                Case: 17-10639       Date Filed: 04/18/2018       Page: 1 of 38


                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 17-10639
                               ________________________

                      D.C. Docket No. 1:13-cr-00441-TCB-CMS-1



UNITED STATES OF AMERICA,

                                                                          Plaintiff - Appellee,
                                             versus

QADIR SHABAZZ,
a.k.a. Deangelo Moore,
a.k.a. Deangelo Muhammad,
                                                                        Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                             _______________________

                                       (April 18, 2018)

Before WILLIAM PRYOR, JULIE CARNES, Circuit Judges, and CORRIGAN, *
District Judge.

WILLIAM PRYOR, Circuit Judge:



*
  Honorable Timothy J. Corrigan, United States District Judge for the Middle District of Florida,
sitting by designation.
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      Qadir Shabazz orchestrated a multi-state tax-fraud scheme using Indigent

Inmate, a prisoner “charity” he founded and financed. Prisoners interested in

receiving financial support, religious materials, and other assistance items

completed applications that required them to provide personal identifying

information. Shabazz and his associates then used that information to submit

fraudulent tax returns and collect fraudulent tax refunds. This appeal requires us to

decide several questions about Shabazz’s convictions and sentence for conspiracy,

wire fraud, aggravated identity theft, and theft of government funds: (1) whether

the district court clearly erred when it admitted evidence seized from Shabazz’s

clothing during the execution of a search warrant as well as Shabazz’s post-arrest

statements; (2) whether the district court abused its discretion when it admitted

evidence of uncharged conduct and photographs of Shabazz and his wife with

large sums of money; (3) whether the district court violated Shabazz’s right not to

wear jail clothes after he waived his right to appear in street clothes; (4) whether

the district court erred when it instructed the jury about conspirator liability under

Pinkerton v. United States, 328 U.S. 640 (1946); (5) whether sufficient evidence

supports Shabazz’s convictions for conspiracy and aggravated identity theft; and

(6) whether the district court erred when it calculated Shabazz’s Sentencing

Guidelines range or imposed a substantively unreasonable sentence. We affirm

Shabazz’s convictions and sentence.



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                                I. BACKGROUND

      From 2009 to 2012, Qadir Shabazz used Indigent Inmate, a “charity” he

founded and financed, to defraud prisoners throughout the country. According to

the “Member Handbook,” the nonprofit served “to aid and assist those who are

incarcerated” by “provid[ing] inspirational literature, news paper [sic]

subscriptions and financial assistance to those in need.” But the evidence at trial

established that the nonprofit instead served to enrich Shabazz and his associates at

the expense of inmates seeking assistance.

      Employees of Indigent Inmate mailed prisoners applications that requested

their personal identifying information, including their social security numbers and

dates of birth. One employee of Indigent Inmate testified that she marked

applications “disqualified” if they indicated that applicants had student loans, owed

child support, or listed an incorrect Social Security number or booking number.

Members of the conspiracy then used the personal identifying information to file

fraudulent income tax returns seeking tax refunds. And they formed corporations

in the names of applicants to allow the conspirators to access the funds. For

example, Shabazz or one of his coconspirators created a corporation in the name of

William Malone, Inc., created a William Malone, Inc., account, deposited a

fraudulently obtained refund check issued to William Malone, an Indigent Inmate

applicant, into that account, and wrote a check drawn on that account to Shabazz.



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Investigators also found a debit card for the account in Shabazz’s wallet. Similarly,

a corporation was created in the name of another Indigent Inmate applicant, Sandra

Oyawusi, and investigators found a debit card for that account in another one of

Shabazz’s wallets.

      Shabazz professed to have four wives—at least two of whom helped him

with the day-to-day operations—but Shabazz was in charge of Indigent Inmate.

For example, forms filed with the Georgia Secretary of State listed Leslie Scott—

also known as Leslie Shabazz—as the CEO and registered agent of the company.

And Sheena Shabazz directly managed some, if not all, of the employees. But

Qadir Shabazz rented the office space, hired employees, paid the employees, and

held himself out as the president.

      The investigation of the scheme began in Pennsylvania. Agents from the

Pennsylvania Attorney General’s Office and Pennsylvania Bureau of Revenue

began investigating fraudulent state tax returns that listed 2615 Brownsville Road,

Pittsburgh, Pennsylvania, as the taxpayer address. The agents discovered that one

of Shabazz’s associates, Dion McBride, was involved in a prisoner tax-fraud

scheme, and McBride later informed the agents that Shabazz was responsible for

that scheme.

      After further investigation, the agents obtained search warrants for a

residence at 2864 Cheney Street, East Point, Georgia and the Indigent Inmate



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headquarters at 1677 Dorsey Avenue, East Point, Georgia. To establish probable

cause, the search-warrant affidavit detailed evidence of the involvement of

Shabazz and his wives. That evidence included not only McBride’s statements, but

also bank records, phone records, and surveillance records.

      Shabazz and Leslie Shabazz were present at the Cheney Street address when

the agents arrived to execute the warrant. Because Shabazz was wearing only

boxer shorts and a T-shirt, an agent located a pair of pants at Shabazz’s direction,

confirmed with Shabazz that the pants were his, and emptied the pockets. The

agent then discovered and seized a number of credit cards and identification cards

that were in a wallet in one of the pockets. One of those cards was the debit card

for the William Malone, Inc., bank account.

      The agents also executed the search warrant for the Indigent Inmate

headquarters at the Dorsey Avenue address. They seized 12 boxes of completed

Indigent Inmate applications and approximately 20 computers on which

investigators discovered over 90 fraudulent tax returns. Pennsylvania agents

created a spreadsheet with the information obtained from the completed

applications and sent the spreadsheet to the Internal Revenue Service. An

investigative analyst recorded the information in an electronic master file of tax-

return filings and noticed that 15 mailing addresses were repeatedly listed on the

returns. She then created a summary spreadsheet that showed the number of returns



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filed and the refund amount requested for the 15 addresses. More than 2,000 tax

returns included prisoner information from the Indigent Inmate files and listed one

of the 15 common addresses.

      The evidence established a number of connections between Shabazz and the

fraudulent returns. He was directly or indirectly connected to 11 of the 15

addresses. For example, Shabazz leased four of the addresses: 2945 Orr Drive,

1677 Dorsey Avenue, 1782 Neely Avenue, and 1447 Walker Avenue. And like

many of the fraudulent returns introduced at trial, Shabazz’s 2009 tax return

claimed large car and truck expenses and falsely listed Revco Discount Drug

Centers, Inc., as his employer.

      Pennsylvania agents arrested Shabazz and interviewed him twice. Shabazz

maintains that he never received a warning and never waived his rights under

Miranda v. Arizona, 384 U.S. 436 (1966). But the agents testified that they

provided Shabazz with a Miranda warning, though they could not produce a signed

waiver form or recording to corroborate their account. According to one of the

agents, Shabazz told them during the interviews that he “ran an operation or a

company known as Indigent Inmate[],” that “Dion McBride was making him out to

be the mastermind of the [tax-fraud] operation, but he wasn’t,” and that “there

were other people involved in the Pittsburgh area.”




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      Before trial, Shabazz moved to suppress his post-arrest statements on the

ground that the agents failed to provide a Miranda warning. The magistrate judge

credited the contrary testimony of the agents, and the district court adopted the

magistrate judge’s report and recommendation. The district court explained that the

two agents “offered consistent, detailed testimony of the events . . ., giving similar

accounts of the interviews.” In contrast, Shabazz “could not recall how [one]

interview concluded and could not even recall meeting with the agents twice.” It

also explained that “Shabazz ha[d] a prior conviction for fraud, which further

call[ed] into question his credibility.”

      Shabazz moved to suppress the contents of his wallet on the ground that the

search-warrant affidavit for the Dorsey and Cheney Street addresses did not

establish probable cause. The magistrate judge concluded that the affidavit was not

deficient, and the district court again adopted the magistrate judge’s report and

recommendation. It explained that Shabazz’s argument that the warrants were

“based solely upon [statements by] persons with an interest in the case as

defendants, e.g. Dion McBride” was unpersuasive because “[t]he affidavit[] also

refer[red] to evidence gathered from other sources such as transaction records,

phone records, websites[,] and surveillance.” And the affidavit “recite[d] steps that

investigators took to corroborate McBride’s statements, including contacting a

hotel where Shabazz stayed in 2010 and 2011.”



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      Shabazz also unsuccessfully opposed a pretrial motion by the government to

admit fraudulent tax returns that were not alleged in the indictment. The district

court ruled that the evidence was admissible under United States v. Ford, 784 F.3d

1386 (11th Cir. 2015). In Ford, we affirmed the admission of evidence of

uncharged conduct intrinsic to a tax-fraud scheme. Id. at 1394.

      At trial, the government introduced evidence of Shabazz’s involvement in

the scheme. It called several victims, and it introduced fraudulent tax returns that

were both charged and not charged in the indictment. And the district court

admitted, over objection, a set of photographs of Shabazz and Leslie Shabazz with

large amounts of cash. After the government explained that the pictures were

“relevant to the issue of whether or not [Shabazz] had, in fact, received illicit

proceeds,” the district court ruled that “they [were] relevant” and “d[id] tend to

prove a fact in dispute.” Shabazz also testified and denied any involvement in the

fraudulent scheme.

      On the second day of trial, Shabazz objected to wearing his prison clothes.

He entered the courtroom in his prison jumpsuit and explained to the district court

that he was wearing the jumpsuit because the marshals had not allowed him to take

his legal work with him at the end of the previous day of trial. He stated, “I can’t

take my legal work with me, because I am in jail. So why I come in here and front

like I’m not[?]”



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      The district court explained to him that it was “[his] choice” “to wear those

clothes,” but it reminded him that he did not “have to wear them” and warned him

that “it [wa]s a dangerous and mistaken notion to wear them because . . . it sends

the wrong signal to the jury.” It stated, “There is a reason that criminal defendants

are not required to wear prison garb during trials, and it is because, for some

people, that will create a presumption of guilt.” It also stressed that it did not “mind

taking the time for [Shabazz] to put [his] suit on.”

      Shabazz declined the opportunity to change his clothes. The district court

then stated, “Mr. Shabazz has elected to remain in his orange jumpsuit[,] which is

his right, but I am going to instruct the jury when they come in that they should not

infer anything regarding guilt or innocence because of his wearing [it].” Shabazz’s

counsel did not object.

      Shabazz’s counsel expressed concern about the clothing only after the jury

entered the room. At a sidebar conference, counsel told the district court, “Well, as

the jury walked out, [Shabazz] said he want[ed] to put the suit on.” The district

court refused to allow Shabazz to change. It explained that “the jury ha[d] already

seen him in the orange jumpsuit, and he . . . waived his right when he said no, and

[the district court] called the jury back in. He c[ould]n’t recall the jury after the

jury c[a]me[] in and [change his] mind . . . .” It then gave a limiting instruction as

promised.



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      At the end of the trial, the district court instructed the jury, over Shabazz’s

objection, about the rule of conspirator liability established in Pinkerton v. United

States, 328 U.S. 640 (1946). And the jury convicted Shabazz of all counts: one

count of conspiracy to defraud the government, 15 counts of wire fraud, 15 counts

of aggravated identity theft, and two counts of theft of government funds.

      At sentencing, the district court heard arguments about issues related to the

calculation of Shabazz’s Sentencing Guidelines range. It rejected Shabazz’s

argument that he did not qualify for a role enhancement because he did not

exercise control over other members of the conspiracy. It stated that it could not

“say that he did not exercise control over them” and that it “th[ought] he d[id]

satisfy the enhancement’s definition or description of one as an organizer or leader

of criminal activity.” It also ruled that the government had “proved at trial

sufficiently, beyond a preponderance of the evidence,” that it was appropriate to

calculate the intended loss amount by considering tax returns that were filed in the

names of Indigent Inmate applicants and listed one of the fifteen common

addresses—regardless of whether the evidence established that Shabazz was

directly or indirectly connected to the addresses.

      The district court sentenced Shabazz to 277 months of imprisonment, five

years of supervised release, a special assessment of $3,300, and restitution totaling




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$1,680,299. The sentence was below Shabazz’s Sentencing Guidelines range,

which was 292 to 365 months.

                                 II. DISCUSSION

      Shabazz raises multiple objections to his trial and sentence. None has merit.

We review and reject each of his arguments in turn.

    A. The District Court Did Not Err when It Admitted Evidence Seized from
         Shabazz’s Clothing as well as Shabazz’s Post-Arrest Statements.

      Shabazz argues that the district court erred when it denied his motions to

suppress the contents of his wallet as well as his post-arrest statements. We have

explained that “[a] ruling on a motion to suppress presents a mixed question of law

and fact.” United States v. Johnson, 777 F.3d 1270, 1273–74 (11th Cir. 2015)

(quoting United States v. Virden, 488 F.3d 1317, 1321 (11th Cir. 2007)). We

review findings of fact for clear error, and we review the application of the law to

the facts de novo. Id. at 1274. We must construe all facts “in the light most

favorable to the party prevailing below,” which, in this appeal, is the government.

Id. (quoting Virden, 488 F.3d at 1321). But “when an argument is first raised on

appeal, we review the argument for plain error.” Id. The district court did not err.

                       1. The Contents of Shabazz’s Wallet

      Shabazz challenges the admission of a debit card and the other contents of

his wallet, which were seized during a search of the residence at the Cheney Street

address. When the agents arrived to execute the search warrant, Shabazz was


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wearing boxer shorts and a T-shirt. He directed the agents to a pair of pants, and

they handed the pants to him after they emptied the pockets. They then seized the

contents of the wallet they found, including a debit card in the name of William

Malone, Inc. As he did before the district court, Shabazz argues that the contents of

the wallet should not have been admitted at trial because the search-warrant

affidavit did not establish probable cause. He also makes two novel arguments on

appeal: that the wallet was outside the scope of the search warrant and that the

search was impermissible under Terry v. Ohio, 392 U.S. 1 (1968). We are not

persuaded.

      We must “give ‘great deference’ to a . . . determination of probable cause

[by a district court].” United States v. Brundidge, 170 F.3d 1350, 1352 (11th Cir.

1999) (alteration adopted) (quoting United States v. Gonzalez, 940 F.2d 1413, 1419

(11th Cir. 1991)). To “establish a finding of probable cause,” United States v.

Martin, 297 F.3d 1308, 1314 (11th Cir. 2002), a search-warrant affidavit need only

contain “sufficient information to conclude that a fair probability existed that

seizable evidence would be found in the place sought to be searched,” id. (quoting

United States v. Pigrum, 922 F.2d 249, 253 (5th Cir. 1991)). “[T]he affidavit

should establish a connection between the defendant and the residence to be

searched and a link between the residence and any criminal activity.” Id.




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      The search-warrant affidavit recounted ample evidence to establish probable

cause to search the Cheney Street address. Shabazz argues that the affidavit was

based on the “unreliable and uncorroborated statements of Dion McBride,” which

were “insufficient to provide probable cause.” But, as the district court explained,

the statements by McBride were corroborated. And “when there is sufficient

independent corroboration of an informant’s information, there is no need to

establish the veracity of the informant.” Id. (alteration adopted) (quoting United

States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000)).

      The affidavit detailed an exhaustive list of evidence confirming McBride’s

statements about Shabazz’s involvement in the tax-fraud scheme. For example,

surveillance confirmed that “McBride and/or [Shabazz]” used three known

addresses to receive fraudulent tax returns. Transaction records established that

they obtained debit cards using the identities of inmates. Hotel records and

Shabazz’s bank records confirmed that Shabazz frequently traveled to Pittsburgh,

where McBride lived, for the purpose, according to McBride, of picking up

fraudulently issued debit cards. A review of bank records established that, when

Shabazz returned to Georgia, withdrawals from automated teller machines were

made in Atlanta using the fraudulently issued debit cards. Records from bank

accounts controlled by McBride established that McBride received more than

$7,000 in wire transfers from Shabazz. Surveillance videos showed Leslie Shabazz



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withdrawing money from automated teller machines using fraudulent cards.

Records from the Georgia Department of Corporations listed Leslie Shabazz as the

registered agent for Indigent Inmate. Records from the Georgia Department of

Transportation established that Leslie Shabazz resided at the Cheney Street

address. An agent observed Shabazz’s vehicle at the Cheney Street address. And

significant evidence corroborated McBride’s statements about his own

involvement in the scheme. This evidence connected Shabazz and Leslie Shabazz

to the residence and the residence to the criminal activity.

      Shabazz argues that the search of his wallet was outside the scope of the

warrant, but we disagree. The search warrant permitted the agents to seize “Green

Dot [d]ebit [c]ards, other [automated-teller-machine] cards, [g]overnment

identification cards, computers, routers, hard drives, papers, receipts, portable

electronic storage devices, [c]urrency, and other items commonly associated with

criminal activity involving fraud.” And “[a] lawful search of fixed premises

generally extends to the entire area in which the object of the search may be found

and is not limited by the possibility that separate acts of entry or opening may be

required to complete the search.” United States v. Ross, 456 U.S. 798, 820–21

(1982). Because the pockets of a pair of pants are a reasonable place to look for

debit cards and some of the other kinds of evidence identified in the search

warrant, the agents did not exceed the scope of the search warrant when they



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seized the contents of Shabazz’s wallet. And the search of the pants was not a frisk

to protect an officer’s safety, which would “restrain[] the freedom of the detainee

to walk away or otherwise remove himself from the situation.” Moore v. Pederson,

806 F.3d 1036, 1044 (11th Cir. 2015). Shabazz was not wearing the pants when the

agent seized the wallet, so he was physically able to walk away at any time. The

district court did not err.

                         2. Shabazz’s Post-Arrest Statements
       Shabazz argues that the district court clearly erred when it agreed with the

magistrate judge and credited the testimony of two agents who stated that they

gave Shabazz a Miranda warning. “We accord great deference to [a] district

court’s credibility determinations.” United States v. Gregg, 179 F.3d 1312, 1316

(11th Cir. 1999). And in circumstances where “the officers’ testimonies are in

direct conflict with [the defendant’s] testimon[y], various courts have held that a

‘trial judge’s choice of whom to believe is conclusive on the appellate court unless

the judge credits exceedingly improbable testimony.’” United States v. Ramirez-

Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (alteration adopted) (quoting United

States v. Cardona-Rivera, 904 F.2d 1149, 1152 (7th Cir. 1990)). We must accept

the evidence credited by the district court “unless it is contrary to the laws of

nature, or is so inconsistent or improbable on its face that no reasonable factfinder




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could accept it.” Id. (quoting United States v. Eddy, 8 F.3d 577, 580 (7th Cir.

1993)).

      Although it would have been better practice for the agents to have recorded

Shabazz’s waiver, their testimony was far from “exceedingly improbable.” Id.

(emphasis omitted) (quoting Cardona-Rivera, 904 F.2d at 1152). Shabazz

underscores that the police report did not state that either agent recited a warning

and that the agents could not produce a signed waiver, recording, or other

“contemporaneously created record” of the interview. But the district court

explained that one agent’s testimony that he inadvertently left the warning out of

his report was not “improbable or suspicious.” And it stressed that the two agents

“offered consistent, detailed testimony [about] the [interviews].” In contrast,

Shabazz “could not recall how [one] interview concluded and could not even recall

meeting with the agents twice.” And Shabazz “ha[d] a prior conviction for fraud,

which further call[ed] into question his credibility.” The absence of corroborating

evidence, standing alone, does not permit us to reverse the credibility

determination by the finder of fact. The district court did not clearly err.

       B. The District Court Did Not Abuse Its Discretion when It Admitted
       Evidence of Uncharged Conduct and Photographs of Shabazz and Leslie
                        Shabazz with Large Sums of Money.
      Shabazz challenges the admission of evidence of uncharged conduct and the

photographs of him and his wife with large sums of money under Federal Rules of



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Evidence 401, 403, and 404. We review rulings on the admissibility of evidence

for abuse of discretion. Ford, 784 F.3d at 1392. We have stressed that, under Rule

401, the district court possesses “broad discretion to admit evidence if it has any

tendency to prove or disprove a fact in issue.” United States v. Smith, 459 F.3d

1276, 1295 (11th Cir. 2006) (quoting United States v. Norton, 867 F.2d 1354, 1361

(11th Cir. 1989)). That discretion is subject only to narrow statutory and

constitutional caveats. Rule 404(b) provides that “[e]vidence of a crime, wrong, or

other act is not admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with th[at] character.” Fed. R.

Evid. 404(b)(1). And Rule 403 provides that a district court “may exclude relevant

evidence if its probative value is substantially outweighed by a danger of . . . unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Fed. R. Evid. 403. But we have

underscored that Rule 403 “should be used only sparingly” and that we must “look

at the evidence in a light most favorable to its admission, maximizing its probative

value and minimizing its undue prejudicial impact.” Smith, 459 F.3d at 1295

(citations and internal quotation marks omitted).

      The district court did not abuse its discretion. Neither Rule 404(b) nor Rule

403 barred admission of the disputed evidence. Both the evidence of uncharged

conduct and the photographs were admissible.



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                       1. The Evidence of Uncharged Conduct

      Shabazz argues that the uncharged tax returns and the victims’ testimony

about uncharged conduct were inadmissible under Rule 404(b). The admissibility

of evidence of uncharged conduct depends on whether the evidence is extrinsic or

intrinsic to the charged offense. If the evidence is “(1) an uncharged offense which

arose out of the same transaction or series of transactions as the charged offenses,

(2) necessary to complete the story of the crime, or (3) inextricably intertwined

with the evidence regarding the charged offenses,” then it is admissible as intrinsic

evidence as long as it satisfies the requirements of Rule 403. Ford, 784 F.3d at

1393 (alterations adopted) (citation and internal quotation marks omitted). On the

other hand, if the evidence is extrinsic, then Rule 404(b) prohibits its admission

unless the evidence is offered for some purpose other than proving the defendant’s

character “to show that on a particular occasion [he] acted in accordance with

th[at] character.” Fed. R. Evid. 404(b)(1).

      In Ford, we held that evidence of uncharged tax returns that were

“inextricably intertwined with the scheme charged in the indictment” was

admissible as intrinsic evidence “outside the scope of Rule 404(b).” 784 F.3d at

1394. In Ford, the defendant was prosecuted for filing fraudulent tax returns using

personal identifying information that she acquired under false pretenses, and the

district court admitted the testimony of victims of “uncharged, but substantially



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similar, conduct.” Id. at 1390. And we affirmed that ruling, reasoning that

“evidence of uncharged conduct that is part of the same scheme or series of

transactions and uses the same modus operandi as the charged offenses is

admissible as intrinsic evidence.” Id. at 1394. We explained that the testimony

concerned returns that were “filed by [the defendant], during the same time period,

and using the same methods.” Id. And we underscored that, like the returns

charged in the indictment, many of the relevant uncharged returns contained false

Schedule C information, used the same common addresses, claimed the same

common false dependents, or involved homeless victims. Id.

      The uncharged conduct in this appeal is similarly “inextricably intertwined”

with the charged scheme. Id. The government charged Shabazz with conspiracy to

defraud the United States by using the personal identifying information of Indigent

Inmate applicants to submit fraudulent tax returns. And as in Ford, the uncharged

returns were substantially similar to the charged returns. They were all filed in the

names and with the social security numbers of prisoners who had applied to

Indigent Inmate. They all claimed refunds for the same time period. They all listed

one of fifteen common addresses. And they had other similar features, such as

Schedule C forms that claimed large car and truck expenses and false W-2s that

listed Revco or CVS, which acquired Revco, as the employer. We disagree with




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Shabazz that the charged and uncharged returns shared only “traits inherent in all

inmate tax fraud schemes.”

      Shabazz misunderstands our precedent when he contends that the evidence

was inadmissible because it “was not necessary to prove the conspiracy charged in

Count 1” or otherwise “required” to explain the conspiracy. Our precedent does not

demand that intrinsic evidence establish an element of a charged offense. It is

enough that the uncharged evidence was an “integral and natural part of [the]

account” of the tax-fraud conspiracy. United States v. Troya, 733 F.3d 1125, 1131

(11th Cir. 2013) (quoting United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir.

2007)).

      Shabazz also argues that the evidence should have been excluded under Rule

403 because it was substantially more prejudicial than probative, but we disagree.

In similar cases, we have “refused to find” that “other acts evidence inextricably

intertwined with the crimes charged . . . should nonetheless be excluded as unduly

prejudicial.” United States v. U.S. Infrastructure, Inc., 576 F.3d 1195, 1211 (11th

Cir. 2009) (collecting cases). And we will not do so here. The evidence of

uncharged conduct was highly probative of the existence of a conspiracy, and we

cannot say that it was “dragged in by the heels solely for prejudicial impact.”

United States v. Wilson, 788 F.3d 1298, 1314 (11th Cir. 2015) (citation and

internal quotation marks omitted). The district court did not abuse its discretion.



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      2. The Photographs of Shabazz and Leslie Shabazz with Large Sums of
                                     Money

      Shabazz argues that the photographs of him and Leslie Shabazz with large

stacks of currency were irrelevant because the government failed to introduce

evidence of the origin of the funds or the time, place, or context of the

photographs, but we disagree. We have held that “[t]he government [i]s entitled to

show that [a defendant] . . . experienced a sudden acquisition of large sums of

money from unexplained sources in order to prove that he . . . received substantial

income and resources from the continuing criminal enterprise with which he was

charged.” Gonzalez, 940 F.2d at 1423. The government is not even required to

“trace the source of . . . new wealth” if “the charged crime involves pecuniary gain

and the [g]overnment presents other evidence of the defendant’s guilt.” United

States v. Lattimore, 902 F.2d 902, 903 (11th Cir. 1990). Shabazz had a host of

financial obligations, including the support of multiple wives and 22 children, and

he argued that he satisfied those obligations by running a music-promotion

business, raising chickens and selling eggs, and running a car-detail business. The

large sums of money depicted in the photographs were suspicious in the light of

those financial circumstances and “properly admissible as circumstantial evidence

of [Shabazz’s] involvement in a crime involving pecuniary gain.” Id. at 903.

      Shabazz also alludes to the possibility that the photographs were unduly

prejudicial, but if there was a risk of unfair prejudice, it did not substantially


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outweigh the probative value of the photographs. See United States v. Williams,

865 F.3d 1328, 1341 (11th Cir. 2017) (“Federal Rule of Evidence 403 requires a

showing that the prejudicial effect of relevant evidence substantially outweighs its

probative value.”). The district court did not abuse its discretion.

     C. The District Court Did Not Violate Shabazz’s Right Not To Wear Jail
                                      Clothes.

      Shabazz argues that the district court violated his right not to wear jail

clothes on the second day of trial. As a threshold matter, we acknowledge a

citation error in our case law. We stated in United States v. Graham that “[i]t is a

Fourteenth Amendment violation to compel an accused to stand trial before a jury

while dressed in identifiable prison clothes.” 643 F.3d 885, 895 (11th Cir. 2011)

(citation and internal quotation marks omitted). That statement would have been

true had Graham involved a state trial because the Fourteenth Amendment forbids

state deprivations of federal civil rights. To be sure, both the Fourteenth

Amendment and the Fifth Amendment provide that no person shall be deprived “of

life, liberty, or property, without due process of law,” U.S. Const. amends. V, XIV,

but only the Fifth Amendment protects the accused in a federal trial. The doctrine

is the same under the Fifth Amendment, and our decision in Graham makes clear

that when, as here, the defendant waives his right to appear in street clothes, he

may not later complain about the consequences of his decision.




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      In Graham, we held that a defendant may not “create[] his own problem” by

wearing jail clothes for “strategic advantage” and then seek reversal because he

chose to wear those clothes. 643 F.3d at 895, 896. The defendant in Graham had

previously told the district court that he would obtain street clothes to wear during

the trial. Id. at 895. But on the day of trial, “he had no street clothes, no

explanation for why he lacked them, and no proposal for a way to get any without

delaying the trial.” Id. His counsel also sought to use his attire for strategic

advantage. Id. at 892, 896. His counsel explained in his opening statement that the

defendant “want[ed] everybody to know” that he was in jail, and the defendant

testified that he was “wearing [jail clothes] because of the things that the

[g]overnment ha[d] done to [him.]” Id. at 896. We rejected the defendant’s

argument that the district court erred by refusing to allow him to change. Id. at 895.

We held that the defendant “created his own problem” and that “the district court

properly refused to delay the trial.” Id.

      In a similar vein, Shabazz waived his Fifth Amendment right when he

rejected the “strong suggestion” of the district court to change into street clothes.

As in Graham, Shabazz voluntarily sought to use his attire for strategic advantage

so that the jury would not get “the wrong impression” and forget that he was a

prisoner. Indeed, unlike the defendant in Graham, Shabazz explicitly waived his

right when he declined the opportunity to change. The district court went out of its



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way to explain that “criminal defendants are not required to wear prison garb

during trials, and it is because, for some people, that will create a presumption of

guilt.” It stated that he “may be frustrated with the system, and frustrated with

perceived injustices, but . . . [he] shouldn’t let that spill over into [his] choice of

clothes to wear before th[e] jury.” Although it acknowledged that it could not

“make [him]” change, it urged him to “do the smart thing and put [his] suit back

on.” And it explained that it did not “mind taking the time [to allow him] to put

[his] suit on.” But Shabazz refused the invitation and waited until the jury entered

the room to object. As in Graham, the district court “properly refused to delay the

trial” because Shabazz “appeared in jail clothes before the jury as a result of his

own conduct.” Id.

      We also reject Shabazz’s argument that the limiting instruction issued by the

district court “compounded the problem by calling undue attention to the

inappropriate clothing and placing the blame for such attire solely upon

[Shabazz].” Shabazz never objected to that instruction, and we must presume that

the jury followed the instruction not to hold Shabazz’s attire against him. See

United States v. Almanzar, 634 F.3d 1214, 1223 (11th Cir. 2011).

       D. The District Court Did Not Err when It Gave the Jury a Pinkerton
                                    Instruction.

      Shabazz argues that the district court erred when it instructed the jury about

conspirator liability because there was insufficient evidence that Shabazz joined a


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conspiracy and because the particular wording of the instruction did not

appropriately guide the jury in its deliberations. Under the rule enunciated in

Pinkerton, “[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. Silvestri, 409 F.3d

1311, 1335 (11th Cir. 2005) (emphasis omitted) (quoting United States v.

Mothersill, 87 F.3d 1214, 1218 (11th Cir. 1996)). The substantive offenses must

only be a “reasonably foreseeable consequence of the conspiracy.” Id. at 1336

(quoting Mothersill, 87 F.3d at 1218). It follows that a district court does not err in

giving a Pinkerton instruction if “the evidence was sufficient for a reasonable jury

to have concluded, beyond a reasonable doubt, that the [substantive counts were]

reasonably foreseeable consequence[s] of the . . . conspiracy alleged in the

indictment.” United States v. Alvarez, 755 F.2d 830, 848 (11th Cir. 1985). “[W]e

must view the evidence in the light most favorable to the government and accept

all reasonable inferences and credibility choices made by the jury.” Id. (internal

citation omitted).

      Ample evidence supported the conclusion that Shabazz joined a conspiracy

to defraud the United States, 18 U.S.C. § 371, and that the offenses charged in the

substantive counts were reasonably foreseeable consequences of that conspiracy.



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To establish a conspiracy, “the government must prove beyond a reasonable doubt

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

defendant, with knowledge, voluntarily joined it.” United States v. Nerey, 877 F.3d

956, 968 (11th Cir. 2017) (quoting United States v. Vernon, 723 F.3d 1234, 1273

(11th Cir. 2013)). “The existence of an agreement may be proven by circumstantial

evidence, including ‘inferences from the conduct of the alleged participants or

from circumstantial evidence of a scheme.’” Silvestri, 409 F.3d at 1328 (quoting

United States v. Tamargo, 672 F.2d 887, 889 (11th Cir. 1982)). Shabazz does not

deny the existence of a conspiracy to defraud the United States. He instead argues

that he “was a figurehead for the Indigent Inmate charity, which someone used in

furtherance of a tax fraud scheme.” But the evidence established that Shabazz

founded and financed Indigent Inmate, that Shabazz personally rented several of

the addresses used in the scheme and installed other individuals to live at some of

the addresses, and that at least two bank cards in prisoners’ names were found in

Shabazz’s wallets. Shabazz also testified and denied that he knew of or joined a

conspiracy, and “a statement by a defendant, if disbelieved by the jury, may be

considered as substantive evidence of the defendant’s guilt,” particularly when the

“elements to be proved for a conviction include highly subjective elements [like]

the defendant’s intent or knowledge.” United States v. Brown, 53 F.3d 312, 314,

315 (11th Cir. 1995). “Having seen and heard” Shabazz’s testimony, “the jury was



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free to discredit h[is] explanation, to infer that the opposite of what []he said was

true, and to consider that inference as substantive evidence of h[is] guilt.” United

States v. Hough, 803 F.3d 1181, 1188 (11th Cir. 2015).

      The substantive counts were also reasonably foreseeable consequences of

the conspiracy. For example, a conspiracy to defraud the government by

submitting fraudulent tax returns may naturally involve wire fraud due to the

submission of the returns. We reject Shabazz’s argument that the Pinkerton

instruction prompted the jury “to extrapolate backwards and find Shabazz guilty of

the conspiracy charge” based on evidence of a series of unrelated criminal acts.

      Shabazz also contends that the instruction “relieved the government of its

burden of proof” because it “t[old] the jury to consider merely what was

reasonably foreseeable to Shabazz” without “direct[ing] the jury to determine when

he obtained the requisite knowledge.” We have explained that a district court “is

given wide discretion as to the style and wording employed in [a jury] instruction”

as long as the “instruction[] accurately reflect[s] the law.” United States v.

Verbitskaya, 406 F.3d 1324, 1330–31 (11th Cir. 2005). We must consider the jury

charge as a whole, and we may reverse “only if we are left with a substantial and

ineradicable doubt as to whether the jury was properly guided in its deliberations.”

Id. at 1331 (quoting United States v. Fulford, 267 F.3d 1241, 1245 (11th Cir.

2001)).



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         The district court accurately stated the law and “properly guided” the jury in

its deliberations when it repeated, almost verbatim, the pattern instruction. See

Pattern Crim. Jury Instr. OI O13.5 (2016). The instruction did not suggest that

Shabazz could be held liable for crimes that occurred before he joined the

conspiracy because the district court stated that the defendant must have been a

member of the conspiracy “when the [substantive] crime[s] w[ere] committed.”

Shabazz also misunderstands our precedent when he argues that the district court

should have clarified that Shabazz had to have “advance knowledge . . . that others

were using information from Indigent Inmate to commit the substantive offenses.”

Pinkerton liability attaches “notwithstanding [a defendant’s] non-participation in

the offense or lack of knowledge thereof” if the substantive offenses were a

“reasonably foreseeable consequence of the conspiracy.” Silvestri, 409 F.3d at

1335–36 (citations and internal quotation marks omitted). Finally, the instruction

was clear that the jury had to find the elements of Pinkerton liability “beyond a

reasonable doubt,” so the district court did not impermissibly shift the burden of

proof.

                E. Sufficient Evidence Supports Shabazz’s Convictions.

         Shabazz argues that there was insufficient evidence to support his

convictions because the government failed to prove that he joined a conspiracy and

that the “non-testifying inmates named in the respective aggravated identity theft



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counts[] were real people who did not authorize use of their identifiers.” We

review the sufficiency of the evidence de novo, “view[ing] the evidence and all

reasonable inferences derived therefrom in the light most favorable to the

government.” Nerey, 877 F.3d at 967. The “[e]vidence will be deemed sufficient to

sustain a conviction unless ‘no rational trier of fact could have found proof of guilt

beyond a reasonable doubt.’” Id. (quoting United States v. Diaz, 248 F.3d 1065,

1093 (11th Cir. 2001)).

      We have already explained that ample evidence supports the conspiracy

conviction. We underscore only that Shabazz’s insistence that the case against him

was not as strong as it possibly could have been is irrelevant. Our precedent makes

clear that “[i]t is not necessary for the government’s evidence to be inconsistent

with every reasonable hypothesis except that of guilt in order to be sufficient.”

Silvestri, 409 F.3d at 1328.

      We also reject Shabazz’s argument that the government failed to prove that

he committed aggravated identity theft because the government offered no

evidence that he “knew that the means of identification he used belonged to” “real

people who did not authorize use of their identifiers.” To be sure, the statute

requires the government to prove that the defendant “knew that the identity [used

in the scheme] belonged to a real person.” United States v. Gomez-Castro, 605

F.3d 1245, 1248 (11th Cir. 2010) (discussing 18 U.S.C. § 1028A(a)(1)). But the



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government may “rely on circumstantial evidence about an offender’s misuse of a

victim’s identity to prove the offender knew the identity belonged to a real

person.” Id. at 1249. The government introduced the Indigent Inmate application

for each of the inmates as well as the fraudulent tax return that was filed for each

inmate. And the rest of the evidence, viewed in the light most favorable to the

government, established that Shabazz opened a sham charity for prisoners to

collect the personal identifying information of real inmates to use for fraudulent

purposes. The jury was entitled to draw the reasonable inference that Shabazz

knew that he was using information that belonged to real people. Indeed, when he

testified, Shabazz denied that he filed the fraudulent returns, but admitted that the

returns used the personal identifying information found in the Indigent Inmate

applications of real people. He stated, “[S]omebody got ahold of them folks’s

information and, you know, somebody start[ed] filing taxes on a lot of them.”

Sufficient evidence supports Shabazz’s convictions.

   F. The District Court Did Not Err when It Calculated Shabazz’s Sentencing
        Guidelines Range, Nor Did It Impose a Substantively Unreasonable
                                     Sentence.
      Shabazz argues that the district court erred when it imposed a role

enhancement and considered uncharged conduct when calculating the loss amount,

and he argues that the district court imposed a substantively unreasonable sentence

because his crimes were not particularly malicious and the sentence he received



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was greater than average fraud and theft sentences. We review de novo the

interpretation of the Guidelines by the district court and the application of the

Guidelines to the facts. United States v. Cubero, 754 F.3d 888, 892 (11th Cir.

2014). We review for clear error the factual findings of the district court, including

its role-enhancement and loss-amount determinations. Id.; United States v.

Caraballo, 595 F.3d 1214, 1231 (11th Cir. 2010) (role-enhancement

determinations); Ford, 784 F.3d at 1396 (loss-amount determinations). And we

review the substantive reasonableness of a sentence for abuse of discretion. See

Cubero, 754 F.3d at 898.

                         1. The Four-Level Role Enhancement
      Shabazz argues that the district court clearly erred when it applied a four-

level enhancement for his role as a leader of the conspiracy. Under section 3B1.1,

“[t]he government bears the burden of proving by a preponderance of the evidence

that the defendant had an aggravating role in the offense.” United States v. Yeager,

331 F.3d 1216, 1226 (11th Cir. 2003). A district court may increase a defendant’s

offense level by four levels “if the defendant ‘was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise

extensive.’” Id. (quoting U.S.S.G. § 3B1.1(a)). But the defendant need only have

been “the organizer, leader, manager, or supervisor of one or more other




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participants.” U.S.S.G § 3B1.1 cmt. n.2. We determine whether a defendant was an

organizer or leader by considering the following several factors:

      (1) the exercise of decision making authority, (2) the nature of
      participation in the commission of the offense, (3) the recruitment of
      accomplices, (4) the claimed right to a larger share of the fruits of the
      crime, (5) the degree of participation in planning or organizing the
      offense, (6) the nature and scope of the illegal activity, and (7) the
      degree of control and authority exercised over others.

Caraballo, 595 F.3d at 1231 (quoting United States v. Gupta, 463 F.3d 1182, 1198

(11th Cir. 2006)). “In many of the cases where we have affirmed a finding that a

defendant played a leadership or organizational role under [section] 3B1.1(a), there

was evidence that the defendant had recruited participants, had instructed

participants, or had wielded decision-making authority.” Id. (collecting cases).

      Substantial evidence established that Shabazz managed the Indigent Inmate

scheme. His employees testified that Shabazz founded Indigent Inmate, financed

its operations, and hired and managed the employees. Indeed, Sheena Shabazz,

who managed the day-to-day operations, and Leslie Shabazz reported to him. And

the evidence established that Shabazz directed Leshun Boyd-Gordon, a client of

Shabazz’s music-promotion business, to live at one of the common addresses listed

on a number of fraudulent tax returns, including the William Malone return.

      The district court was also entitled to find that the scheme involved at least

five participants. In addition to Sheena Shabazz, Leslie Shabazz, and Boyd-

Gordon, both Shabazz’s sister, Camille Moore, and his cousin, Nathan Moore,

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participated in the scheme. Both worked at another of Shabazz’s businesses, and

both rented or occupied residences that multiple Indigent Inmate tax returns listed

as a taxpayer address. And Shabazz confessed to the investigating agents that Dion

McBride was involved and that “there were other people involved in the Pittsburgh

area.” The district court did not clearly err.

      Finally, Shabazz unpersuasively argues that the district court impermissibly

shifted the burden of proof so that Shabazz was forced to disprove that he had an

aggravating role in the scheme. In support, he cherry picks a stray comment by the

district court that it “can’t say that he did not exercise control over” the individuals

involved in the conspiracy. But the context of that statement makes clear that the

district court correctly applied the law to the facts. In response to defense counsel’s

argument that Shabazz did not “exercise control over any of the[] individuals

[involved in the scheme] and that that is what is required,” the district court stated,

      I don’t agree with that. I can’t say that he did not exercise control over
      them. I don’t think that’s true. I think he did. I think he does satisfy
      the enhancement’s definition or description of one as an organizer or
      leader of criminal activity, so I am going to add 4 levels . . . .

The district court plainly found that “he d[id] satisfy the enhancement’s definition

or description.”

                            2. The Intended Loss Amount

      Shabazz also argues that the district court clearly erred when it calculated

the intended loss amount. The district court estimated the loss amount by


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considering all tax returns that were filed in the names of Indigent Inmate

applicants and listed one of fifteen common addresses as the taxpayer address—

regardless of whether those addresses were directly or indirectly linked to Shabazz.

Shabazz concedes that he may be held accountable for the returns that included the

addresses of the four properties he personally leased, but he maintains that it was

clear error to consider the returns that included the addresses for the other eleven

properties because the government failed to establish by a preponderance of the

evidence using “reliable and specific evidence” that the addresses were

“connect[ed] to him” or “within the scope of any agreement with others.” We

disagree.

      In Ford, we held that the district court did not clearly err when it calculated

the loss amount for a tax-fraud scheme based on the losses from returns that used

one of several common addresses. 784 F.3d at 1396–97. We explained that the

district court reviewed summary charts prepared by the Internal Revenue Service

and that the investigating agent “interviewed as many victims as he could locate

and visited each address and confirmed that it was highly unlikely that these

addresses housed the individuals who were identified as residing there.” Id. at

1396. We determined that, “[h]aving heard this testimony and the trial testimony,

and having reviewed the evidence, the district court reasonably concluded that the




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government had proven by a preponderance of the evidence that the ‘common

address’ returns were fraudulent.” Id. at 1397.

      The district court was entitled to rely on the same methodology here. The

evidence at trial established that Shabazz founded and financed Indigent Inmate.

The district court considered only those tax returns that were filed in the names of

Indigent Inmate applicants and listed one of fifteen common addresses as the

taxpayer address. And eleven of the fifteen addresses were either directly or

indirectly linked to Shabazz. For example, Nathan Moore, Shabazz’s cousin and

employee, owned 1394 Metropolitan Parkway, and Shabazz listed that address as

his present address and Moore as the owner of that residence in his rental

application for 2945 Orr Drive. And Shabazz permitted his client, Boyd-Gordon, to

reside and then take over the lease at one of his properties, and Boyd-Gordon listed

Shabazz as an additional occupant when he applied to rent 2007 Sharp Street.

Although investigators did not discover a similarly clear link between Shabazz and

the remaining four addresses, it was reasonable for the district court to consider the

returns that listed those addresses in the light of the significant evidence at trial that

linked information from Indigent Inmate applications to fraudulent tax returns that

listed a common address that was under Shabazz’s control. Even if Shabazz was

not personally involved in collecting the fraudulent refunds mailed to those

addresses, there was sufficient evidence to conclude that the properties at those



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addresses were used in the criminal conspiracy. And if a defendant is involved in

“jointly undertaken criminal activity,” then “all acts and omissions . . . reasonably

foreseeable in connection with that criminal activity” are relevant. U.S.S.G.

§ 1B1.3(a)(1)(B); see United States v. Rodriguez, 751 F.3d 1244, 1256 (11th Cir.

2014).

       Shabazz responds that Ford is inapposite because, unlike the defendant in

Ford, he did not file the returns himself and the methodology resulted in a far

higher loss amount here than the loss amount in Ford, but we are unpersuaded.

Although Shabazz may not have filed the returns himself, he was similarly

connected to the fraudulent returns through Indigent Inmate. And no part of the

reasoning in Ford turned on the magnitude of the resulting loss amount. The

district court did not clearly err.

                 3. The Substantive Reasonableness of the Sentence
       Shabazz argues that his sentence is substantively unreasonable for a variety

of reasons that minimize the seriousness of his offenses, belittle the victims of his

crimes, and draw irrelevant comparisons between his sentence and average fraud

and theft sentences nationwide. We review for abuse of discretion whether a

sentence is substantively unreasonable by considering “the totality of the

circumstances” under the statutory sentencing factors, 18 U.S.C. § 3553(a).

Cubero, 754 F.3d at 892. We have underscored that we must give “due deference”



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to the district court because it has an “institutional advantage” in making

sentencing determinations. Id. (quoting United States v. Shaw, 560 F.3d 1230,

1238 (11th Cir. 2009)). “We may vacate a sentence only if we are left with the

definite and firm conviction that the district court committed a clear error of

judgment in weighing the [section] 3553(a) factors by arriving at a sentence that

lies outside the range of reasonable sentences dictated by the facts of the case.” Id.

at 892–93 (citation and internal quotation marks omitted). “We ordinarily expect a

sentence within the Guidelines range to be reasonable.” United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008). And the party challenging the sentence

bears the burden to show that it is “unreasonable in light of the record and the

[section] 3553(a) factors.” Id.

      Shabazz’s sentence is reasonable. His sentence of 277 months of

imprisonment was below the low end of the Guidelines range, which was 292 to

365 months, and the district court correctly considered the relevant sentencing

factors. It stated that it had “carefully considered all of the sentencing factors set

forth in . . . [s]ection 3553(a),” although it acknowledged that it placed particular

weight on “the nature and circumstances of the offense and the history,

characteristics [sic] of the defendant.” That factor “predominated . . . probably over

any one particular factor,” though “not over all six of the others.” We have held

that “[a]n acknowledgment [that] the district court has considered the defendant’s



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arguments and the [section] 3553(a) factors will suffice.” Id. And though Shabazz

maintains that the statements the district court made about the seriousness and

mercilessness of his crimes were “over-kill,” we have held that a district court may

attach “great weight” to one factor, Cubero, 754 F.3d at 892 (quoting Shaw, 560

F.3d at 1237), including “the nature and circumstances of the offense,” 18 U.S.C.

§ 3553(a)(1). The district court did not abuse its discretion.

                                III. CONCLUSION

      We AFFIRM Shabazz’s convictions and sentence.




                                          38
