).
The district court reasonably determined, after stating that
it carefully considered all of the sentencing factors, that a total sen-
tence of 64 months of imprisonment accounted for Felix’s “serious”
offense conduct and provided adequate deterrence to her and to
others. The selection of a sentence less than the statutory maxi-
mum of ten years on the first count alone and within Felix’s guide-
line range also suggests that the sentence is reasonable. See United
States v. Croteau, 819 F.3d 1293, 1310 (11th Cir. 2016); United
States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). Felix argues that
the district court failed to meaningfully consider her personal his-
tory, but the district court heard her allocution and was “not re-
quired to explicitly address each of the § 3553(a) factors or all of the
mitigating evidence.” Taylor, 997 F.3d at 1354.
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We AFFIRM Felix’s convictions and sentence.