United States v. Yoel Graveran-Palacios

USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 1 of 22
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13814
________________________
D.C. Docket No. 8:17-cr-00373-CEH-JSS-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
YOEL GRAVERAN-PALACIOS,
NOEL GRAVERAN-PALACIOS,
Defendants - Appellants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 6, 2020)
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 2 of 22
Before MARTIN, ROSENBAUM, and TALLMAN,* Circuit Judges.
MARTIN, Circuit Judge:
The Petition for Panel Rehearing filed by the Government is GRANTED.
The opinion issued on October 15, 2020 is VACATED, and this opinion is issued
in its stead.
***
In this consolidated appeal, twin brothers Yoel and Noel Graveran-Palacios
appeal from their convictions and sentences for various counts of access device
fraud, aggravated identity theft, and conspiracy to commit access device fraud.
Yoel 1 challenges his convictions on two grounds, arguing: (1) there was
insufficient evidence to support his aggravated identity theft conviction; and (2) the
District Court plainly erred by admitting overview and summary testimony from a
lead police investigator in the case. Both brothers challenge their sentences, saying
the District Court was wrong to increase their offense levels based on victims for
which they were not directly responsible. Noel also argues that the District Court
erred in denying him a minor role reduction. After careful consideration, we
affirm the District Court’s holdings.
* The Honorable Richard C. Tallman, Circuit Judge for the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
1
Since the Appellants share a last name, we refer to them by their first names.
2
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 3 of 22
I. BACKGROUND
A. INDICTMENT, ARREST, AND TRIAL
In July 2017, a federal grand jury in the Middle District of Florida charged
both Yoel and Noel Graveran-Palacios with conspiracy to commit access device
fraud and aggravated identity theft, in violation of 18 U.S.C. § 371. In addition,
Noel was charged with six counts of access device fraud, in violation of 18 U.S.C.
§§ 1029(a)(1) and 1029(b)(1), (2), and three counts of aggravated identity theft, in
violation of 18 U.S.C. §§ 1028A and 2. And Yoel was individually charged with
one count of substantive access device fraud, in violation of 18 U.S.C.
§ 1029(a)(1), (2) and one count of aggravated identity theft, in violation of 18
U.S.C. §§ 1028A and 2.
Both brothers pled not guilty and proceeded to trial. Evidence at trial
included the results of an extensive investigation by Tampa Police and Hernando
County Sheriff’s detectives into Yoel, Noel, and coconspirators Lazaro Hernandez-
Cabrales and Ricardo Romero-Mesa. The evidence at trial ultimately included
testimony from Mr. Hernandez-Cabrales who cooperated with law enforcement.2
The evidence showed that the four men worked together to produce fraudulent
credit cards, make purchases using those cards, and return merchandise for cash.
2
In his testimony, Mr. Hernandez-Cabrales refers to Yoel and Noel as the “Habana twin” and the
“Douglas twin.” We gather Yoel is the “Habana twin” and Noel is the “Douglas twin.”
3
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 4 of 22
The men primarily retrieved account information and produced counterfeit cards
by using skimmers. At least as to this conspiracy, skimmers are devices that attach
to internal components of a gas station pump to capture information from credit
cards used to buy gas. Testimony showed these conspirators used the counterfeit
cards to make purchases at stores including Home Depot, Target, Walgreens, and
AutoZone.
As part of the investigation, searches were conducted of Mr. Hernandez-
Cabrales’s residence, Noel’s residence and vehicle, and a storage room rented in
the name of Noel’s girlfriend. These searches revealed hundreds of gift cards and
credit cards; numerous receipts for purchases and returns of merchandise; high end
purses and clothing; receipts for wire transfers to the Ukraine; a Square credit card
reader; 3 electronic goods; and clothing identical to what Noel was seen wearing in
surveillance footage at Target. Police also seized four computers. Upon searching
those computers, investigators learned that one of them had been used to purchase
at least 74 credit card numbers from a Ukrainian dark web site including some that
were associated with a 2014 data breach from Home Depot.
At trial, neither Yoel nor Noel presented evidence in their defense. Upon the
close of evidence, each brother moved for a judgment of acquittal, pursuant to
3
A Square credit card reader is used with an iPhone to swipe credit cards.
4
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 5 of 22
Federal Rule of Criminal Procedure 29. The District Court denied their motions,
and the jury convicted Yoel and Noel on all counts.
B. NOEL’S SENTENCING
Noel’s presentence investigation report (“PSR”) stated that, over the course
of the conspiracy, investigators recovered a total of 1,300 credit or debit cards and
about 1,867 stolen credit card numbers. The PSR calculated the total intended loss
amount for the entire conspiracy as $933,500. For Noel, the PSR listed fifteen
financial institutions that collectively experienced losses of $20,652.88.
As to the access device fraud charges, the PSR assigned Noel a base offense
level of 6, under Guidelines § 2B1.1(a)(2). It added 14 points to the offense level
under Guidelines § 2B1.1(b)(1)(H), because the loss amount was more than
$550,000 but less than $1,500,000. The PSR calculated the loss amount by
multiplying the total number of recovered access devices, 1,867, by $500. This
calculation is pursuant to Guidelines § 2B1.1(b)(1), cmt. n.3(F)(i) that provides, in
a case involving counterfeit or unauthorized devices, the loss amount “shall be not
less than $500 per access device.”
The PSR also increased Noel’s offense level by two because the offense
involved ten or more victims, pursuant to Guidelines § 2B1.1(b)(2)(A)(i). It added
another two-level increase pursuant to § 2B1.1(b)(10)(C) because the offense
involved sophisticated means. It added a third two-level enhancement because the
5
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 6 of 22
offense involved device-making equipment, under § 2B1.1(b)(11)(A). Finally, it
added a fourth two-level upward adjustment as a punishment for Noel’s
obstruction of justice, under § 3C1.1, because he absconded while he was on bond
and a bench warrant had to be issued. These calculations led to a total offense
level of 28.
For aggravated identity theft convictions, the statute requires a two-year
minimum sentence, to be imposed consecutively to the sentence for the conspiracy
and access device fraud charges. Based on a total offense level of 28 and a
criminal history category of I, Noel’s guideline imprisonment range was 78- to 97-
months’ imprisonment. The PSR also listed 15 banks as victims of the conspiracy,
and said that restitution was owed to those banks in the total amount of $20,652.88.
Noel objected to the loss amount, arguing the amount should be $3,000
instead of $933,500. He argued there was no credible evidence that all the card
numbers associated with the conspiracy should be attributed to him. He said he
should be accountable only for the six credit cards he used, resulting in a total loss
amount of $3,000. In the alternative, he argued that the most he should be held
responsible for was the 75 credit card numbers found on Mr. Hernandez-Cabrales’s
computer. Fixing the number at 75 cards, Noel would be held responsible for a
loss amount of only $37,500, which would result in a four-level, rather than 14-
level, increase in his offense level. He objected to the PSR’s failure to award him
6
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 7 of 22
a minor role reduction, because he argued he was a “bit player” in the conspiracy
who did not participate in the bulk of the work involved in getting and using the
credit cards. He also objected to the increase in his offense level based on an
enhancement for ten-or-more victims, stating that only six accounts were related to
his activity. Finally, he objected to Paragraph 27 of the PSR, which reported that
Mr. Hernandez-Cabrales divulged that Noel installed the credit card skimmers on
gas pumps throughout the Middle District of Florida, and then divided the stolen
account numbers with Hernandez-Cabrales.
The District Court overruled Noel’s objections. As to the loss amount, it
held that the full amount was “reasonably foreseeable” based on the acts and
omissions of others during the course of the conspiracy. As to the number of
victims, the court found it appropriate to consider the number of victims involved
in the entire conspiracy, rather than only those involved with the specific accounts
related to Noel. And as to the minor-role reduction, the court observed there was
no evidence that Noel was less culpable than any other participant in the
conspiracy.
The court adopted the facts in the PSR, and sentenced Noel to 60-months’
imprisonment for the conspiracy charge and 97-months’ imprisonment for the
access device fraud charges, to be served concurrently. It ordered 24-months’
imprisonment for the aggravated identity theft charge, to be served consecutive to
7
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 8 of 22
his 97-month sentence, and three years of supervised release. The court also
ordered Noel to pay, jointly and severally with his co-defendants, a total of
$20,652.88 in restitution to 15 different banks that were victims of the conspiracy.
C. YOEL’S SENTENCING
Yoel’s PSR began with a base offense level of 6, under Guidelines
§ 2B1.1(a)(2). It added 14 points to Yoel’s offense level based on the total
intended loss amount of $933,300, under § 2B1.1(b)(1)(H). It added two more
points under § 2B1.1(b)(2)(A)(i), based on its finding that the offense involved ten
or more victims. It also added two points for the use of “sophisticated means,”
under § 2B1.1(b)(10)(C), and two more for use of device-making equipment, under
§ 2B1.1(b)(11)(A). Yoel also received an additional two-level enhancement based
on his obstruction of justice. This resulted in a total offense level of 28 and a
criminal history category of I for Yoel, which gave him a guideline range of 78- to
97-months’ imprisonment.
Yoel filed no objections to the PSR and did not object to the PSR at
sentencing. The District Court adopted the PSR’s findings of fact and guideline
calculations in full. It sentenced Yoel to 60-months’ imprisonment for the
conspiracy charge and 84-months’ imprisonment for the substantive access device
fraud charge, to be served concurrently. Yoel received the required 24-month
consecutive sentence for the aggravated identity theft conviction. He also received
8
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 9 of 22
a three-year term of supervised release. The court required Yoel to pay, jointly and
severally with his co-defendants, a total of $20,652.88 in restitution to 15 different
banks that it deemed to be victims of the conspiracy.
II. STANDARDS OF REVIEW
We review de novo whether there is sufficient evidence to support a jury
verdict in a criminal trial, drawing all reasonable inferences and credibility
evaluations in favor of the jury verdict. United States v. Doe, 661 F.3d 550, 560
(11th Cir. 2011).
We review for clear error the district court’s factual findings underlying a
sentence. United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013). This
includes the calculation of the number of victims, id., the loss resulting from the
reasonably foreseeable acts of coconspirators in furtherance of a conspiracy,
United States v. Rodriguez, 751 F.3d 1244, 1256 (11th Cir. 2014), and the
determination of whether a defendant qualified for a minor-role reduction, United
States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).
When a defendant fails to preserve an evidentiary ruling by
contemporaneous objection, we review the admission of that evidence for plain
error. United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007).
9
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 10 of 22
III. YOEL’S APPEAL
Yoel raises three issues on appeal. First, he argues there was insufficient
evidence to convict him of aggravated identity theft in violation of 18 U.S.C.
§ 1028A(a)(1). Second, he argues the District Court committed plain error by
permitting a law enforcement witness to present what he refers to as overview and
summary testimony. Third, he argues the District Court committed plain error
when it found that his crime had ten or more victims, and sentenced him more
harshly as a result. We address each in turn.
A. SUFFICIENCY OF THE EVIDENCE
Aggravated identity theft has four elements: the defendant (1) knowingly
transferred, possessed, or used (2) the means of identification of another person
(3) without lawful authority (4) during and in relation to a predicate act, including
access device fraud. 18 U.S.C. § 1028A(a)(1); see also United States v. Pierre, 825
F.3d 1183, 1194 (11th Cir. 2016). To convict Yoel of aggravated identity theft, the
government was required to prove he “knew the identity he was using belonged to
a real person.” Doe, 661 F.3d at 561. Knowledge can be proved “with little
difficulty” and by circumstantial evidence. Id. (quoting Flores-Figueroa v. United
States, 556 U.S. 646, 656, 129 S. Ct. 1886, 1893 (2009)); see also United States v.
Gomez-Castro, 605 F.3d 1245, 1248 (11th Cir. 2010).
10
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 11 of 22
Yoel argues that the evidence at trial was not sufficient to show either that
the means of identification used to commit the crime belonged to a real person or
that Yoel knew it belonged to a real person. Specifically, he argues that the
government failed to prove that “K.P.,” the identified victim of Yoel’s aggravated
identity theft, is a real person, as opposed to a fictitious person or a corporate
entity. Drawing all reasonable inferences in favor of the jury verdict, this
argument fails.
The evidence presented at trial showed that the account number at issue
belonged to real people named Sharon and Kenneth Pearson, who were married to
each other. Yoel’s argument that “K.P.” is not a real person is based on his
assertion that neither Kenneth nor Sharon Pearson testified at trial. But in fact
Sharon Pearson did testify at trial. Ms. Pearson testified that in 2014 charges were
made at Shell Oil to a Bank of America account she held jointly with her husband,
that she did not authorize those charges, and that she had physical possession of
her debit card at the time the charges were made. Detective Sharla Canfield also
testified that the card’s true account holders were Sharon and Kenneth Pearson. In
combination, this evidence clearly supports a finding that the account number at
issue in Yoel’s aggravated identity theft charge belonged to a real person.
Yoel argues that, even assuming sufficient evidence to prove the account
belonged to a real person, the government did not prove that Yoel knew, verified,
11
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 12 of 22
or attempted to verify that Kenneth or Sharon Peterson were real persons. Yoel is
right that there is little evidence demonstrating he knew the card belonged to a real
person. Nevertheless, because we have concluded there was sufficient evidence to
support Yoel’s conviction under Pinkerton co-conspirator liability, we need not
address the sufficiency of evidence of Yoel’s personal knowledge.
Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180 (1946) provides
that “[e]ach party to a continuing conspiracy may be vicariously liable for
substantive criminal offenses committed by a co-conspirator during the course and
in the furtherance of the conspiracy, notwithstanding the party’s non-participation
in the offenses or lack of knowledge thereof.” United States v. Mothersill, 87 F.3d
1214, 1218 (11th Cir. 1996). Pinkerton liability applies “where the substantive
crime is also a goal of the conspiracy” and includes “reasonably foreseeable but
originally unintended substantive crimes.” Id.The District Court instructed the jury on Pinkerton liability. It explained that
if the jury found Yoel guilty of conspiracy, it could find him guilty “of any of the
crimes he is charged with . . . even if [he] did not personally participate in the
crime.” To do so, the jury was instructed it had to find beyond a reasonable doubt
that (1) during the conspiracy a conspirator committed the additional crime to
further the conspiracy’s purpose; (2) the defendant was a knowing and willful
member of the conspiracy when the crime was committed; and (3) it was
12
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 13 of 22
reasonably foreseeable that a co-conspirator would commit the crime. Mr.
Hernandez-Cabrales testified here that he was “getting credit cards from people
that were not mine and I was loading them and making purchases.” Testimony
supports the finding that he, who was one of Yoel’s co-conspirators, knowingly
used the identities of real people to commit access device fraud. This meets the
elements of aggravated identity theft. See 18 U.S.C. § 1028A(a)(1). And there is
no meaningful dispute that Yoel was a knowing participant in the conspiracy at the
time of Mr. Hernandez-Cabrales’s crimes or that using the identities of real people
was a reasonable consequence of the conspiracy.4 Under Pinkerton, this is
sufficient to support Yoel’s conviction.
B. ADMISSION OF OVERVIEW AND SUMMARY TESTIMONY
Yoel argues that the District Court plainly erred in admitting what he
characterizes as the overview and summary testimony of Detective Canfield. At
trial, Detective Canfield was the first witness and the last. The Detective’s
testimony covered the broad scope of the lengthy, multi-part investigation that led
to Yoel and Noel’s indictments. Through her, the government introduced a
number of summary exhibits. Yoel argues that this overview testimony is
4
Because Yoel does not address Pinkerton liability on appeal, the issue is abandoned and
provides an independent ground for affirming his conviction for aggravated identity theft. See
United States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001) (per curiam) (“[I]ssues and
contentions not timely raised in the briefs are deemed abandoned.”).
13
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 14 of 22
impermissible because it allows law enforcement officers to give lay opinion
testimony about the anticipated evidence in the case. He further argues that
Detective Canfield’s summary testimony went beyond the scope of Federal Rule of
Evidence 1006 because it amounted to a closing argument. Because Yoel did not
object to these admissions below, we review them for plain error. Turner, 474
F.3d at 1275. We find none.
1. Overview testimony
The District Court did not plainly err when it admitted Detective Canfield’s
testimony. “It is the law of this circuit that, at least where the explicit language of
a statute or rule does not specifically resolve an issue, there can be no plain error
where there is no precedent from the Supreme Court or this Court directly
resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003)
(per curiam). The Supreme Court has not decided whether so-called overview
testimony is admissible, and the topic comes up in the published decisions of this
circuit only as dicta. See United States v. Khan, 794 F.3d 1288, 1300 (11th Cir.
2015) (noting that “prosecutors should not permit investigators to give overview
testimony” but clarifying that overview testimony “is not what happened” in that
case (quotation marks omitted)); United States v. Ransfer, 749 F.3d 914, 927 n.14
(11th Cir. 2014) (acknowledging that other circuits have “raised serious concerns
14
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 15 of 22
with overview witnesses” but not reaching the issue). As a result, there can be no
plain error.
2. Summary testimony
Yoel’s challenges to Detective Canfield’s summary testimony also fail
because any error was invited. “[W]here the injection of allegedly inadmissible
evidence is attributable to the action of the defense, its introduction does not
constitute reversible error.” United States v. Martinez, 604 F.2d 361, 366 (5th Cir.
1979) (quotation marks omitted). 5 Defense counsel invites error when it
“affirmatively stipulate[s]” to the admission of evidence or “orally consent[s]” to
the alleged error. United States v. Jernigan, 341 F.3d 1273, 1290 (11th Cir. 2003)
(quotation marks omitted). Where the doctrine of invited error applies, “review is
waived even if plain error would result.” United States v. Frank, 599 F.3d 1221,
1240 (11th Cir. 2010).
Here, Yoel’s defense counsel invited any error. It is true that Yoel’s counsel
initially objected to the admission of Detective Canfield’s summary testimony.
However, counsel later clarified that her objection was limited to testimony
regarding identity and that she “[didn’t] have a problem with [Canfield’s] general
summary.” Because trial counsel affirmatively agreed to the admission of
5
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as binding
precedent all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at
1209.
15
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 16 of 22
Detective Canfield’s summary testimony, any error was invited and no remedy is
available as a result. See Jernigan, 341 F.3d at 1290 (“[A] criminal defendant may
not make an affirmative, apparently strategic decision at trial and then complain on
appeal that the result of that decision constitutes reversible error.”).
C. TEN-OR-MORE VICTIMS ENHANCEMENT
Yoel challenges the application of a two-level increase for an offense
involving ten or more victims, pursuant to Guidelines § 2B1.1(b)(2)(A)(I). Again
here, Yoel did not object to this increase at sentencing. Therefore, we review this
issue for plain error. United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir.
2009).
Our review of the record persuades us that the District Court did not plainly
err when it applied the ten-or-more victims enhancement to his sentence without
supporting findings. Under § 2B1.1(b)(2)(A)(i), a victim is defined as “any person
who sustained any part of the actual loss determined under subsection (b)(1),” with
person including “individuals, corporations, companies, associations, firms,
partnerships, societies, and joint stock companies.” USSG § 2B1.1, cmt. n.1. For
purposes of the sentencing enhancement based on the number of victims, our Court
has expressly established that “the number of victims is defined in relation to the
loss calculation” and the district court “must make independent findings to support
16
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 17 of 22
its calculation of loss.” United States v. Foley, 508 F.3d 627, 633–34 (11th Cir.
2007).
For Yoel, the District Court made the proper findings. Paragraph 38 of
Yoel’s final PSR6 identifies the 15 banks who were victims of the conspiracy and
states the loss amount for each. That is what the District Court was required to do
in order to increase Yoel’s offense level based on having ten or more victims, and
so the court did not plainly err.
IV. NOEL’S APPEAL
Noel does not challenge the jury verdict and appeals only his sentence. He
argues the District Court erred in calculating the loss amount and total number of
victims and in declining to apply a reduction for his playing a minor role in the
offense.
A. LOSS AMOUNT AND NUMBER OF VICTIMS
We begin with Noel’s argument that the District Court erred by holding him
accountable for all 1,867 credit cards used in the conspiracy. He claims he should
6
We now know that Yoel’s original PSR was revised on August 28, 2018. His original PSR was
the version officially filed under seal with this Court on May 6, 2019. That version did not
contain the required loss amount findings included in the revised document. The parties alerted
us to Yoel’s amended PSR over a year after the original version was filed with our court, and
after we issued the October 15, 2020 opinion that relied on Yoel’s original PSR. It is not clear
from the record before us whether Yoel’s counsel reviewed the final PSR before Yoel’s
sentencing. Although this is a possible topic for a habeas proceeding we do not consider it here.
At this time, and with the benefit of Yoel’s operative PSR, we are able to issue this corrected
opinion addressing his direct appeal.
17
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 18 of 22
be held responsible only for the use of six cards, because the evidence showed that
only two cards were found in his home and there is no evidence that his
involvement in the conspiracy went beyond the use of six cards. Based on the use
of six cards, Noel argues his sentence should be enhanced only for an intended loss
amount of $3,000. He argues as well that the two-level enhancement for a crime
involving ten-or-more victims should not have been applied.
Under § 2B1.1(b)(1)(H), a 14-level enhancement applies when the loss
amount is more than $550,000 but less than $1,500,000. For purposes of § 2B1.1,
“loss” is “the greater of actual or intended loss.” USSG § 2B1.1 cmt. n.3(A). The
Guidelines prescribe a minimum loss amount of $500 per access device for crimes
involving “counterfeit” or “unauthorized” access devices, which includes credit
cards or other means of account access that can be used to obtain money, goods, or
a transfer of funds. See USSG § 2B1.1 cmt. n.3(F)(i); 18 U.S.C. § 1029(e)(1).
When calculating the loss amount and number of victims, the district court must
consider all relevant conduct. United States v. Siegelman, 786 F.3d 1322, 1332
(11th Cir. 2015). Where a case involves jointly undertaken criminal activity,
relevant conduct includes “all acts and omissions of others that were (i) within the
scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal
activity, and (iii) reasonably foreseeable in connection with that criminal activity.”
USSG § 1B1.3(a)(1)(B). To determine a defendant’s liability for the acts of others
18
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 19 of 22
at sentencing, the district court “must first make individualized findings concerning
the scope of criminal activity undertaken by a particular defendant.” United States
v. Hunter, 323 F.3d 1314, 1319 (11th Cir. 2003) (quotation marks omitted). Only
after making these individualized findings can the district court determine the
reasonable foreseeability of other criminal conduct. Id.Our review of the record supports the District Court’s holding that the full
loss amount attributed to Noel was the result of reasonably foreseeable acts of
others involved in the conspiracy. Considering “the evidence at trial . . . that
[Noel] participated,” the court found that the total loss amount was “reasonably
foreseeable based upon the acts and omissions of others in furtherance of the
jointly undertaken criminal activity.” The findings in Noel’s PSR, which the
district court adopted, stated that Noel helped Mr. Romero-Mesa and Mr.
Hernandez-Cabrales steal prepaid cards; that Hernandez-Cabrales produced
counterfeit cards for Noel; and that counterfeit credit cards embossed with Noel’s
name were found near Hernandez-Cabrales’s computer during a search. Evidence
at trial also showed that Noel accompanied Yoel and Mr. Hernandez-Cabrales to
purchase a credit card skimmer that was later installed on a gas pump. Police later
found a storage unit in the name of Noel’s girlfriend containing electronic goods
and clothing that appeared to have been acquired in the course of the conspiracy.
19
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 20 of 22
This evidence shows Noel’s participation at several steps of the conspiracy
and demonstrates that his involvement went further than simply using fraudulent
credit cards.7 In particular, Noel’s involvement in purchasing a card skimmer
supports the conclusion that the full loss amount was reasonably foreseeable and
within the scope of his participation in the conspiracy because he would, or should,
have known that the card skimmer would be used to collect credit card
information. Far from leaving a “definite and firm conviction that a mistake has
been committed” in calculating the loss for which Noel was liable, United States v.
Campbell, 765 F.3d 1291, 1302 (11th Cir. 2014) (quotation marks omitted), the
record reveals that Noel was directly involved in multiple, critical steps of the
conspiracy, and the total loss amount was thus reasonably foreseeable to him.
Because we find no error in the District Court’s calculation of the total loss
amount, we also find no error in the court’s imposition of a two-level enhancement
for ten-or-more victims under § 2B1.1(b)(2)(A)(i). Noel does not dispute that
there were more than ten victims in the conspiracy and, like Yoel’s PSR, Noel’s
PSR specifically lists 15 institutional victims and the actual loss amounts they
experienced. As a result, the District Court did not err when it lengthened Noel’s
7
To the extent Noel challenges the credibility of trial witnesses whose testimony established the
scope of his participation in the crime, the District Court did not err in crediting that testimony.
We afford “great deference” to the District Court’s credibility determinations, and Noel provides
us with no reason to discredit any specific witnesses. United States v. Singh, 291 F.3d 756, 763
(11th Cir. 2002) (quotation marks omitted).
20
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 21 of 22
sentence based on the number of victims and included those amounts in his
restitution order.
B. MINOR ROLE REDUCTION
Next, we address Noel’s argument that the District Court improperly denied
his motion for a “a minor participant” reduction pursuant to § 3B1.2(b). The
Guidelines provide for a two-level decrease in a defendant’s offense level if he
played a minor role in the conspiracy. USSG § 3B1.2. A “minor participant” is
not one whose role is “minimal,” but one who is less culpable than most other
defendants in the conspiracy. USSG § 3B1.2 cmt. n.5. Two principles inform
whether the adjustment is warranted. First, the district court must “measure the
defendant’s role against the relevant conduct for which [he] has been held
accountable” in calculating his base offense level. Rodriguez, 175 F.3d at 940.
Second, the district court may also compare the defendant’s culpability to that of
other participants. Id. at 944. Minor participants are those who are “plainly among
the least culpable of those involved in the conduct of a group.” Id. (quoting USSG
§ 3B1.2, cmt. n.1) (quotation marks omitted). The decision about whether a
defendant qualifies for a minor role adjustment is a finding of fact that we review
for clear error. Id. at 934. As the proponent of the downward adjustment, Noel
bears the burden of establishing his minor role by a preponderance of the evidence.
Id.
21
USCA11 Case: 18-13814 Date Filed: 11/06/2020 Page: 22 of 22
Based on trial evidence and uncontested facts in the PSR, the District Court
held that Noel’s role “simply could not be described as minimal,” especially
considering (1) evidence that he assisted in obtaining and installing credit card
skimming devices and (2) evidence that he used counterfeit credit cards at various
retailers. This finding is in keeping with our review of the record. The evidence
showed not only that Noel made purchases with fraudulent credit cards, but also
that (1) he connected Mr. Hernandez-Cabrales with a person who sold credit card
skimmers and went with Hernandez-Cabrales to get them; (2) Hernandez-Cabrales
and Yoel shared a portion of the skimmed card numbers with Noel; and (3) a
Square credit card reader was found at Noel’s home. In light of this evidence, and
the lack of other record evidence suggesting Noel played a minor role, the District
Court did not commit clear error by denying his motion for a minor role
adjustment.
* * *
For these reasons, we affirm the judgment of the District Court.
AFFIRMED.
22