         Case: 15-14999   Date Filed: 03/22/2018   Page: 1 of 32


                                                        [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 15-14999
                     ________________________

                D.C. Docket No. 1:15-cr-20032-DPG-3


UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                versus

BRIAN DERONCELER,
LATASHA PHARR,

                                                      Defendants-Appellants.

                     ________________________

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

                           (March 22, 2018)
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Before MARTIN, JORDAN and GINSBURG, * Circuit Judges.

GINSBURG, Circuit Judge:

       Brian Deronceler and Latasha Pharr each appeal their convictions on charges

of aggravated identity theft, bank fraud, and conspiracy to commit bank fraud, in

violation of 18 U.S.C. §§ 1028A, 1344, and 1349, respectively. The appellants

were tried in a single jury trial, and both are presently incarcerated. Deronceler is

serving a sentence of 183 months, Pharr 259 months.

       Deronceler and Pharr raise seven issues on appeal. Both argue (1) the

evidence is insufficient to support their respective conspiracy convictions, which

Deronceler also advances as an appeal from the denial of his motion for Judgment

of Acquittal. Pharr separately argues the district court erred by (2) denying her

request for a jury instruction regarding the entrapment defense and (3) including

victims and losses associated with crimes committed by others when calculating

her sentence. Deronceler separately adds four more issues, (4) arguing the

evidence is insufficient to support his convictions for bank fraud and aggravated

identity theft, (5) appealing certain evidentiary objections made and rejected at

trial, (6) alleging the prosecutor engaged in misconduct during her closing

argument, and (7) challenging aspects of his sentencing.



       *
       Honorable Douglas H. Ginsburg, United States Circuit Judge for the District of
Columbia Circuit, sitting by designation.
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      Having reviewed the record and the parties’ briefs, and with the benefit of

oral argument, we vacate Pharr’s sentence and remand her case to the district court

for resentencing. We affirm Pharr and Deronceler’s convictions in all other

respects.

                               I.      BACKGROUND

      Deronceler and Pharr were convicted of offenses stemming from a scheme

to create and to cash fraudulent checks. Several other members of the alleged

conspiracy pleaded guilty and were sentenced separately. See, e.g., United States

v. Presendieu, 880 F.3d 1228 (11th Cir. 2018) (affirming the conviction of co-

conspirator Presendieu, vacating the sentence of co-conspirator Jean, and

remanding for resentencing). Because Deronceler and Pharr challenge the

sufficiency of the evidence, we review the facts in detail.

A.    Relevant Facts
      Deronceler and Pharr both provided fraudulent checks to Husein Ali Habib,

who owned a Kwik Stop convenience store in Boca Raton, Florida. Habib’s store

included a check cashing service; in addition to legitimate checks, Habib cashed

fraudulent checks. When cashing checks Habib knew to be fraudulent, he

demanded a fee equal to 20%, 30%, or even 50% of the face value of the check.

      Each transaction would begin with an individual preparing a fraudulent

check made out to an unwitting third party, for example, “Jane Doe.” The bearer


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would also forge Jane Doe’s endorsement of the check and present fake

identification purportedly from Jane Doe. For larger checks the bearer would also

provide a thumb print – purposely smudged beyond recognition – purporting to be

Jane Doe’s. Habib would immediately pay his co-conspirator a portion of the face

value of the check in cash. He would then deposit the check at Bank of America,

SunTrust, or another FDIC-insured commercial bank, which in turn would seek

payment from the issuing institution, whether the U.S. Treasury or another bank.

      Habib trafficked in fraudulent checks presented by a rotating cast of

characters. In 2010 he began dealing with Jason Miles. When several of the

checks provided by Miles were returned unpaid, Habib ceased dealing with him.

Miles then introduced Habib to Stanley Presendieu, whom he called the “head of

the horse,” and Habib began cashing checks for Presendieu. Habib ceased cashing

Presendieu’s checks sometime in 2012, whereupon Presendieu introduced Habib to

Grace Vila. In January 2013 Habib ceased cashing checks for Vila, who then

introduced him to defendant Pharr.

      Vila explained that Pharr was Presendieu’s ex-girlfriend and that she used to

cash checks for Presendieu, but they had fallen out so Pharr was going out on her

own. Habib agreed to cash checks for Pharr and began doing so in March 2013.

Because Habib had lost money on returned checks provided by Presendieu, and

because Pharr was connected to Presendieu, Pharr and Habib agreed that Habib


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would recoup his losses by charging her a fee of 50%, which was significantly

above the 20% fee they had previously contemplated.

      Pharr was also the office manager of a tax preparation firm called “B.D.

Tax,” an enterprise established by Presendieu in Pharr’s name and using her

federal electronic filing identification number (EFIN). B.D. Tax was responsible

for preparing the tax returns of several victims of identity theft, including M.C.,

J.S., and T.A. Presendieu tendered fraudulent checks made out to M.C. and J.S. in

2011, which Habib then cashed. Pharr later told Habib that she gave Presendieu

checks to cash at Habib’s Kwik Stop in 2012 and described Presendieu as her

“business partner.”

      The FBI raided Habib’s business in June 2013. Habib opted to cooperate

with the FBI and became a confidential informant. After the raid, Pharr

temporarily ceased doing business with Habib, and Habib resumed his relationship

with Presendieu. When the FBI instructed Habib to cut off Presendieu, Presendieu

introduced him to Scarlee Valais Jean. When the FBI cut off Jean, she introduced

Habib to Brian Deronceler.

      Deronceler and Habib met in November 2013. Deronceler described himself

as “the boss,” said he was there “to take care of things” and to “get things going,”

and said he had heard there had been “confusion” between Habib and Presendieu.

He also reassured Habib that Presendieu “is not part of my entourage at all.” Over


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the following months, Deronceler brought Habib several fraudulent checks and

fake identification cards, which Habib purported to cash for him. When Habib

berated Deronceler for the poor quality of his identification cards, Deronceler

brought Habib four fake cards, prepared by different suppliers, and asked Habib to

choose one. Deronceler also forged some signatures in Habib’s presence.

Deronceler boasted he would supply Habib with millions of dollars of fraudulent

checks. Habib and Deronceler ceased doing business in early 2014.

      In June 2014, just as Deronceler exited the picture, Pharr contacted Habib

seeking to cash checks. During their conversations, Habib asked why Pharr had

stopped cashing fraudulent checks, and she responded that “the volume was too

low so I just said forget it.” She told Habib she was “not doing it now” because

“the season [is] over anyway,” but that “come next year ... there’s a possibility I

could put something together.” She also promised Habib that she was “not dealing

with Stanley [Presendieu].”

      In July 2014 Pharr brought Habib several fraudulent U.S. Treasury checks,

which she told Habib she received from a friend who had “connections.” Pharr

also procured fake identification cards from a supplier who charged her $100 each,

and boasted that she had “a good team,” none of whom “like Stanley

[Presendieu].” Habib cashed those checks and another batch Pharr provided in

October 2014.


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      During their dealings in 2014 Habib and Pharr made plans to cash many

fraudulent checks during the upcoming 2015 tax refund season. Pharr told Habib

that business would “boom” in January so each of them could live “like a rock

star.” She also told Habib she had brought in a “partner” for next year.

      The FBI arrested Stanley Presendieu in January 2015. Habib did not hear

from Pharr thereafter.

B.    Procedural History
      Deronceler and Pharr were subsequently arrested. The Government issued a

41-count indictment alleging both Deronceler and Pharr were members of a larger

group – which also included Habib, Miles, Presendieu, Vila, and Jean – that

conspired to commit bank fraud and committed both bank fraud and aggravated

identity theft. Habib sought leniency and testified against his alleged co-

conspirators.

      Deronceler and Pharr were tried together in June 2016. Deronceler

represented himself until sentencing, while Pharr was represented by counsel. The

Government presented the evidence described above.

      Deronceler’s defense at trial was that he had an “evil twin” named Brian

Dehonslley who had committed the crimes. For her part, Pharr attacked Habib’s

credibility and argued someone else had stolen her identity and committed the

crimes.


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      The jury returned a verdict of guilty on all counts. Deronceler moved for a

Judgment of Acquittal, which the district court denied.

      A probation officer prepared a presentence report (PSR) for Deronceler

outlining his role in the conspiracy. Deronceler’s PSR initially included a criminal

history that, under the Guidelines, produced five criminal history points and put

him in criminal history category III. Deronceler objected to various aspects of his

PSR, and the Government filed its own objection. Deronceler’s PSR was

subsequently amended to include an additional crime, which brought his criminal

history score to seven points, corresponding to criminal history category IV.

      Deronceler’s PSR estimated that the conspiracy was responsible for a total

intended loss of $4,740,954.67, of which Deronceler was responsible for

$193,132.53. It also estimated Deronceler was responsible for more than 250

victims. Using these figures as inputs in the analysis mandated under § 2B1.1 of

the 2015 Guidelines, the PSR calculated a total offense level of 23. When used in

conjunction with his criminal history, the PSR calculated a Guidelines prison

sentence of 70 to 87 months for the bank fraud and conspiracy charges and an

additional sentence of two years, to be served after the initial sentence, for each of

the four aggravated identity theft charges, with the court to determine whether they

are to run consecutively or concurrently.




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      A probation officer also prepared a PSR for Pharr estimating that she was

responsible for an intended loss of $2,811,059.57 and 250 or more victims. These

figures included victims and financial losses caused by many of her co-

conspirators, including Presendieu, Vila, and Jean, because the probation officer

deemed them “reasonably foreseeable” aspects of Pharr’s participation in the

overall conspiracy. Pharr objected unsuccessfully to this part of her PSR. Using

these figures as inputs in the analysis mandated under § 2B1.1 of the 2014

Guidelines, the PSR calculated a total offense level of 35. It also reviewed her

criminal history, again pursuant to the Guidelines, assessing her four criminal

history points, which put her in criminal history category III. The PSR calculated a

Guidelines sentence range of 210 to 262 months imprisonment for the bank fraud.

It also calculated an additional sentence of two years, to be served after the initial

sentence, for each of the three aggravated identity theft charges, with the court to

determine whether they are to run consecutively or concurrently.

      At sentencing Deronceler sought a minor role reduction and a downward

sentence variance due to a claimed mental handicap. The district court declined

these requests, deemed him responsible for an intended loss of $109,378.23 and 10

or more victims, and sentenced him to 183 months in prison and restitution of

$109,378.23. Pharr successfully objected to the inclusion of two criminal history

points for committing offenses during probation, arguing she was not directly


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involved in the conspiracy during her probationary period. The district court

granted her the “benefit of the doubt” and accordingly reduced her criminal history

category to II and sentenced her to 259 months imprisonment and restitution of

$2,811,059.

                      II. COMMON ISSUE ON APPEAL

      Both defendants argue the prosecution failed to prove they were part of the

alleged conspiracy to commit bank fraud. Deronceler also appeals the denial of his

Rule 29 Motion for Judgment of Acquittal, which is functionally the same as a

challenge to the sufficiency of the evidence. United States v. Gamory, 635 F.3d

480, 497 (11th Cir. 2011).

      “We review both a challenge to the sufficiency of the evidence and the

denial of a Rule 29 motion for judgment of acquittal de novo.” Id. When doing so,

we “view the evidence in the light most favorable to the government, making all

reasonable inferences and credibility choices in the government's favor, and then

determine whether a reasonable jury could have found the defendant guilty beyond

a reasonable doubt.” Id. (internal quotation marks and citations omitted). We will

uphold the denial of a Rule 29 motion if we “determine that a reasonable fact-

finder could conclude that the evidence established the defendant's guilt beyond a

reasonable doubt.” Id. (internal quotation marks and citations omitted).




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        “To convict for a conspiracy to commit bank fraud, the government must

establish that (1) a conspiracy existed; (2) the defendant knew of it; and (3) the

defendant knowingly and voluntarily joined it.” United States v. Presendieu, 880

F.3d at 1240 (citations and internal quotation marks omitted); see 18 U.S.C. §

1349.

        Deronceler argues that the only evidence tying him to the conspiracy is

inadmissible hearsay, Br. at 24, an argument he also raises as an evidentiary

objection, which we address below. Br. at 37-38. For the reasons explained there,

this evidence was properly admissible. It is also sufficient to support the

conspiracy conviction: Habib testified that Deronceler introduced himself as the

“boss” of the operation who had been brought in to “get things going.” The

evidence also links Deronceler to Jean, who introduced him to Habib. That is itself

enough evidence to establish (1) an agreement and (2) his knowing and voluntary

participation in it.

        Pharr likewise objects to the sufficiency of the evidence tying her to a single

conspiracy, arguing there were if anything several separate conspiracies. She

argues she did not know all of the other conspirators and worked separately from

them. Pharr argues that under United States v. Ellis, 709 F.2d 688, 690 (1983), a

single “hub and spoke” conspiracy cannot be proven if the spokes did not know

each other and acted separately.


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      Our law on this question is clear. “[I]f the evidence showed one large

conspiracy with [a defendant] as the hub, the three appellants as the spokes, and

some interaction between [them] to provide the rim, then the defendants could

have been joined in one indictment.” Ellis, 709 F.2d at 689-90. “We will not

reverse a conviction because a single conspiracy is charged in the indictment while

multiple conspiracies may have been revealed at trial unless the variance is

material and substantially prejudiced the defendant.” United States v. Edouard,

485 F.3d 1324, 1347 (11th Cir. 2007) (internal quotation marks and citations

omitted). If the variance is not material, then “we will not disturb the jury’s

verdict” where “the government presented evidence sufficient to establish a

common goal, underlying scheme, and overlap in participation.” Richardson, 532

F.3d at 1286.

      Drawing all inferences in favor of the Government, Gamory, 635 F.3d at

497, we conclude the Government properly charged a single conspiracy and

presented evidence sufficient to establish a common goal, underlying scheme, and

overlapping participation. Whether one conspiracy or several, each co-conspirator

had the same goal, cashing fraudulent checks. The evidence also indicates a

common underlying scheme: both Deronceler and Presendieu described

themselves as supervisors, suggesting both a larger organization and a hierarchy

within it. There is ample evidence of overlapping participation, both in the chain


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of introductions to Habib and in their actual dealings, including Presendieu’s use of

checks payable to two clients of Pharr’s tax service, M.C. and J.S., and Pharr’s

agreement to compensate Habib for losses he sustained when dealing with

Presendieu.

                   III.   ISSUES RAISED ONLY BY PHARR

      Pharr alone raises two separate issues. She argues the district court abused

its discretion, first when it denied her request for a jury instruction concerning the

affirmative defense of entrapment, and second by including in its sentencing

calculations certain financial losses and victims attributable to co-conspirators.

A.    Entrapment Defense
      “An affirmative defense of entrapment requires two elements: (1)

government inducement of the crime; and (2) lack of predisposition on the part of

the defendant.” United States v. Sistrunk, 622 F.3d 1328, 1333 (11th Cir. 2010).

“To raise an entrapment defense, a defendant must prove more than that the

government first solicited him or merely provided the opportunity for the crime.”

Id. (internal quotation marks and citations omitted). Rather, the defendant must

show “some evidence,” meaning “more than a scintilla,” United States v. Alston,

895 F.2d 1362, 1367 (11th Cir. 1990), of Government “persuasion or mild

coercion” to commit the crime, Sistrunk, 622 F.3d at 1333 (citation omitted). We

apply a burden-shifting framework in which “the defendant bears the initial burden


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of production as to government inducement,” which, if met, then shifts “to the

government to prove beyond a reasonable doubt that the defendant was

predisposed to commit the crime.” United States v. Ryan, 289 F.3d 1339, 1343

(11th Cir. 2002).

      This court reviews the denial of a requested jury instruction for an abuse of

discretion. United States v. Hill, 799 F.3d 1318, 1320 (11th Cir. 2015); United

States v. Ryan, 289 F.3d 1339, 1343 (11th Cir. 2002). We have not yet had

occasion to clarify whether that standard or the de novo standard applies to an

appeal challenging the denial of a requested jury instruction on entrapment. See

Sistrunk, 622 F.3d at 1332-33. As explained further below, we need not resolve

the question here because the result would be the same under either standard.

      Pharr argues the evidence presented at trial provides enough evidence of

entrapment to create a jury issue. She notes three items in particular. First, she

argues Habib, acting as the Government’s confidential informant, pursued her by

returning her phone calls and by telling her he could help her. Second, she argues

Habib “admitted, on the stand, that he did not follow the rules” when speaking

with her. Br. at 13. Third, she argues, without any citation, that Habib failed to

record two minutes of a particular conversation. She argues “[a] jury could have

found that Ms. Pharr was no longer interested in pursuing [fraudulent] checks, was

only calling Mr. Habib to assist her with a valid check, and was entrapped by Mr.


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Habib into committing further crimes.” Br. at 13-14. The Government vigorously

disputes these points.

      Regardless whether Pharr has shown government persuasion or mild

coercion, which is doubtful, her effort fails because the government can easily

meet its burden of showing she was an “unwary criminal” predisposed to commit

the charged crime. For example, Pharr produced and cashed fraudulent checks –

both herself and in concert with other co-conspirators – before the 2014 events of

which she complains and before Habib became an informant. Although this

activity ceased for a time, the evidence suggests that was because of the seasonal

nature of the tax fraud scheme rather than a sudden change of heart. There is also

evidence she purchased and used fake identification cards. We have found similar

facts sufficient to establish predisposition. See, e.g., United States v. Rutgerson,

822 F.3d 1223, 1235-36 (11th Cir. 2016) (predisposition to solicit a minor); United

States v. Aibejeris, 28 F.3d 97, 99 (11th Cir. 1994) (predisposition to launder

money). Therefore, the district court did not err in refusing to give an entrapment

instruction because on this record no reasonable juror “could entertain a reasonable

doubt about whether [Pharr] was entrapped.” United States v. Alston, 895 F.2d

1362, 1367 (11th Cir. 1990).




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      This result is the same whether we review the denial of this instruction for

an abuse of discretion or de novo. Therefore we leave for another day the selection

of the appropriate standard of review.

B.    Pharr’s Sentence
      When sentencing Pharr, the district court included financial losses and

victims caused by her co-conspirators. Pharr challenges the inclusion of these

sums, arguing that she was personally responsible for “roughly 100 victims,” not

the 250 for which she was sentenced, and $256,000 in financial losses, not

approximately $2.8 million. Br. at 14-15. Echoing her appeal concerning the

sufficiency of the evidence, she argues she was not part of a single, large

conspiracy and therefore should not be sentenced on the basis of all the losses it

generated. If the court counted only the losses she personally caused, she asserts

the U.S. Sentencing Guidelines would have called for a sixteen level sentencing

enhancement (twelve levels for the financial sum and four levels for the number of

victims) rather than the twenty-four level enhancement (consisting of eighteen and

six levels, respectively) she received. Br. at 17.

      While Pharr’s appeal was pending, this court decided an appeal lodged by

two of her co-conspirators, Presendieu and Jean. Jean appealed, inter alia, the

inclusion of victims and financial losses associated with Pharr in Jean’s Guidelines

sentence range. We concluded that at sentencing the relevant conduct of other co-


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conspirators is limited to “jointly undertaken criminal activity,” which may be

narrower than the totality of the conspiracy. Presendieu, 880 F.3d at 1245-46.

Applying this principle, we held that, “[b]ecause no evidence supports the

determination that Pharr’s activity in June to October 2014 was within the scope of

Jean’s jointly undertaken criminal activity, the district court clearly erred in

holding Jean responsible for the approximately $84,000 of loss incurred as a result

of Pharr’s independent check-cashing activity.” Id. We therefore vacated Jean’s

sentence and remanded the case to the district court for resentencing after

recalculating the loss attributable to Jean. Id. at 1246.

      Jean’s appeal concerned only the proper loss amount, but the clear error

standard applies both to “the District Court's calculation of the number of victims,”

United States v. Rodriguez, 732 F.3d 1299, 1305 (11th Cir. 2013), and to the loss

attributable to the defendant, including “losses resulting from the reasonably

foreseeable acts of co-conspirators in furtherance of the conspiracy.” United States

v. Rodriguez, 751 F.3d 1244, 1256 (11th Cir. 2014). Having already concluded in

Presendieu that it was clear error for a district court to include losses associated

with Pharr’s 2014 activities when sentencing Jean, we similarly conclude that it

was clear error to include both losses and victims associated with Jean when

sentencing Pharr. The record is devoid of any evidence directly connecting the




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two defendants, so their respective crimes are not “jointly undertaken criminal

activity” within the meaning of § 1B1.3 of the Guidelines.

      We therefore vacate Pharr’s sentence and remand her case to the district

court for resentencing. In addition to excluding victims and losses associated with

Jean’s criminal activity, the district court should exclude from its calculations

financial losses and victims associated with the activity of any other co-conspirator

who is not connected to Pharr by any evidence.

      In vacating, we reject the Government’s assertion that any error is harmless

because the district court said it would have imposed the same sentence “under any

circumstances.” Br. 66-67. What this argument overlooks is that if Pharr received

a lesser enhancement under the Guidelines, then her resulting sentence range

would be lower, and the sentence imposed would exceed the range recommended

by the Guidelines. “We ordinarily expect a sentence within the Guidelines range

to be reasonable,” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.

2008), but not when, as here, the present sentence would exceed the recommended

range if the sentence were recalculated using the revised figures. Because the

sentence does not appear to be reasonable in light of Presendieu and because the

record is bereft of any rationale for departing upward from the Guidelines range,

the sentence must be vacated. See, e.g., United States v. Livesay, 525 F.3d 1081,

1094 (11th Cir. 2008).


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              IV.    ISSUES RAISED ONLY BY DERONCELER

      Deronceler separately raises four issues. First, he challenges the sufficiency

of the evidence supporting his conviction for two offenses, bank fraud and

aggravated identity theft. Second, he appeals the district court’s denial of various

evidentiary objections he made at trial. Third, he argues the prosecutor engaged in

misconduct. Fourth, he challenges three aspects of his sentence.

A.    Sufficiency of the Evidence
      Deronceler challenges both the sufficiency of the evidence supporting his

convictions for bank fraud and aggravated identity theft and the district court’s

denial of his motion for Judgment of Acquittal. As noted above, we review both

issues de novo. Gamory, 635 F.3d at 497. “The test for sufficiency of the

evidence is identical, regardless of whether the evidence is direct or circumstantial,

but if the government relied on circumstantial evidence, reasonable inferences, not

mere speculation, must support the conviction.” United States v. Martin, 803 F.3d

581, 587-88 (11th Cir. 2015) (internal citations and quotation marks omitted).

      1.     Bank fraud

      Deronceler argues the Government failed to establish two elements of bank

fraud (Counts 17-20). In order to convict for this offense, “the government must

prove (1) that a scheme existed to obtain moneys, funds, or credit in the custody of

a federally-insured bank by fraud; (2) that the defendant participated in the scheme


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by means of material false pretenses, representations or promises; and (3) that the

defendant acted knowingly.” Presendieu, 880 F.3d at 1240 (citations and internal

quotation marks omitted); see 18 U.S.C. § 1344.

      Deronceler argues the Government failed to prove he had the specific intent

to commit bank fraud because “none of the government’s witnesses could testify

about [his] knowledge or intent.” Br. at 27-29. He also argues the Government

failed to prove he had the intent to “defraud a financial institution,” although the

Government may, as he acknowledges, use circumstantial evidence to prove its

case. Id. at 28. The Government in response points to the following evidence: (1)

recorded meetings during which Deronceler cashed checks payable to other

persons; (2) Habib’s testimony that Deronceler forged signatures for these checks

in his presence, and in at least one case during a recorded meeting; and (3) a

recorded discussion in which he promised co-conspirator Habib that he would get a

better manufacturer of fake identification documents.

      This evidence is sufficient to establish that Deronceler acted knowingly.

There is ample evidence that Deronceler commissioned the production of false

identification cards, which he then used to cash checks payable to others, and that

he forged payee signatures when endorsing some of these checks.

      We also find the evidence sufficient to establish that Deronceler knowingly

defrauded a federally-insured bank. Neither defendant objected to the


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Government’s certification that the institutions involved – Bank of America,

SunTrust, Citizens Bank, UMB Bank, and Ohio Valley Bank – “are FDIC banks.”

By cashing checks purportedly issued by or cleared through these institutions,

Deronceler knowingly defrauded them.

      2.     Aggravated identity theft

      Deronceler also argues the Government failed to establish he knowingly

committed aggravated identity theft (Counts 38-41). Br. at 29. He argues that,

because the victims who testified “confirmed that [they] did not know Deronceler”

and “could not say that Deronceler stole [their] identit[ies],” there is “no evidence

or testimony” that he knew any identities were fake or used them without proper

authority. Id.

      “To convict for aggravated identity theft, the government must prove that

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 felony enumerated in 18 U.S.C. § 1028A.” Presendieu, 880 F.3d at

1240 (citations and internal quotations omitted). Bank fraud is one of the felony

offenses enumerated in the relevant statute. See 18 U.S.C. § 1028A(c)(5).

      We find the evidence in the record sufficient to establish the requisite

knowledge. Habib testified that Deronceler forged check endorsements in his

presence and offered several variants of identification cards he knew to be


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fraudulent. Although Deronceler may challenge Habib’s credibility, we “view the

evidence in the light most favorable to the government, making all reasonable

inferences and credibility choices in the government's favor.” Gamory, 635 F.3d at

497. We therefore credit Habib’s testimony and find it sufficient to establish that

Deronceler committed aggravated identity theft.

B.    Evidentiary Rulings
      Deronceler objects to various evidentiary rulings, which we group into three

categories: those challenging (1) relevance; (2) the scope of witness examinations;

and (3) alleged hearsay.

      This court “review[s] a district court’s evidentiary rulings for abuse of

discretion”; in doing so we evaluate preserved evidentiary objections for material,

that is, non-harmless error and objections first raised on appeal “for plain error

only.” United States v. Baker, 432 F.3d 1189, 1202 (11th Cir. 2005). During this

review, we bear in mind that “[t]he district court has broad discretion to determine

the relevance and admissibility of any given piece of evidence.” United States v.

Merrill, 513 F.3d 1293, 1301 (11th Cir. 2008).

      1.     Relevance objections

      Deronceler objected at trial to the relevance of various exhibits and

testimony offered by the Government regarding his co-conspirators and a victim.

He argues the evidence was more prejudicial than probative. Br. at 35. The


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Government responds that the challenged evidence was relevant to prove the

existence of the charged conspiracy, to explain the meaning of the word “stats” (a

term referring to U.S. Treasury checks, which appears in other evidence), to

establish the credibility of witness Habib, and to establish that the co-conspirators

used fraudulent identification documents. Br. at 46-48. Because Deronceler

registered his objection at trial, we review the district court’s admission of the

evidence for material error. Baker, 432 F.3d at 1202.

      Deronceler’s relevance objections fail under this standard of review.

Proving the existence and scope of the conspiracy was clearly relevant to the

conspiracy offenses with which he was charged. For example, the introduction of

the testimony concerning Deronceler’s use of fraudulent identification documents

is relevant to all three of his charges, aggravated identity theft, bank fraud, and

conspiracy to commit bank fraud. Evidence explaining the meaning of the term

“stats” is similarly relevant to understanding how the conspiracy worked.

      2.     Scope of witness examination

      Deronceler also appeals two restrictions the district court placed upon his

examination of witnesses. First, Deronceler argues the district court abused its

discretion by restricting his cross examination of witness A.S., a victim of the

conspiracy. Br. at 36. He does not explain what the district court restricted him

from doing or how it prejudiced him. As a result, there is nothing for us to review.


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      Second, Deronceler appeals a ruling barring him from asking his sister

Ileene Deronceler about her memory on direct examination. Br. at 37. As

Deronceler himself notes, however, the judge reconsidered his ruling and advised

Deronceler he could ask those questions. Deronceler argues he failed to follow up

because he was confused. Yet, as the Government points out, Deronceler then

asked several questions and later affirmed that he did not have any further

questions to ask. Having prevailed on the issue before the district court and asked

all the questions he wished, there is again nothing for us to review on appeal.

      3.     Hearsay objections

      Deronceler appeals various evidentiary rulings he labels hearsay objections.

None has any merit.

      First, Deronceler objected to the introduction of several self-authenticated

documents, arguing the Government failed to authenticate them by eliciting

testimony. Br. at 37. The documents in question are bank records which, as self-

authenticating documents, are hearsay-excepted. See FED. R. EVID. 803(b); United

States v. Naranjo, 634 F.3d 1198, 1213-14 (11th Cir. 2011). As such, the

documents were properly admitted into evidence.

      Second, Deronceler objects to statements that Habib testified had been made

by Presendieu concerning the conspirators’ use of false identification cards. Br. at

38-39. According to Habib, Presendieu made the statements to induce Habib to


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continue cashing checks provided to him by Presendieu or a co-conspirator. An out

of court statement is not inadmissible hearsay if it “was made by the party’s co-

conspirator during and in furtherance of the conspiracy.” FED. R. EVID.

801(d)(2)(E). 1

       Deronceler also argues Habib’s testimony violates his right under the

Confrontation Clause of the Sixth Amendment to the Constitution of the United

States to confront the witnesses against him. The statement in question was made

by the defendant’s co-conspirator in furtherance of the conspiracy. Under these

circumstances, we have held the Sixth Amendment does not bar its admission. See

United States v. Underwood, 446 F.3d 1340, 1347-48 (11th Cir. 2006); United

States v. Cross, 928 F.2d 1030, 1051-52 (11th Cir. 1991).

       Third, Deronceler argues testimony of a federal agent, Degnan, identifying

the name of the tax preparation company used by another co-conspirator, is

inadmissible hearsay. Br. at 38-39. Because the challenged statement was made in

court and apparently based upon the witness’s personal knowledge, it is not

hearsay.




1
 Deronceler objects for the first time in his reply brief that the same evidence was more
prejudicial than probative. Reply Br. at 10. “Arguments raised for the first time in a reply brief
are not properly before a reviewing court,” United States v. Evans, 473 F.3d 1115, 1120 (11th
Cir. 2016), and even if it were properly before us, the district court did not clearly err by
concluding the statements of a co-conspirator was more probative than prejudicial.
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C.    Prosecutorial Misconduct
      Deronceler argues the prosecutor engaged in misconduct during her closing

arguments by playing upon the sympathy of the jury. In particular, Deronceler

objects to the prosecutor’s exhortation that the jury should “speak ... the truth”

when rendering their verdict. Deronceler contends this statement denied him a

right to a fair trial, requiring this court to grant habeas corpus and vacate his

conviction. Br. at 41. The Government responds that the comment was not

prejudicial when viewed in context and quotes the entire closing argument. Br. at

54-58. The pertinent part reads: “[L]adies and gentlemen, when your work begins,

I submit that your verdict should, as the word means, speak – [Deronceler

interjects: “Innocent”] – the truth. Speak it for [four named victims]. And all of

the witnesses whose testimony you have heard, return verdicts of guilty as

charged.”

      This court reviews a claim of prosecutorial misconduct de novo. United

States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006). “[T]he defendant must

show a reasonable probability that, but for the prosecutor's statements, the result of

the proceeding would have been different.” Davis v. Zant, 36 F.3d 1538, 1545

(11th Cir. 1994). The court considers four factors:

      1) the degree to which the challenged remarks have a tendency to mislead

      the jury and to prejudice the accused; 2) whether they are isolated or


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      extensive; 3) whether they were deliberately or accidentally placed before

      the jury; and 4) the strength of the competent proof to establish the guilt of

      the accused.

Id. at 1546.

      Applying these four factors, the closing argument does not constitute

prosecutorial misconduct. Starting with factor one, telling the jury that the word

“verdict” means “to speak the truth,” and then asking the jury to “speak the truth”

for the alleged victims of the conspiracy, hardly misled the jury or prejudiced the

outcome in this particular case. As one of our sister circuits has held, using the

phrase “to speak the truth” and thereby “asking the jury to deliver an honest verdict

is proper.” United States v. Jones, 674 F.3d 88, 93 (1st Cir. 2012). Under the

second factor, Deronceler complains about a single isolated event, not a pattern of

conduct. The comment was deliberately placed before the jury (factor 3), but the

strength of the evidence against Deronceler is strong (factor 4). Therefore we

conclude there was no misconduct during the prosecutor’s closing remarks.

D.    Deronceler’s Sentence
      Deronceler challenges four aspects of his sentencing. “[T]he district court's

interpretation of the sentencing guidelines is subject to de novo review on appeal,

while its factual findings must be accepted unless clearly erroneous.” United States

v. Ellis, 419 F.3d 1189, 1192 (11th Cir. 2005) (internal quotations and citations


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omitted). As explained above concerning Pharr’s challenge, however, the

reasonableness of a sentence is reviewed for an abuse of discretion. Gall, 552 U.S.

at 51.

         1.    Criminal history category

         Deronceler argues the district court clearly erred by incorrectly transcribing

his criminal history level as category IV, not category III, resulting in a longer

sentence. As he notes, his initial PSR reflected five criminal history points, which

under the Sentencing Guidelines establish a criminal history category of III.

U.S.S.G. ch. 5, pt. A. He fails to mention, however, that his PSR was amended

before sentencing to include a direct criminal contempt of court offense worth two

points, thereby increasing his score to seven criminal history points and a

corresponding criminal history category of IV. Therefore, the court did not err, let

alone clearly err, by assigning him a criminal history category of IV.

         2.    Minor role reduction

         Deronceler also appeals the district court’s denial of his request for a

reduction under the Guidelines for being “a minor participant in any criminal

activity.” U.S.S.G. § 3B1.2(b). The comments to the U.S. Sentencing Guidelines

explain this classification is available to defendants who are “less culpable than

most other participants, but whose role could not be described as minimal.”




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U.S.S.G. § 3B1.2(b), cmt. 5. The Guidelines prescribe a two-level decrease in the

defendant’s adjusted offense level if he was a minor participant. U.S.S.G. § 3B1.2.

      This court has identified two salient principles. First, “the district court must

measure the defendant's role against the relevant conduct for which she was held

accountable at sentencing,” which “in many cases ... will be dispositive.” United

States v. DeVaron, 175 F.3d 930, 945 (11th Cir. 1999) (en banc). Second, if the

first principle is not dispositive, then “the district court may also measure the

defendant's role against the other participants, to the extent that they are

discernable, in that relevant conduct.” Id. The district court’s determination

whether the defendant qualifies for a minor role reduction is a finding of fact we

review for clear error. Id. at 937.

      In denying his request, the district court noted Deronceler had described

himself to Habib as the “boss” of the conspiracy, had met Habib to “straighten

things out,” and had cashed fraudulent checks for several years. The district court

did not compare Deronceler’s culpability to that of other conspirators.

      Deronceler challenges two aspects of the district court’s decision. First,

Deronceler argues he is less responsible than other conspirators, so the district

court erred by denying his request. Br. at 47-48. As explained above, DeVaron

does not require the district court to consider the defendant’s responsibility relative

to other conspirators, so it did not err by declining to do so. Second, Deronceler


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argues the district court erred in its assessment of the first principle, evaluating his

role in absolute terms. Deronceler argues “he was not an organizer or manager,”

“his actual benefit ... was minimal at best,” and “there is no evidence that he ...

even knew the extent of the conspiracy.” Br. at 45. He argues that these principles

apply equally under the Guidelines in effect at the time of sentencing and those in

effect today, which include an expanded note suggesting five factors that

Deronceler tracks.

      The evidence upon which the district court based its decision is enough to

support the district court’s finding that Deronceler played more than a minor role

in the operation. Therefore the district court did not err in denying Deronceler’s

motion for a minor role reduction.

      3.     Deronceler’s motion for a downward departure

      Deronceler also appeals the denial of his motion for a downward departure

in his sentence. He advanced three separate reasons for receiving a downward

departure: a mental illness, a significantly diminished mental capacity, and a

criminal history category that over-represents the seriousness of his prior crimes.

      The denial of a downward departure request is not reviewable unless the

district court “erroneous[ly] belie[ved] it lacked the authority to grant one.” United

States v. Ortega, 358 F.3d 1278, 1279 (11th Cir. 2003). There is no indication the




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district court believed it lacked the authority to grant a downward departure, so the

district court’s decision is not reviewable.

      4.     Deronceler’s motion for a sentence variance

      Finally, Deronceler appeals the denial of his request for a sentence variance,

citing the same reasons he provided when seeking a downward departure. He

argues his diminished mental capacity is demonstrated by his previous belief that

“he could represent himself at the trial.” Br. at 51; see id. at 54. He also renews

the argument that a transcription error in his PSR resulted in his criminal history

being over-represented. Br. at 51.

      Reviewing this request “under a deferential abuse-of-discretion standard,”

United States v. Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008), we see no cause

for reversal here: Deronceler was found competent to stand trial and the district

judge later concluded he “ha[s] no reason to believe [the] finding [of] competency

is not correct.” Br. at 50. Nor do we find any abuse of discretion in the district

court’s decision to credit the revised PSR and account for an additional conviction

worth two criminal history points. Because Deronceler’s 183-month sentence does

not appear to “lie[] outside the range of reasonable sentences dictated by the facts

of the case,” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007), we

conclude that the denial of his motion for a variance did not make his sentence

substantively unreasonable.


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                               V.    CONCLUSION

      In summary, we affirm all the appellants’ convictions but vacate Pharr’s

sentence and remand her case to the district court for resentencing. Consistent

with our judgment in United States v. Presendieu, the district court may not

consider victims or financial losses attributable to co-conspirators, such as Jean,

that are not also causally connected to Pharr.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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