            Case: 14-10910    Date Filed: 09/23/2014   Page: 1 of 6


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10910
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:13-cr-20759-KMW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

WENDY SANDS,

                                                           Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (September 23, 2014)

Before TJOFLAT, HULL, and MARCUS, Circuit Judges.

PER CURIAM:
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       Pursuant to a plea agreement, Wendy Sands pled guilty to two counts of a

three-count indictment: Count One, possession of fifteen or more unauthorized

access devices, in violation of 18 U.S.C. § 1029(a)(3); Count Two, aggravated

identity theft, in violation of 18 U.S.C. § 1028A. The District Court sentenced

Sands to consecutive prison sentences: two months on Count One, which was a

two-month downward variance from the Guidelines sentence range, and twenty-

four months on Count Two, the mandatory minimum sentence prescribed by

statute.1 She now appeals her sentences.2

       In her brief, Sands presents an argument she did not present to the District

Court—that in calculating the Guidelines sentence range for the Count One

offense, the court erred by applying a two-level enhancement under U.S.S.G. §

2B1.1(b)(11)(B) because her conduct did not meet the ordinary definition of

“trafficking,” as opposed to the definition of that term in 18 U.S.C § 2019(e). In

its response, the Government concedes that application of § 2B1.1(b)(11)(B) was

erroneous because Sands was categorically ineligible for the enhancement pursuant

to Application Note 2 to U.S.S.G. § 2B1.6, but contends that the error did not

affect her substantial rights. We agree and therefore affirm.



       1
          Under U.S. Sentencing Guidelines Manual [hereinafter U.S.S.G.] § 5G1.2(a), the
mandatory two-year term of imprisonment imposed on Count Two had to be imposed
consecutively to the Count One sentence.
        2
          As the following discussion makes clear, Sands is not challenging her mandatory
prison sentence on Count Two.
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       We review all sentences under a deferential abuse-of-discretion standard.

Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591, 169 L. Ed. 2d 445

(2007). “A sentence may be procedurally unreasonable and therefore an abuse of

discretion if the court commits a significant procedural error,” such as improperly

calculating the guideline range. United States v. Bonilla, 579 F.3d 1233, 1245

(11th Cir. 2009). However, where, as here, the defendant failed to present the

same argument to the sentencing court, we review the argument for plain error.

United States v. McNair, 605 F.3d 1152, 1222 (11th Cir. 2010); see also United

States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014) (holding that “[t]he

defendant . . . fails to preserve a legal issue for appeal if the factual predicates of an

objection are included in the sentencing record, but were presented to the district

court under a different legal theory” (alteration in original) (emphasis and

quotation marks omitted)).

      Plain error occurs when there is (1) an error, (2) that is plain, and (3) that

affects substantial rights. McNair, 605 F.3d at 1222. If the first three conditions

are met, then we “may exercise discretion to correct a forfeited error, but only if

(4) the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id. (quotation marks omitted). “Plain is synonymous with clear or,

equivalently, obvious.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct.

1770, 1777, 123 L. Ed. 2d 508 (1993) (quotations omitted). For an error to affect


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substantial rights, “in most cases it means that the error must have been prejudicial:

It must have affected the outcome of the district court proceedings.” Id. at 734,

113 S. Ct. at 1778. To establish prejudice, the defendant must show a reasonable

probability of a different result. United States v. Rodriguez, 398 F.3d 1291, 1299–

1300 (11th Cir. 2005). If we would have to speculate whether the result would

have been different, the defendant has not met the burden to show that her

substantial rights have been affected. Id. at 1301.

      Under U.S.S.G § 2B1.1(b)(11)(B), a two-level enhancement is merited if the

offense involved the “production or trafficking” of any unauthorized access device,

counterfeit access device, or authentication feature. The Application Notes to §

2B1.1 define “production” as including manufacture, design, alteration,

authentication, duplication, or assembly. Id. comment. (n.10(A)). Notably, the

commentary to § 2B1.1 does not include a definition for “trafficking.” See id.

      Application Note 2 to U.S.S.G § 2B1.6, which addresses aggravated identity

theft, provides the following:

      If a sentence under this guideline is imposed in conjunction with a
      sentence for an underlying offense, do not apply any specific offense
      characteristic for the transfer, possession, or use of a means of
      identification when determining the sentence for the underlying
      offense. A sentence under this guideline accounts for this factor for
      the underlying offense of conviction, including any such enhancement
      that would apply based on conduct for which the defendant is
      accountable under [U.S.S.G.] § 1B1.3 (Relevant Conduct). “Means of
      identification” has the meaning given that term in 18 U.S.C.
      § 1028(d)(7).
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A “means of identification” includes numbers and access devices. 18 U.S.C. §

1028(d)(7)(A), (D).

      In United States v. Charles, No. 13-11863, manuscript op. at 2, 5 (11th Cir.

July 7, 2014), we addressed a similar issue involving a defendant who transferred a

stolen debit card to another party. The District Court applied the enhancement in

§ 2B1.1(b)(11)(B) for the trafficking of an unauthorized access device to his

conspiracy offense, when he was also convicted and consecutively sentenced under

§ 1028A. Charles, No. 13-11863, manuscript op. at 4–5. On appeal, we held that

Charles’s § 1028A conviction already accounted for his transfer of a stolen debit

card and, therefore, the § 2B1.1(b)(11)(B) enhancement was improper as to the

conspiracy count. Id. at 8–9; see also United States v. Cruz, 713 F.3d 600, 605–08

(11th Cir. 2013) (holding that Application Note 2 to § 2B1.6 prohibited an

enhancement under § 2B1.1(b)(10)(A)(i), for the use of device-making equipment,

to defendants who were convicted of violating § 1028A).

      Although Sands argues that the District Court erred by applying a two-level

enhancement under § 2B1.1(b)(11)(B) because her conduct did not meet the

ordinary definition of “trafficking,” as opposed to the definition of that term in

§ 2019(e), we need not address that issue because she was categorically ineligible

for that enhancement pursuant to Application Note 2 to § 2B1.6. The error in

applying the enhancement did not affect her substantial rights or seriously affect
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the fairness, integrity, or public reputation of the judicial proceedings because she

received a significant downward variance on Count One, and there is no evidence

in the record that the court would have reduced her sentence on that count further if

the two-level enhancement was not applied.

      AFFIRMED.




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