           Case: 17-11930   Date Filed: 06/25/2018   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-11930
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:16-cr-00165-PGB-GJK-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

MANUEL ENRIQUE SANTANA,

                                                         Defendant-Appellant.

                      ________________________

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

                             (June 25, 2018)

Before WILSON, WILLIAM PRYOR and JORDAN, Circuit Judges.

PER CURIAM:
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      Manuel Enrique Santana appeals following his convictions and sentence of

imprisonment of 48 months for ten counts of theft of government property, 18

U.S.C. § 641, and five counts of aggravated identity theft, id. § 1028A(a)(1).

Santana argues that the government presented insufficient evidence that he knew

that the checks were stolen, that the district court erred when it applied a two-level

sentencing enhancement for obstruction of justice, United States Sentencing

Guidelines Manual § 3C1.1 (Nov. 2016), and that his sentence is substantively

unreasonable. We affirm.

      Several standards govern our review of this appeal. We review de novo

whether sufficient evidence supports a conviction. United States v. Jiminez, 564

F.3d 1280, 1284 (11th Cir. 2009). We view the record in the light most favorable

to the government and resolve all reasonable inferences in favor of the verdict.

United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). Credibility

questions are the province of the jury. United States v. Miranda, 425 F.3d 953, 959

(11th Cir. 2005). The evidence need not exclude every reasonable hypothesis of

innocence for a jury to find guilt beyond a reasonable doubt. United States v. Cruz-

Valdez, 773 F.2d 1541, 1545 (11th Cir. 1985) (en banc). When a defendant

testifies in his own defense, “he runs the risk that if disbelieved the jury might

conclude the opposite of his testimony is true.” United States v. Brown, 53 F.3d

312, 314 (11th Cir. 1995) (internal quotation marks and citation omitted). We


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review the interpretation of the Sentencing Guidelines de novo and related factual

findings for clear error. United States v. Doe, 661 F.3d 550, 565 (11th Cir. 2011).

We review the reasonableness of a sentence for abuse of discretion. Gall v. United

States, 552 U.S. 38, 41 (2007). Ordinarily we expect a sentence that falls within the

guideline range to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th

Cir. 2008).

      Santana contends that the district court erred when it denied his motion for

judgment of acquittal for the ten counts of theft of government property. For those

counts, the government was required to prove that the money or property belonged

to the government, the defendant fraudulently appropriated the money or property

to his own use or the use of others, and he did so knowingly with the intent to

deprive the government of the money or property. United States v. McRee, 7 F.3d

976, 980 (11th Cir. 1993); see 18 U.S.C. § 641. In United States v. Wilson, 788

F.3d 1298, 1309 (11th Cir. 2015), we held that there was sufficient evidence from

which a reasonable jury could find that the defendant knowingly converted tax-

refund checks because none of the six named-payees of the tax-refund checks had

ever done business with him and none had endorsed the checks he deposited. And

we held that the jury could infer from the amount of deposits over a short span of

three months that the defendant was not running a legitimate check-cashing

business. Id. We reject Santana’s argument.


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      Sufficient evidence supports the jury’s verdict that Santana knowingly stole

the tax-refund checks. Although Santana testified that he checked identifications to

match the payee on every check he cashed, the payees testified that they never

signed the checks or visited the restaurant where Santana worked. The jury was

entitled to disbelieve Santana and consider his discredited testimony as evidence of

his guilt. See Brown, 53 F.3d at 314. And Santana’s rate of deposits over a short

period of time allowed the jury reasonably to infer that his check-cashing business

was a scam. See Wilson, 788 F.3d at 1309.

      Santana also challenges the denial of his motion for judgment of acquittal

for the five counts of aggravated identity theft. For those counts, the government

was required to prove that Santana knowingly transferred, possessed, or used the

means of identification of another person without lawful authority “during and in

relation to a predicate act . . . , including access device fraud.” United States v.

Pierre, 825 F.3d 1183, 1194 (11th Cir. 2016) (internal quotation marks and citation

omitted); see 18 U.S.C. § 1028A. We have held that a person’s name and forged

signature is a means of identification. Wilson, 788 F.3d at 1310. The government

must prove that defendant knew the means of identification belonged to another

person. Flores-Figueroa v. United States, 556 U.S. 646, 657 (2009). We again

reject Santana’s argument.




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      Sufficient evidence supports the jury’s verdict that Santana committed

aggravated identity theft. The payee’s names and signatures were plainly means of

identification, and the evidence showed that Santana deposited checks that had the

signatures of what appeared to be the payees, even though the payees testified that

they did not sign the checks issued in their name. Wilson, 788 F.3d at 1310.

      Santana also challenges the enhancement of his sentence for obstruction of

justice. A defendant’s offense level is increased by two levels if he willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of

justice with respect to the investigation, prosecution, or sentencing of the instant

offense, such as by committing perjury. U.S.S.G. § 3C1.1 & cmt. n.4(B). This

enhancement does not apply in every instance where a defendant denies guilt, but

it does apply where the denial under oath constitutes perjury. Id. cmt. n.2 & 4(B).

Perjury occurs where “[a] witness testifying under oath . . . gives false testimony

concerning a material matter with the willful intent to provide false testimony,

rather than as a result of confusion, mistake, or faulty memory.” United States v.

Dunnigan, 507 U.S. 87, 94 (1993). In Dunnigan, the Supreme Court affirmed an

obstruction-of-justice enhancement where numerous witnesses contradicted the

defendant’s testimony. Id. at 89–90, 94. The district court must make an

independent factual finding that the defendant gave perjured testimony on a




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material matter. Id. at 95; United States v. Vallejo, 297 F.3d 1154, 1168 (11th Cir.

2002). Santana’s argument fails.

      The finding that Santana testified falsely was not clearly erroneous. The jury

credited the evidence presented by the government and discredited Santana’s

testimony that he had checked the payees’ identification for each of the tax-refund

checks. The evidence was in direct contradiction, and it was not clear error to

believe the testimony of the numerous payees over Santana’s testimony. See Cruz-

Valdez, 773 F.2d at 1545. The district court made an adequate finding when it

found that Santana’s testimony about how he checked the person’s identification

for each check was designed to mislead the jury into thinking that his actions were

legitimate. See Dunnigan, 507 U.S. at 95.

      Santana’s sentence is also reasonable. The district court sentenced Santana at

the low end of the advisory guidelines range for the theft of government property

counts followed by the statutory mandatory sentences for aggravated identity theft.

The district court weighed the proper sentencing factors and did not abuse its

discretion.

      AFFIRMED.




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