                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4916


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANTONIO DONEIL LEE,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00242-TDS-1)


Argued:   January 25, 2011                 Decided:   March 21, 2011


Before KING, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Harry L. Hobgood, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellant.    James Darren Byers,
LAW OFFICE OF J. DARREN BYERS, PA, Winston-Salem, North
Carolina, for Appellee.    ON BRIEF: Anna Mills Wagoner, United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Antonio Doneil Lee pled guilty to bank fraud (Count One),

in violation of 18 U.S.C. § 1344(2), and was found guilty, after

a   bench    trial,       of    aggravated         identity      theft    (Count   Two),    in

violation      of    18       U.S.C.     §    1028A(a)(1).          The    district      court

sentenced Lee to forty-eight months imprisonment on Count One in

addition      to     a    statutorily          mandated      consecutive        sentence    of

twenty-four months on Count Two.                        Lee appeals his conviction for

Count Two and challenges the amount of loss attributed to Count

One at sentencing.              Finding no error, we affirm the judgment of

the district court.



                                                   I.

      Lee argues the district court improperly denied his motion

for judgment of acquittal on Count Two.                           We review de novo the

district court’s denial of a motion for judgment of acquittal.

United      States       v.    Green,    599       F.3d   360,   367     (4th   Cir.   2010).

“[A]ppellate reversal on grounds of insufficient evidence . . .

will be confined to cases where the prosecution’s failure is

clear.”       Burks v. United States, 437 U.S. 1, 17 (1978).                                The

verdict     will     be       affirmed       if,   when    viewed   in    the    light     most

favorable to the government, there is substantial evidence to

support it.          United States v. Alerre, 430 F.3d 681, 693 (4th

Cir. 2005).         Substantial evidence is defined as evidence that a

                                                   2
“‘reasonable        finder    of     fact     could    accept        as   adequate      and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.’”              Green, 599 F.3d at 367 (quoting United

States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)).

       18 U.S.C. § 1028A(a)(1), the statute charged in Count Two,

imposes     a     mandatory        two-year       consecutive        sentence     on     an

individual who “knowingly transfers, possesses, or uses, without

lawful authority, a means of identification of another person”

during or in relation to the commission of certain enumerated

felonies.       In Flores-Figueroa v. United States, 556 U.S. ----,

129    S.   Ct.   1886     (2009),     the       Supreme   Court      held    that     this

language requires the Government to “show that the defendant

knew   that     the   means    of    identification        at    issue       belonged    to

another person.”           Flores-Figueroa, 129 S. Ct. at 1894.                         Lee

argues the Government failed to offer sufficient evidence to

prove that he knew that the identification documents he used to

cash   altered      checks    actually       belonged      to    a   real    person,     as

required by the Supreme Court in Flores-Figueroa.

       The Flores-Figueroa standard may impose a difficult burden

on the Government in proving the elements of § 1028A(a)(1) in

certain     cases     of   identity    theft.         As   the   Ninth       Circuit    has

noted,      however,       requiring        proof     of   knowledge          “that     the

identification document belonged to another person . . . . is

not an insurmountable burden, especially in a case where the

                                             3
identification document contains someone else’s photo and does

not appear to be a fake.”      United States v. Miranda-Lopez, 532

F.3d 1034, 1040 (9th Cir. 2008). 1       This observation properly

reflects that circumstantial evidence can be fully sufficient

for purposes of sustaining a conviction under a sufficiency of

the evidence review.     See United States v. Tresvant, 677 F.2d

1018, 1021 (4th Cir. 1982) (“We must consider circumstantial as

well as direct evidence, and allow the government the benefit of

all reasonable inferences from the facts proven to those sought

to be established.”).     Thus, circumstantial evidence supporting

a   reasonable    inference   of   knowledge   that   the   means    of

identification belonged to another person will be sufficient to

sustain a conviction under 18 U.S.C. § 1028A(a)(1).

     After reviewing the record, we conclude that the evidence

was sufficient to support Lee’s conviction on Count Two.            That

evidence established that the Social Security and North Carolina

identification cards used by Lee were both genuine in fact and

appearance.      In particular, the North Carolina identification

card used to cash the altered check bore two images of the

card’s actual owner in addition to a series of complex holograms

     1
        Although issued prior to Flores-Figueroa, the Ninth
Circuit’s decision in Miranda-Lopez, by requiring proof of
knowledge that the identification belonged to another person,
was consistent with the Supreme Court’s later ruling on the
meaning of § 1028(A)(a)(1).



                                   4
not   found   on   counterfeit    versions.           Additionally,     the    North

Carolina identification card “contains someone else’s photo and

does not appear to be a fake.”           Miranda-Lopez, 532 F.3d at 1040.

Furthermore, the record shows that Lee’s modus operandi was to

use genuine identification documents when he or his accomplices

cashed   altered    checks.       This       evidence,    a    consistent      modus

operandi      combined    with   the         cards’    factual    and    apparent

genuineness, was sufficient for a reasonable finder of fact to

conclude that Lee had knowledge that the identification belonged

to an actual person.

      Accordingly, we conclude that the district court did not

err in denying Lee’s motion for acquittal.                We therefore        affirm

Lee’s    conviction      under   Count       Two   for   violating      U.S.C.     §

1028A(a)(1).



                                    II.

      The other issue raised by Lee is whether the district court

erred in its determination of the amount of loss attributable to

him for sentencing purposes under Count One.                  Lee challenges the

district court’s finding at sentencing that a $20,000 check,

found in his car at the time of his arrest, was part of the




                                         5
“same common scheme or plan” as the charged conduct. 2                     We review

factual findings made at sentencing for clear error.                          United

States v. Pauley, 289 F.3d 254, 258 (4th Cir. 2002).

      “The sentencing guidelines establish that certain relevant

conduct may be considered in determining the guidelines range

for a criminal defendant.”              United States v. Hodge, 354 F.3d

305, 312 (4th Cir. 2004).          Conduct that is a “part of the same

course of conduct or common scheme or plan as the offense of

conviction”      is   considered        relevant     under      the       guidelines.

U.S.S.G. § 1B1.3(a)(2).           Several factors are considered when

determining     whether    uncharged      conduct       is   part   of     “the   same

course    of   conduct    or   common   scheme     or    plan,”     including     “the

nature of the defendant’s acts, his role, and the number and

frequency of repetitions of those acts.”                     Pauley, 289 F.3d at

259   (quotation      omitted).          Additionally,        we      evaluate     the

“similarity,      regularity     and    temporal        proximity      between     the

offense of conviction and the uncharged conduct.”                   Id.

      The district court did not err in finding that the $20,000

check was part of a “common scheme or plan” with the charged

conduct.       Like the more than forty stolen checks successfully

cashed by Lee, the record reflects that the $20,000 check had

      2
       The district court’s finding as to the $20,000 check had
the effect of raising Lee’s offense level under the sentencing
guidelines from fourteen to sixteen.



                                         6
also been stolen and chemically washed to remove the original

payee’s name.      This is strong evidence that Lee’s role, purpose,

and modus operandi were substantially the same with respect to

the $20,000 check as with the successfully cashed checks.                          Lee’s

attempt to distinguish this $20,000 check by emphasizing that it

was   a   pre-printed       business   check   rather   than    a   hand-written

personal check is unpersuasive. 3              The district court properly

considered the relevant factors under United States v. Pauley

and correctly concluded that the $20,000 check was part of a

“common     scheme     or     plan”    pursuant    to   U.S.S.G.          §    1B1.3.

Accordingly,      we   affirm    the   sentence   imposed      by   the       district

court.

                                       III.

      For   the      aforementioned     reasons,    the     judgment          of    the

district court is

                                                                          AFFIRMED.

      3
       We also reject Lee’s arguments that the check be excluded
from the loss calculations because it was severely damaged and
he had never tried to cash it.        The Sentencing Guidelines
provide that the amount of loss for determining sentencing
enhancements is the greater of the actual or intended loss.
U.S.S.G. § 2B1.1 cmt. n. 3(A) (2008).   Intended loss is defined
as “the pecuniary harm that was intended to result from the
offense . . . and . . . includes intended pecuniary harm that
would have been impossible or unlikely to occur.”      Id. at §
2B1.1 cmt. n. 3(A)(ii). We think that Lee’s alterations to and
retention of the check, in conjunction with his well-established
modus operandi, provided the district court with ample evidence
to conclude that it was an intended loss under the check cashing
scheme.


                                         7
